National media tend to assume conservative Justice Antonin Scalia's vote in the upcoming Voting Rights Act case - Shelby County v. Holder - is a foregone conclusion because of his decisions on other questions that involve race, such as school desegregation. But Scalia's approach to remedies for impermissible racial discrimination, the harm that the Voting Rights Act addresses, has respected prior rulings and Congressional action, a noteworthy position considering the constitutionality of the Voting Rights Act has been repeatedly upheld.
To be clear: traditional swing-vote Justice Anthony Kennedy is more amenable to legislation and policies that take race into account than Justice Scalia. Unlike Scalia, Kennedy has explicitly disavowed Chief Justice John Roberts' radical request that the Court refuse to approve any government recognition of race, ever. Therefore, it is understandable that the media focuses on Kennedy when speculating over which conservative Justice might uphold the "preclearance" provision within the Voting Rights Act - Section 5 - that requires states with a history of racial discrimination submit election practice changes for federal review and approval.
For example, The New York Times reported the reasons that Kennedy, who has rejected the ahistorical "colorblind" approach to constitutional law even as he struck down specific school integration plans, might also reject the challenge to the constitutionality of Section 5:
The issue in Shelby County is whether Section 5 of the Voting Rights Act, viewed as the nation's most effective civil rights law, remains necessary to prevent racially biased voting laws in nine states and parts of seven others with egregious histories of discrimination against minority voters.
In the Shelby County case, as a federal trial court and a federal appeals court found, there is no room for equivocation [as in recent school desegregation cases]. If Justice Kennedy votes to strike down Section 5, he will be calling a halt to an unfinished effort to end what the Supreme Court once called "an insidious and pervasive evil."
Congress gathered an enormous amount of evidence in 2006 about the persistence of voting discrimination in covered jurisdictions. It found that discrimination was still heavily concentrated in those places and so widespread that case-by-case litigation -- what Justice Kennedy has called "very expensive," "very long" and "very inefficient" -- is inadequate.
Without Section 5, from 1968 through 2004 more than 1,500 discriminatory voting changes would have gone into effect. And last year, Section 5 blocked attempts to discriminate against voters in many parts of the country.
In an interview with former Secretary of State Colin Powell, Fox News host Bill O'Reilly ignored key legal problems for photo voter ID laws under the Voting Rights Act and dismissed concerns of voter suppression, claiming in-person voter fraud was a problem.
On the January 29 edition of the O'Reilly Factor, O'Reilly hosted Powell to discuss "racial politics," voter suppression, and voter fraud, but failed to provide important context, including any mention of a crucial Voting Rights Act case set to be argued before the Supreme Court on February 27. In part, this case will turn on the historic civil rights law's efficacy at preventing the type of race-based voter suppression Powell described.
The problem that recent photo voter ID laws purport to address - voter fraud committed in person - is "virtually non-existent." Nevertheless, in the past two years, state Republican legislators and right-wing allies have aggressively pushed such laws that add another identification requirement for voting, even though voter identification is already required across the country. Under the Voting Rights Act, federal courts have recently confirmed that new voter ID laws in jurisdictions with a history of voter suppression have a prohibited effect on African-American and Hispanic voters.
O'Reilly refused to acknowledge any of these facts in his interview with Powell, even as Powell tried to explain them to him:
The Wall Street Journal recently joined Fox News in attempting to rewrite a radical and unprecedented federal appellate court opinion to fit their caricature of a "lawless" President Obama. But even as a WSJ editorial picks up Fox News' misrepresentation of the appellate court's sweeping decision on the constitutional legitimacy of presidential recess appointments as a narrow swipe at Obama, the Fox-fueled version is starting to unravel.
On January 29, the WSJ published an editorial that claimed "the latest disdain for the Constitution's checks and balances" was the Obama administration's response to a recent outlier opinion of the D.C. Circuit Court of Appeals. This decision broke with centuries of practice and case law by holding presidents can only make recess appointments when both a vacancy and appointment occur in-between congressional sessions. Specifically, the WSJ was offended that the National Labor Relations Board accurately pointed out the opinion was technically limited to the party that brought the case - despite its serious implications for all other similarly situated plaintiffs - and not only was it not currently in effect, it might be overturned on appeal. From the WSJ editorial, which accused the NLRB of planning to "ignore" the opinion:
So, let's see. First, President Obama bypasses the Senate's advice and consent power by making "recess" appointments while the Senate was in pro-forma session specifically to prevent recess appointments. Then when a federal court rules the recess appointments illegal, the NLRB declares that it will keep doing business as if nothing happened.
Without Mr. Obama's illegal appointments, the board would have been without a quorum and unable to decide a single case. That lawless behavior means more than 200 of the NLRB's rulings in the past year are in limbo. It's bad enough to force those 200 litigants to appeal rulings that are sure to be overturned. But the board wants to keep issuing new rulings though it now knows that a unanimous appeals court has declared them illegal, pending a Supreme Court review that may never happen.
In their rush to frame a federal appellate court opinion as a personal rebuke of President Obama, Fox News host Megyn Kelly and frequent guest Jay Sekulow misrepresented the truly radical and unprecedented nature of a decision of the U.S. Court of Appeals for the District of Columbia on presidential recess appointments. Although Kelly and Sekulow erroneously reported that the opinion only affects Obama's recess appointment of members to the National Labor Relations Board, it actually casts doubt on hundreds of presidential appointments and subsequent actions since the 1940s.
On the January 25 edition of America Live, Kelly repeatedly reported that the DC Circuit "clipped President Obama's wings" by holding the Republican-controlled Senate was actually in session when Obama made recess appointments to the National Labor Relations Board, pursuant to long-standing presidential powers. The NLRB is, of course, a frequent bogeyman for both right-wing media and corporate interests because of its perceived favorability to unions. Kelly and Sekulow, who filed an amicus brief in the case as Chief Counsel for the American Center for Law and Justice, claimed the decision's holding depended on the fact that the Senate was technically in session because of a new parliamentary trick that gavels the Senate into "pro forma session" even though no business is conducted. This is inaccurate.
Described as the crown jewel of civil rights law, the Voting Rights Act has been the target of right-wing misinformation for decades, and a parallel legal assault against its constitutionality will be argued before the Supreme Court in Shelby County v. Holder on February 27. The VRA, enacted to stem voter suppression on the basis of race in the South, contains a provision within it - Section 5 - which identifies the worst historical offenders and requires that election changes in those jurisdictions pass federal review. The current legal challenges to the VRA focus on Section 5, and are the continuation of the same discredited claims lodged against this anti-discrimination law since its inception.
As soon as President Obama's new recommendations for gun violence prevention became public, right-wing media immediately claimed the president was issuing an executive action requiring doctors to ask patients about their guns. This is false. The president's released proposals only clarify that nothing in the Affordable Care Act changes longstanding law: doctors are still free (but not required) to discuss with their patients any health hazards, including a lack of gun safety at home or elsewhere.
Among the White House proposals for gun violence reduction, the president announced that the administration will "[c]larify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes." Nowhere in his proposal did he instead require doctors to ask about guns. The Drudge Report, however, immediately splashed across its website this graphic:
Rush Limbaugh picked up on this flatly inaccurate claim that the president required doctors to ask their patients about "gun ownership." Rather than explain the president's executive action only indicated future orders, regulations, or guidance will clarify that no law - including the ACA - prohibits them from discussing gun safety with their patients, Limbaugh reported it as a new directive that "deputizes gun-snitch doctors":
RUSH: So now doctors are being ordered, instructed to talk to patients and get information from them about gun ownership, where they are in their house, who has access to them, where the ammunition is kept. Doctors are now, quote, unquote, "permitted," unquote, to do this. It makes 'em deputies, agents of the state.
RUSH: They're trying to bring a screeching halt to the effort to stop the instances of doctor-patient relationship where the doctor gains the information and passes it on. That's why the reference to Obamacare. If you go back and read Obamacare, despite what the president said in his little release today Obamacare does limit the government when it comes to gun in terms of doctors and what they can collect. They're now trying to reverse that. That's what this is about today. They're trying to stop any effort that would change what's already in place, which is doctors reporting on citizens via patient conferences.
RUSH: Yep, and people are getting upset with it. They never have liked it. This section in Obamacare, it's too much legalese to read to you. But the summary of it is it does in fact limit what data the authorities can collect from patients, what information the doctors can collect from patients and report to the authorities. That section in Obamacare was put in by the NRA. It was a sop given to the NRA. What the regime is doing today is, A, saying, "No, it's not really there; Obamacare does not prevent this," when it does, and, "It doesn't matter anyway because we're now gonna require it even more than we already have."
Limbaugh concedes that the executive action doesn't literally say that doctors are required to ask about gun safety, but rather, in his interpretation, "the executive action today is almost essentially requiring it." The president's proposal was likely a direct response to these types of wildly erroneous interpretations of the health care reform law and executive orders that were already floating around the right-wing blogosphere, before Limbaugh added his analysis. For example, on January 9, a Breitbart.com writer claimed the ACA says "the government cannot use doctors to collect 'any information relating to the lawful ownership or possession of a firearm or ammunition.'" But the relevant provisions within the health care reform law are explicitly limitations on what the secretary of Health and Human Services can do, not "the government" at large, and nowhere is there a prohibition on doctors inquiring about gun safety. In fact, such a prohibition has been held to be an unconstitutional violation of a doctor's First Amendment rights. As explained by the White House proposal released today:
Some have incorrectly claimed that language in the Affordable Care Act prohibits doctors from asking their patients about guns and gun safety. Medical groups also continue to fight against state laws attempting to ban doctors from asking these questions. The Administration will issue guidance clarifying that the Affordable Care Act does not prohibit or otherwise regulate communication between doctors and patients, including about firearms.
The administration is basing their interpretation on the text and intent of the law itself. The amendment may indeed have been a last-minute lobbying success for the NRA, but right-wing media inflate its reach in addition to their false claims about what the president actually did today. As reported by NBCNews.com, "[t]here are some who believe the health-care law outlaws doctors from asking patients about guns in their homes. But that's not true." From Kaiser Health News:
Did you know the Affordable Care Act stands up for gun rights? The "Protection of Second Amendment Gun Rights" section says the health law's wellness programs can't require participants to give information about guns in the house. It also keeps the Department of Health and Human Services from collecting data on gun use and stops insurance companies from denying coverage or raising premiums on members because of gun use.
The massacre in Newtown, Conn., renews the controversy about whether gun violence is a public health issue. Should health authorities view guns in the same category as pneumonia and car crashes? The debate has been going on for years, with epidemiologists arguing firearms can kill just as many as a bad flu season and gun-rights advocates viewing any attention from public health officials as a step toward gun confiscation -- the beginning of the end of the Second Amendment.
The ACA language, which does not prohibit doctors from inquiring about guns in the household, was included at the request of Nevada Democrat Sen. Harry Reid, the Senate majority leader and a gun rights supporter. Reid's office did not respond to a request for comment.
The language was inserted after the act cleared the Senate Finance Committee and before it was voted on by the full Senate.
The National Rifle Association did not respond to a request for comment.
In reporting that North Carolina is likely to enact a voter ID law that was vetoed by the former governor, the Associated Press failed to acknowledge the relationship between Section 5 of the Voting Rights Act and photo requirements that threaten the right to vote. Federal courts have found voter ID laws with photo requirements to be impermissible under Section 5, which bars states with a history of racial discrimination from changing election practices absent federal review.
Voter ID is a top priority for North Carolina Republicans, who gained control of both executive and legislative branches during the November state elections. Although the AP noted the opposition to this legislation, it reported it as a partisan counterargument:
[New Republican Governor] Pat McCrory and Republican legislative leaders pledged that if elected, they would undo vetoes from Democratic Gov. Beverly Perdue that GOP legislators could not override because they lacked enough votes.
At the top of the list was the 2011 bill requiring voters to show photo identification to cast ballots in person.
North Carolina Republicans have said they wanted the photo ID requirement to ensure the integrity of elections and discourage voter fraud. But Democrats and civil rights groups have accused Republicans of passing voter ID because many people who don't have photo identification - the poor and minorities - disproportionately vote Democratic. They say that fraud is extremely rare and that photo ID would erode voting rights expanded over the past 50 years.
The extreme rarity of in-person voter fraud is a fact, not just a Democratic rebuttal to the types of voter ID laws recently proposed by state Republicans across the country. Furthermore, federal judges who examined these laws under the Voting Rights Act (VRA) in the run-up to the 2012 elections issued extensive findings that these laws can impermissibly disenfranchise voters of color. Nevertheless, the AP reported these points as partisan opinion, in the same fashion it commented that "Democrats and civil rights groups" maintain photo ID laws "erode voting rights expanded over the past 50 years."
Voting rights have been protected for the past 50 years because of the VRA, historic civil rights legislation that the AP did not mention. Section 5 of the VRA, which requires that changes to election practices - such as photo voter ID laws - by states with a history of racial discrimination first be reviewed and approved by the Department of Justice or a federal court, has been indispensable. Judges have noted this key role of Section 5 in fighting Jim Crow in opinions that halted impermissibly discriminatory voter ID laws in South Carolina and Texas, a history referenced by former North Carolina Gov. Bev Perdue when she vetoed the voter ID law North Carolina Republicans are now poised to pass.
The relationship between Section 5 of the VRA and North Carolina is especially relevant because the state is partly covered by the provision, and was the source of a right-wing challenge to the law in Nix v. Holder. The Supreme Court accepted a similar challenge from Alabama, Shelby County v. Holder, and oral arguments on the fate of Section 5 are scheduled for February 27.
A full understanding of why voter ID is legally problematic, especially in North Carolina, is impossible without discussion of Section 5. Putting the North Carolina version in context is especially important for the media now that those states challenging the constitutionality of Section 5 before the Supreme Court are also challenging the findings that their election practice changes illegally discriminated on the basis of race.
As the North Carolina voter ID law proceeds legislatively, the AP must discuss this clear overlap between those who continually push flawed voter ID laws and those who seek to do away with one of the most effective civil rights laws in American history. The stakes are high nationally, and certainly for North Carolina, as State Board of Election data show that nearly one in ten voters may be disenfranchised by the proposed photo voter ID law.
On the anniversary of the 1954 nomination of Republican Earl Warren as the Chief Justice of the Supreme Court of the United States, Ed Whelan of the National Review Online characterized as "accurate" former President Eisenhower's description of the pick as a "damned-fool mistake." Whelan did not mention that the Eisenhower quote was in reference to Warren's historic opinion in Brown v. Board of Education, the Supreme Court decision that prohibited racial segregation.
Whelan, legal expert for the right-wing NRO, regularly comments on dates of legal events in a regular series called "This Day In Liberal Judicial Activism." In selecting the nomination of Warren to emphasize his agreement that this Chief Justice was a "mistake," Whelan did not describe Eisenhower's motivations for the comment. As reported by The New York Times:
"The biggest damn fool mistake I ever made," Dwight D. Eisenhower said of his appointment of Chief Justice Earl Warren, who discomfited him with the Brown v. Board of Education ruling ordering desegregation of public schools, and other liberal opinions.
In Warren's obituary, the Times described the impact of the Supreme Court under Warren, a legacy left unexplained by Whelan:
The parts that constituted the whole [of the Warren Court] were embodied in a series of decisions that had the collective effect of reinforcing popular liberties. Among these were rulings that:
Outlawed school segregation.
Enunciated the one-man, one-vote doctrine.
Made most of the Bill of Rights binding on the states.
Upheld the right to be secure against "unreasonable" searches and seizures.
Buttressed the right to counsel.
Underscored the right to a jury trial.
Barred racial discrimination in voting, in marriage laws, in the use of public parks, airports and bus terminals and in housing sales and rentals.
Extended the boundaries of free speech.
Ruled out compulsory religious exercises in public schools.
Restored freedom of foreign travel.
Knocked out the application of both the Smith and the McCarran Acts--both designed to curb "subversive" activities.
Held that Federal prisoners could sue the Government for injuries sustained in jail.
Said that wages could not be garnished without a hearing.
Liberalized residency requirements for welfare recipients.
Sustained the right to disseminate and receive birth control information.
Regular Fox News guest Jay Sekulow repeated the false accusation that President Obama will issue illegal executive orders that violate Second Amendment rights, before admitting he doesn't actually know what the administration will propose.
On the January 10 edition of America Live, host Megyn Kelly thwarted Sekulow's attempt to recycle the right-wing claim that forthcoming gun violence prevention proposals resulting from Vice President Biden's recent efforts will infringe on Second Amendment rights. When Kelly asked him how he reconciled his allegation with the fact that the first President Bush installed a ban on imports of certain types of assault weapons by executive order, Sekulow tried to explain that although there are many constitutional strategies Obama could pursue, Obama will push the illegal one. Still, Sekulow admitted he has no proof to back up this claim. From the interview:
KELLY: Jay, let me start with you on this. The research that we've looked at suggests that he's got some leeway to curtail some gun rights by executive order if he so chooses. What say you on it?
SEKULOW: I don't think so.
SEKULOW: The Second Amendment rights have been pretty clear and I think the idea that you can utilize an executive order to implement restrictions on that right not through a legislative process, by just executive fiat, I don't think that's going to work constitutionally. So I think that would be a very difficult challenge. It's different if you have legislation passed by Congress that could somehow regulate this and then the White House would simply, you know, issue regulations off them. Here there's no regulation...
KELLY: Wait, wait, let me jump in, let me jump in. That may be the difference that we're talking about because I looked back. The research suggested that when George H. W. Bush was president back in 1989, he used executive order to ban the import of assault weapons using his powers under the Gun Control Act of 1968 that stipulated that legal rifles had to be suitable for sporting purposes. So he did it that way using this 1968 gun control act law. But, you know, it begs the question, could Barack Obama do the same thing?
SEKULOW: I don't think -- that law -- we don't know what the president wants to do yet, but assuming it's going to be significant restrictions and restraints, I don't think you can use that law from 1968 to implement an executive order that would do anything other than comply with existing law. I mean, when you talk about what President George H.W. Bush did, he did use the '68 law, but we don't know what the president is proposing yet. But you listened to Vice President Biden yesterday and a kind of foreboding experience. We're talking about the Second Amendment to the United States Constitution here. Look, if it's the First Amendment the president can't simply say I don't like that provision anymore, I'm going to get an executive order, saying, you know, freedom of press, not so helpful, I'm not going to use it.
Sekulow was right when he said the President can't "implement an executive order that would do anything other than comply with existing law." It is true: laws issued pursuant to other laws can't violate the law. However, the administration is not proposing any such action.
If an executive order to address gun violence is forthcoming, it will have ample precedent, as Kelly herself noted, and Sekulow later admitted. There are existing laws on the books that Obama could enforce -- the preferred form of "gun control" for the NRA and its allies -- that would satisfy Sekulow's rule of thumb that a President shouldn't "do anything" that violates existing law. From The New York Times' description of President Bush's executive action:
In the Presidential campaign last year Mr. Bush, a hunter and longtime member of the N.R.A., opposed to any bans on assault weapons. But a public outcry after a drifter armed with an AK-47 killed five schoolchildren in Stockton, Calif., in January helped convince others in the Administration that some limits were needed.
At the urging of William J. Bennett, the director of national drug control policy, the Administration suspended imports of certain types of semiautomatic assault rifles in March. The President expanded that temporary ban as part of a broader anticrime program that he announced in April, and said he would make it permanent for imported weapons that did not have a legitimate sporting use.
Sekulow's claim that executive orders in this area don't "work constitutionally" has no basis in law. District of Columbia v. Heller, the Supreme Court decision on the Second Amendment written by conservative Justice Antonin Scalia, explicitly held that reasonable gun violence prevention strategies are constitutional.
Prior to Sekulow's confession that right-wing media is speculating, it was possible that Biden told right-wing media Obama was planning on issuing an executive order, completely untethered to current legislation, which would reinstate the ban on individual possession of handguns in Chicago homes that Heller struck down.
But as Sekulow confirmed in his America Live appearance, this hasn't happened.
A Wall Street Journal editorial scolds communities of color for protesting New York City police "stop-and-frisk" tactics, failing to mention that the police are changing this policy in response to successful challenges to its constitutionality. The WSJ also incorrectly claimed these warrantless street detentions have "a track record of saving lives and making ghettos safer" and falsely equated constitutional gun violence prevention strategies with unconstitutional search and seizure violations.
In the past decade, despite evidence of its inefficacy, the NYPD has dramatically increased stop-and-frisk, which overwhelmingly targets young men of color. Support for this police tactic is not strong, receiving the most significant opposition in the communities of color where it is most prevalent. Recent lawsuits alleging this police practice is not only impermissibly racially discriminatory, but also a systematic violation of the Fourth Amendment's prohibition on unreasonable searches and seizures, are succeeding.
Nevertheless, the WSJ argued that black and Hispanic New Yorkers should be "thankful" that the police are targeting them for pat-downs without reasonable suspicion of illegal activity. From the editorial:
Mayor Mike Bloomberg and Police Commissioner Raymond Kelly credit "stop and frisk" police tactics with the drop in homicides, and rightly so, but it's worth noting that Gotham has a slew of Democrats running to succeed Mr. Bloomberg next year and promising to repeal "stop and frisk" if they're elected. The left claims to care so deeply about the welfare of minorities and the poor, yet they oppose policies that have a track record of saving lives and making ghettos safer for the mostly law-abiding people who live in them.
By the way, many of these same liberal opponents of "stop and frisk" support stricter gun control laws. But as commentator David Frum recently asked, how can you support gun control and oppose "stop-and-frisk"?
The WSJ does not cite evidence for its claim that the "drop in homicides" is due to the past decade's stop-and-frisk policing. In fact, the evidence does not support this much-repeated right-wing talking point. In addition to the NYPD admission that "nearly nine times out of ten" the individuals detained under the policy are innocent and that police discover "guns in only about one of every 666 stops--or 0.15 percent," claims that stop-and-frisk is responsible for the drop in homicide are spurious. As explained by The New York Times:
[Proponents of stop-and-frisk] applaud the mayor for inventing "a new statistic": 5,600 "fewer murders in the past decade" because of stop-and-frisk.
The mayor's math is certainly inventive, as well as deeply ahistoric. He takes the high point for homicides, which hovered around 2,200 in the late 1980s and early 1990s. Then he points to the number of homicides each year since he took office in 2002, which has hovered near 500, and claims 5,600 lives saved.
Where to begin?
The early 1990s represented a high-water mark for urban bloodshed. Boston, Miami, Chicago, Los Angeles, Richmond, Washington: all became caldrons of violence.
The wave of homicides subsided most substantially in New York, but violence slid in most cities. Smart policing helped a lot. So did the waning of the crack epidemic, the decline of drug turf wars, and tens of thousands of citizens who refused to stay locked in their homes.
New York experienced its sharpest drop before 2002, the year Mr. Bloomberg took office. Since then, homicides have fallen about 11 percent, while stop-and-frisks increased sevenfold.
The NYPD has already begun changing its stop-and-frisk policy in recognition of the increasingly successful challenges to its constitutionality. Although brief police detentions of individuals on the street are not automatically unconstitutional, in certifying a class action lawsuit against the NYPD's specific stop-and-frisk practices, a federal court warned the NYPD last summer that its use of the practice appeared to go far beyond what was constitutionally reasonable. Furthermore, on the same day the editorial page of the WSJ published support for stop-and-frisk, a federal court struck down part of it as unconstitutional, a major news story the WSJ covered in its straight news section:
In the first judicial rebuke of the city's stop-and-frisk practice, a federal judge ordered the New York Police Department to end what the ruling described as "unlawful trespass stops" outside some private buildings in the Bronx.
In her harshly worded ruling, the judge wrote that "while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it."
Finally, the WSJ recycled journalist David Frum's question, "How can you support gun control and oppose stop-and-frisk?"
The answer is simple. First, even if stop-and-frisk was an effective gun violence prevention measure, as right-wing media erroneously claim, it does not follow that it is a necessary tool to enforce gun laws. Second, as conservative Supreme Court Justice Antonin Scalia concluded, "gun control" is constitutional. According to yesterday's federal district court ruling, NYPD's stop-and-frisk policy is not.
Fox News correspondent John Roberts ignored Sen. Ted Cruz's inaccurate claim that gun violence prevention is "unconstitutional" while guest hosting Fox News Sunday. The following morning on MSNBC's Morning Joe, host Joe Scarborough highlighted Roberts' failure to correct Cruz's extreme talking point, one that even conservative Supreme Court Justice Antonin Scalia rejected in District of Columbia v. Heller.
From the January 6 edition of Fox News Sunday (via Nexis):
ROBERTS: Gun control -- you probably heard the last segment. We're talking about 10 bills introduced in the House of Representatives regarding gun control. Joe Biden is leading a study group at the White House. You are a fierce defender of Second Amendment rights. You were in like 2010, given the NRA's Freedom Fund Award.
Is there any new gun control that you would accept?
CRUZ: The reason we are discussing this is it the tragedy in Newtown. And every parent, my wife and I, we've got two girls aged 4 and aged 2 -- every parent was horrified at what happened there. To see 20 children, six adults senselessly murdered, it takes your breath away.
But within minutes, we saw politician running out and trying to exploit this tragedy, try to push their political agenda of gun control.
I do not support their gun control agenda for two reasons. Number one, it's unconstitutional.
ROBERTS: But is there that you would accept?
CRUZ: I don't think the proposals being discussed now makes sense.
Cruz's repetition of the NRA talking point on Fox News Sunday that the "gun control agenda" is "unconstitutional" was especially notable because he is a well-credentialed attorney who clerked for former Supreme Court Justice William Rehnquist. The Supreme Court has repeatedly held that "gun control" is not unconstitutional, most recently in the landmark ruling of Heller that clarified the individual right to possess firearms. In fact, Cruz's endorsement of the NRA position is not only legally incorrect, it contradicts Justice Scalia's majority opinion:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. [United States v.] Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons.
Because Cruz, a new Republican member of the Senate Judiciary Committee, is expected to know very recent and high-profile Supreme Court precedent, Fox's Roberts should have given Cruz an opportunity to correct himself on the constitutionality of "gun control." As explained by The New York Times in reference to the reports of the gun violence prevention task force recommendations that Cruz was commenting on, "[a]lthough the N.R.A. is sure to cry "Second Amendment!," the truth is that there's not a single Second-Amendment restriction in Mr. Biden's law-enforcement approved list."
Instead, that task fell to Scarborough and fellow Morning Joe regulars, who questioned how Cruz and Fox News Sunday could botch Heller without any explanation or follow-up:
SCARBOROUGH: Let me ask you a question, Mark Halperin. You know Ted Cruz, right?
MARK HALPERIN: I do.
SCARBOROUGH: A smart, gifted guy?
HALPERIN: He's a very smart man.
SCARBOROUGH: Has he ever read the Constitution, do you know?
HALPERIN: I'm certain that he has.
SCARBOROUGH: Isn't he like a lawyer, or something like that?
HALPERIN: He is, he's an esteemed lawyer, he was Solicitor General of Texas...
SCARBOROUGH: He's a Harvard Law graduate. So you think he's probably read a Supreme Court case before?
HALPERIN: I'm certain he has.
SCARBOROUGH: You think maybe he's read Heller, the Supreme Court...
SCARBOROUGH: Seminal case on the Second Amendment, on the definition of what's constitutional and unconstitutional, you think he's read that?
SCARBOROUGH: It's hard to know, but you would think he probably would, right? Because if he had...
HALPERIN: He would know?
SCARBOROUGH: He would not say that background checks are unconstitutional. Or any of the things that have been brought up are unconstitutional. Because the Supreme Court clearly and unequivocally said that Americans have a right to keep and bear arms, and that means keeping handguns in their home. That means being able to protect their families in their home. But they gave wide latitude to the government to regulate guns in every way that people determine.
I disagree with a lot of [Sen.] Dianne Feinstein's suggestions and recommendations, but background checks, the banning of military-style assault weapons, the banning of high-capacity magazine clips, it's all constitutional under Heller. It's not even a close call.
The Wall Street Journal argued in an editorial that the National Labor Relations Board, which is charged with protecting workers' right to organize, has overstepped its authority to do unions' bidding regardless of the law--particularly in its approach to employers' social media policies. A review of the NLRB Office of the General Counsel's memos, however, demonstrates that the WSJ's characterization of the body's policies is without merit.
The January 6 editorial, titled "Another NLRB Power Grab," accused the body of becoming "a wholly-owned subsidiary of Big Labor, rather than a neutral arbiter of fair labor practice." In support of this claim, the WSJ presented blatantly false statements about the NLRB's approach to employers' social media policies:
Also insidious is the NLRB's effort to regulate how companies handle social media. In the Facebook and Twitter age, employers have an obvious interest in rules that prohibit their employees from defaming colleagues, or broadcasting confidential information. The NLRB has nonetheless decided that even reasonable restrictions impinge on concerted activity.
In fact, both the NLRB's Office of the General Counsel (OGC) and the Board itself have explicitly stated that employers may set certain limits on their employees' social media activities as long as they do not prohibit activities protected under the National Labor Relations Act. Three OGC memos provide guidance about what types of employer policies pass muster under the NLRA.
In the most recent memo, dated May 30, 2012, the OGC examined seven cases about employer social media policies and concluded that one of the employer policies was lawful in its entirety, while some provisions of the remaining six policies "are overbroad and thus unlawful under the National Labor Relations Act."
Although the OGC concluded that some aspects of a confidentiality policy were invalid, it also recognized that a policy that "admonishes employees to '[d]evelop a healthy suspicion[,]' cautions against being tricked into disclosing confidential information, and urges employees to '[b]e suspicious if asked to ignore identification procedures' " is lawful.
Nor did the OGC state that all social media posts are "concerted activity" that is protected under the NLRA. In fact, although it concluded that employees' Facebook posts can be protected if they meet the requirements applicable to communications outside of social media, it defined such posts narrowly. In a January 2012 memo, the OGC restated the NLRA requirement that protected activity must be "concerted," meaning that it seeks to involve other employees in a discussion of the terms and conditions and employment, and advised that an employee's online discussion would not be protected just because fellow employees "liked" a post.
Policies that are sufficiently clear and not limited in scope can pass muster in their entirety. The OGC advised that policies "that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful."
In short, the WSJ's characterization of the NLRB's positions on social media bears no resemblance to the guidance it has publicly shared.
As President Obama seeks to fill judicial vacancies, the media have failed to acknowledge the unprecedented obstructionism of his nominees by Republican senators, a complete reversal of their former insistence that then-President George W. Bush's judicial nominees receive up-or-down votes.
On January 3, Obama re-nominated 33 previously-stalled judicial nominees to the federal courts, in an attempt to fill the 75 vacancies in the federal judiciary - 20 more than when Obama took office. Chief Justice John Roberts, a conservative appointed by Bush, described 27 of the vacancies as presenting "judicial emergencies" in his annual report on the judiciary.
Media coverage of the re-nominations continues to fail to contrast GOP obstruction of Obama's nominees to Senate Democrats' treatment of Bush's nominees. CNN.com described the nominations as "likely to reignite the political battle over judges," particularly due to the re-nomination of NRA-opposed former Solicitor General of New York, Caitlin Halligan. But CNN.com failed to note that Bush similarly resubmitted his preferred judicial nominees in bulk following the Congressional elections of 2002. At that time, the Democratic-controlled Senate allowed an up-or-down vote and confirmed 20 judicial nominees -- including controversial picks -- in five days.
The Washington Times also ignored the unprecedented Republican treatment of Obama's nominees. Instead, the Times obscured the fact that Senate Republicans have made filibustering of all judicial picks routine, and described as commonplace the current situation wherein "60 [Senate votes] are needed to proceed to a floor vote." In fact, all-out Congressional obstructionism is a development unique to the Obama presidency, and the hypocrisy of Republicans attacking Senate Majority Leader Harry Reid's efforts to limit the use of a filibuster for judicial nominations is apparent in light of their exact reverse position after Bush's re-election.
Furthermore, both CNN.com and the Times highlight Halligan as an example of the judicial picks Republicans have denied an up-or-down vote, and uncritically repeat Sen. Mitch McConnell's accusations that Halligan -- the current General Counsel for the Manhattan District Attorney's office -- is the sort of "activist" vulnerable to the "extraordinary circumstances" test, which allows for filibusters of judicial nominees in extreme cases. But this coverage fails to note that Republicans are now engaged in unprecedented filibustering of all nominees, not just Halligan, even noncontroversial ones who have bipartisan support.
More importantly, the attacks on Halligan have been repeatedly debunked as cover for the NRA's opposition to the lawsuits Halligan was involved in prior to the passage of the Protection of Lawful Commerce in Arms Act, when she successfully pressured the gun industry to accept responsibility for business practices that funnel guns to criminals. Far from an "activist," Halligan was instead fulfilling her responsibilities as the legal representative of New York in her attempts to protect the state's citizens from illegal gun violence.
The right-wing media, however, is already dredging up this discredited NRA attack, even recycling Republican Sen. Charles Grassley's opposition to Halligan because she supported current constitutional law - such as affirmative action - with which he personally disagrees. CNSNews.com's repetition of Sen. Grassley's confused description of Halligan's support for recent Supreme Court precedent as "not a mainstream position," is an example of how the right-wing media have stretched in support of their blanket opposition to Obama's judicial nominees.
As reported by legal expert Linda Greenhouse of The New York Times, the Halligan example reveals the opposition is certainly not because of the nominees' qualifications:
[T]he N.R.A. has begun to involve itself in lower court nominations as well, where it can work its will in the shadows. It has effectively blocked President Obama's nomination of Caitlin J. Halligan to a seat on the United States Court of Appeals for the District of Columbia Circuit that has been vacant since September 2005, when John G. Roberts Jr. moved to a courthouse up the street. The president has submitted the name of the superbly qualified Ms. Halligan to the Senate three times.
When I wrote a year ago about the fate of Caitlin Halligan's appeals court nomination, I tried to puzzle out the basis for the opposition. Silly me, I thought it had something to do with Republicans not wanting a young (she had just turned 45), highly qualified judge sitting in the D.C. Circuit's famous launch position (hello, John Roberts, Ruth Bader Ginsburg, Antonin Scalia, Clarence Thomas, Warren Burger . . .)
Now I realize it's not about anything so sophisticated. It's about the N.R.A., which announced its opposition days before the cloture vote last December...In a previous job as New York State's solicitor general, Ms. Halligan, a former Supreme Court law clerk who is now general counsel to the Manhattan district attorney, had represented the state in a lawsuit against gun manufacturers. So much for her.
Media coverage of the economic consequences of sequestration -- steep federal budget cuts mandated by Congress' failure to pass deficit reduction legislation -- has largely ignored the effects of these cuts to the Department of Justice, which in recent years has brought a number of enforcement actions against financial institutions that violate fraud and fair lending laws.
However, comments from Attorney General Eric Holder in an interview with NPR Legal Affairs correspondent Nina Totenberg make clear that the potential effects of the now-delayed sequester could be especially damaging to the DOJ and could seriously hamper litigation against the financial institutions that fueled the Great Recession.
A Media Matters search of major newspapers and evening news transcripts available on Nexis indicated that the media did not explain the economic consequences of mandatory budget cuts to the Department of Justice prior to the fiscal cliff deal, which postponed sequestration for two months.
In the interview given after a speech he delivered at the John F. Kennedy Presidential Library and Museum, Holder revealed that DOJ's need to budget public safety programs in the event of sequestration would sideline successful attempts to hold banks accountable for the mortgage fraud and discrimination that partially caused the Great Recession.
Holder explained the "reality" that civil cases brought by DOJ and the recovery of "money on behalf of the American people" will "have to wait" if sequestration goes through, because public safety - such as maintenance of federal prisons - must be "prioritized." As reported by CNN.com:
U.S. Attorney General Eric Holder said Tuesday that if the Justice Department were faced with budget cuts due to sequestration, he believes that he would be able to maintain public safety by shifting resources and that the federal prison system could operate "for months" if necessary.
"I have the flexibility to move funds within the Department," Holder said.
However, nearly all civil cases would have to be put on hold, he added during an extended interview with National Public Radio reporter Nina Totenberg after giving an address at the John F. Kennedy Presidential Library in Boston.
If DOJ civil litigation is placed on the back burner, then so too is a large component of DOJ's efforts at compensating victims of the illegal mortgage practices of financial institutions before the recession. The DOJ has filed six lawsuits in response to past fraud and discrimination allegedly endemic among banks such as Wells Fargo, Citigroup, and Deutsche Bank, including a recently settled case against the Bank of America.
The DOJ alleged that one of Bank of America's acquisitions "charged black and Hispanic borrowers higher mortgage-lending fees or steered them into costly subprime loans even though their credit histories qualified them for a mortgage with more favorable terms."
DOJ has also recently accused Bank of America of engaging in a "spectacularly brazen" fraud that cost taxpayers more than $1 billion by "selling defective residential mortgage loans to Fannie Mae and Freddie Mac that later defaulted."
Now that the sequester has been postponed, national media has another chance to explain how mandatory budget cuts to DOJ, not just to the U.S. Courts, will affect access to justice for victims of big banks' financial malfeasance. As DOJ's civil litigation over illegal mortgage practices makes clear, the actions of institutions like Bank of America directly contributed to the housing bubble that fueled the Great Recession. In its coverage of the economic consequences of the sequester, the media should point out this specific harm to vulnerable homeowners.
As major media outlets report on gun violence prevention strategies in the wake of the Newtown tragedy, they have ignored a controversial law that shields the firearms industry from being held accountable.
In 2005, former President George W. Bush signed into law the Protection of Lawful Commerce in Arms Act - the "No. 1 legislative priority of the National Rifle Association" - which immunized gun makers and dealers from civil lawsuits for the crimes committed with the products they sell, a significant barrier to a comprehensive gun violence prevention strategy. Despite recent reporting on proposed efforts to prevent another tragedy like the one in Newtown, a Media Matters search of Nexis revealed major newspapers and evening television news have not explained this significant legal immunity.
Faced with an increasing number of successful lawsuits over reckless business practices that funneled guns into the hands of criminals, the 2005 immunity law was a victory for the NRA, which "lobbied lawmakers intensely" to shield gun makers and dealers from personal injury law. As described by Erwin Chemerinsky, a leading constitutional scholar and the Dean of the University of California-Irvine School of Law, by eliminating this route for victims to hold the gun industry accountable in court, the Protection of Lawful Commerce in Arms Act was a complete deviation from basic "principles of products liability":
The Protection of Lawful Commerce in Arms Act is also commonly referred to as the "Gun Protection Act." The law dismissed all current claims against gun manufacturers in both federal and state courts and pre-empted future claims. The law could not be clearer in stating its purpose: "To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm caused solely by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended." There are some narrow exceptions for which liability is allowed, such as actions against transferors of firearms who knew the firearm would be used in drug trafficking or a violent crime by a party directly harmed by that conduct.
It is outrageous that a product that exists for no purpose other than to kill has an exemption from state tort liability. Allowing tort liability would force gun manufacturers to pay some of the costs imposed by their products, increase the prices for assault weapons and maybe even cause some manufacturers to stop making them.
The NRA successfully cloaked this special treatment for the gun industry as part of "tort reform" - the right-wing's general attack on access to justice for victims of corporate wrongdoing - by claiming the Protection of Lawful Commerce in Arms Act was needed to stop "politically motivated" and "frivolous" lawsuits "intended to bankrupt the gun industry." Yet the Brady Center's Legal Action Project has successfully utilized the law's narrow exception for litigation based on gun industry criminality, proving that lawsuits against the current system that provides firearms for crimes are hardly without merit.
The Protection of Lawful Commerce in Arms Act favors an industry that, at best, turns a blind eye to business practices that place profit over victims. As Forbes admits, the result is that "gun manufacturers have won double-barreled protection from Congress against the type of lawsuits that bedevil the makers of everything from toys to tractor-trailers." Although legal experts like Andrew Cohen, posting in The Atlantic, are starting to highlight this unnecessary and unprecedented immunity for the gun industry, further attention would better inform current calls to hold gun companies accountable in court. As leaders of Congress state that "every idea should be on the table" in attempting to prevent another tragedy like the Newtown massacre, major news outlets should investigate why the gun industry remains shielded by law from the consequences of its irresponsible business practices in a way that other industries are not.
For example, the same type of gun used in the Newtown shooting was used by the 2002 Washington, D.C., snipers to shoot more than a dozen people. But if it had been in effect at the time, the Protection of Lawful Commerce in Arms Act would have blocked the lawsuit filed by the victims against the gun maker and dealer, and prevented the settlement they received. On this point, the questions of Denise Johnson, the widow of one of the snipers' victims, are still relevant:
I'm confident that the criminal justice system will work to punish the people who killed my husband. But the civil justice system must also be allowed to work. Those who share responsibility for my husband's death must also be held accountable.
I and families of other sniper victims have sued these gun sellers. I hope that by holding them accountable, we can cause others to behave more responsibly, and that future tragedies such as mine will be prevented. I understood when I filed the case that I was not guaranteed victory, but that's OK. All I wanted was my day in court. But if [the Protection of Lawful Commerce in Arms Act] is enacted, the courthouse door will be slammed in my face.
No other industry enjoys the protections that the gun industry is seeking. Gun sellers and manufacturers shouldn't be above the law. If any other product injured my husband and irresponsible sellers played a part, I would be able to bring a case in court. But because Conrad was shot with a gun, my lawsuit would not be allowed. Those who sell guns that are sought by criminals need to be more careful than sellers of other products, not less careful.
I call on Congress to protect my rights and the rights of other victims of gun violence. There's nothing frivolous about how bad gun dealers behave. And there's nothing frivolous about my case.