Media outlets are falsely alleging that President Obama's plan for free community college will hurt the middle class because it makes changes to 529 college savings plans. In fact, those who use 529 plans tend to be wealthy, and the changes will help build a broader tax credit for college savings.
Wall Street Journal editorial board member Mary Kissel is misinforming about a new fair-housing case under consideration by the Supreme Court, scaremongering that a decision to uphold half a century of civil rights precedent could force sellers, lenders, and landlords to establish policies that amount to "informal quotas."
On January 21, the Supreme Court heard oral arguments in Texas Department of Housing v. the Inclusive Communities Project, a fair-housing case that could make it more difficult for victims of discrimination to bring legal challenges against policies that reinforce decades of racial segregation, unintentionally or not. The Inclusive Communities Project argues that the way the Texas Department of Housing administered an affordable-housing plan had a discriminatory effect by entrenching racially segregated housing patterns in the Dallas area. This kind of lawsuit is known as "disparate impact" litigation, which has long been used under various civil rights statutes, including the Fair Housing Act (FHA). It does not require that intentional discrimination be demonstrated, rather that the challenged policies had an unjustified and disproportionate, negative impact on vulnerable groups protected by the FHA. Even though the Department of Housing and Urban Development (HUD) and other fair-housing advocates have successfully relied on disparate-impact litigation for almost 40 years, Texas is arguing that lawsuits under the FHA should newly be required to provide evidence of intentional racial discrimination.
On the January 21 edition of the Journal's WSJ Live video series, Kissel used a hypothetical about the government forcing a bank to make mortgage loans to attack the logic of disparate-impact analysis. Kissel said in this scenario, "Effectively, the government is saying, 'We want informal quotas. You have to lend x to Hispanics, y to blacks, and z to whites.' That doesn't sound constitutional to me." Kissel then went on to say that the Obama administration had "used this theory to shake down banks for millions of dollars. Let's hope the justices actually read the text of the law":
Right-wing media have long objected to the use of disparate impact in fair-housing litigation, calling it a "dubious legal theory." In fact, every one of the 11 federal circuit courts that have considered the question over the last 40 years have reaffirmed that the amelioration of discriminatory effects is a core component of both the intent and text of the FHA, and Congress specifically amended the statute in 1988 in recognition of the fact. Such overwhelming consensus was unsurprising -- the need to begin the slow process of integration after centuries of residential apartheid was specifically designed to be a systematic task, and not a game of Whac-A-Mole aimed at individual bad actors. It was anything but a fringe theory, but rather the product of bipartisan efforts, including those of the Republican HUD chief George Romney in the Nixon administration.
The Wall Street Journal editorial board used a misleading comparison of graduation rates to attack community colleges as "inferior" to for-profit schools. In reality, for-profit schools have significantly higher costs and employ questionable business practices that translate to lower employment and earnings for their graduates.
In 2014, right-wing media attacked immigrants and immigration reform by pushing baseless claims, relying on debunked research, and using misleading statistics about immigrants and the impact of immigration on the United States. Here is a look back at the most absurd anti-immigrant myths of 2014.
In advance of the Federal Communications Commission's February vote on net neutrality rules, media have promoted distortions of the proposed regulations, suggesting net neutrality is an unpopular, "Orwellian" takeover of the internet that may stifle innovation, hurt the economy, and raise costs for consumers. In reality, net neutrality has broad bipartisan support, promotes competition, and has been the guiding principle behind Internet innovation since its inception.
Conservative media issued catastrophic predictions and myths about the Affordable Care Act (ACA) in 2014, despite ample evidence that the health care law is working. Media Matters looks back at six claims about Obamacare that didn't pan out for the right-wing media this year.
Conservative media are praising Pennsylvania's fracking industry in order to criticize New York's recently announced ban on hydraulic fracturing, without mentioning the health impacts that it has had on Pennsylvania's drinking water and communities.
On December 17, New York became the first state in the country to officially ban the controversial process of hydraulic fracturing, or "fracking." The announcement by Governor Andrew Cuomo's administration came alongside a long-awaited health study on fracking in New York state, which found "significant public health risks" associated with the process. Cuomo officials also stated that allowing fracking would bring "far lower" economic benefits to the state "than originally forecast."
In response, conservative media have been holding up the economy in Pennsylvania -- where fracking has been in practice for decades -- to question the Cuomo administration's decision. Both the Wall Street Journal and the Daily Caller touted statistics from the American Petroleum Institute, which claimed Wednesday that Pennsylvania's fracking industry has generated $2.1 billion in state taxes that have allegedly supported new roads, bridges, and parks. And on the December 17 edition of Fox News' Happening Now, correspondent Eric Shawn reported, "[Fracking] has been allowed in Pennsylvania and helped that state's troubled economy enormously." Co-host Heather Nauert agreed, lamenting, "When you go upstate in New York you see just how badly the jobs are needed up there":
But Pennsylvania may actually be more of a testament to why New York's health concerns surrounding fracking are warranted. Oil and gas operations have damaged Pennsylvania's water supply over 200 times since 2007, according to an investigation by the Pittsburgh Post-Gazette, and a recent report from the Government Accountability Office found that the state's drinking water is at risk from poor wastewater disposal practices. One Pennsylvania town, Dimock, has been dubbed "Ground Zero" in the battle over fracking's safety by NPR. The town has seen particularly high rates of water contamination, with a methane leak causing a resident's backyard water well to explode, tossing aside a concrete slab weighing several thousand pounds in one instance.
After relentlessly promoting several right-wing legal challenges to the Affordable Care Act (ACA) for over a year, The Wall Street Journal seems to have just now realized that the cases' potential to deny affordable health care coverage to millions of Americans is a catastrophe for the GOP -- even as it continues to downplay the human costs.
On November 7, the Supreme Court announced it would hear King v. Burwell, a lawsuit challenging the legality of the tax subsidies that the IRS provides to consumers who purchase health insurance over the federal exchange. The plaintiffs in King argue that, because one section of the ACA states that subsidies are available to consumers who enrolled "through an Exchange established by the State," the federal government isn't allowed to offer credits to people who live in states that refused to set up their own insurance exchanges.
This extremely literal reading of the ACA ignores other parts of the law that indicate the exact opposite and the overall context of the bill as well as the legislative history of its passage, but conservative media have nevertheless been boosters for the challenge. The Journal has been particularly supportive of King and related cases, suggesting that it "ought to be a straightforward matter of statutory construction" to rule in favor of the challengers. The Journal has rarely, if ever, acknowledged the human cost that would come with a Supreme Court decision striking down the availability of tax subsidies -- but in a recent editorial, the Journal seems to have discovered the devastating cost of its anti-ACA advocacy, at least for Republicans:
The time to define a strategy is soon, as King v. Burwell will be heard in March with a ruling likely in June. As a matter of ordinary statutory construction, the Court should find that when the law limited subsidies to insurance exchanges established by states, that does not include the 36 states where the feds run exchanges.
But in that event one result would be an immediate refugee crisis. Of the 5.4 million consumers on federal exchanges, some 87% drew subsidies in 2014, according to a Rand Corporation analysis.
In the GOP debate about how to respond, one side would prefer to wait for the judicial rapture to arrive. ObamaCare has never been popular, they argue, and if the subsidy foundation of the law is undermined, the rest will collapse of its own weight. And because ObamaCare's mandates and taxes are conditioned on the subsidies, more people will be helped than harmed if they are withdrawn.
This group is right about ObamaCare in the abstract, but the Treasury must comply with court orders 25 days after they're issued and such an abrupt policy shift will be a mess. The 17% of U.S. GDP that is health care has spent five years reorganizing to accommodate ObamaCare's dictates, and the watch-it-burn caucus is underestimating the economic, political and media blowback.
The White House could have avoided the problem by obeying its own law and not passing out illegal subsidies, but the public may not notice the difference once the press corps discovers a cancer patient or two who can't afford her ObamaCare plan without taxpayer support. This threatens to replay the "if you like your doctor, you can keep your doctor" controversy in reverse, with Republicans accused of denying care to the sick.
Media coverage of an omnibus spending bill that rolled back key financial services regulations ignored the amount of money the financial services industry spent helping elect members of Congress in 2014. In fact, the industry lobbying to eliminate the regulation spent $436 million on federal candidates during the midterm elections.
Conservative media outlets both nationally and in California are campaigning against Gov. Jerry Brown's nominees for the state judiciary, attacking their political leanings and complaining about their "race, gender, or sexual orientation," in a baseless effort to suggest the nominees are unqualified and selected "strictly for reasons of affirmative action."
The recent round of attacks were given a national platform in a November 26 Wall Street Journal editorial, which, while questioning the lack of judicial experience of some of Brown's nominees, largely focused on whether the ideological leanings of Brown's nominees are similar to his own. The California Supreme Court was previously dominated by judges appointed under Republican governors, but Brown's picks, Journal columnist Allysia Finley complained, "have tilted the court left."
California media were more specific, and honed in on whether the nominees were from "the right racial groups," as San Francisco Chronicle editorial writer Marshall Kilduff put it. Ignoring the fact that multiple high court jurists had not previously served as judges before their appointments (such as current Supreme Court Justice Elena Kagan and former Chief Justice and California governor Earl Warren), Kilduff also criticized Brown's nominees for a lack of experience with "sleepy jurors." But as The Los Angeles Times reported, Brown has no flat rule against trial or appellate experience with respect to his nominees -- similar to his choice for the San-Francisco-based appeals court, "Brown's picks for the Los Angeles-based appeals court were all sitting judges, suggesting he considers bench experience valuable."
The criticism of Brown's attempts to diversify the bench got uglier, however, after the Journal weighed in. The Metropolitan News-Enterprise, a Los Angeles legal newspaper, recently ran a column from Roger M. Grace, flatly concluding Brown's nominees were "bereft of credentials," and were "apt to be named ... strictly for reasons of affirmative action":
Surely, race should not be, ever, a factor in choosing judges.
It simply doesn't relate to a person's capacity to serve in a judicial role.
Yet, the reality is that to Jerry Brown, being a non-white is a huge plus for a seeker of a judgeship.
And so we return to young [Lamar Baker, former US Deputy Assistant Attorney General]. He is almost certain to be appointed to the state's intermediate appellate court--and would probably be under consideration for the Supreme Court were there any more vacancies. He, like [former U.S. deputy attorney general and current California Supreme Court nominee Leondra] Kruger, is an African American.
He has all the qualities that Brown is looking for in a justice.
And what he lacks -- the know-how and wisdom that can only be derived from experience -- is of no concern to the man once known as "Governor Moonbeam."
He's not called that anymore. But the lunar influences on him are as strong as ever they were.
Also apt to be named to the appeals court, strictly for reasons of affirmative action, is Los Angeles Superior Court Judge Luis Lavin. He's openly gay. That, and his law degree from Harvard, are probably enough to cinch an appointment -- unless the governor views him as being too old (he's 55) or holds against him his judicial experience.
From what I've seen, Lavin is a result-oriented jurist, lacking in intellectual honesty. But that sort of thing would, of course, be of no interest to Brown.
The Supreme Court will soon hear King v. Burwell, a challenge to tax credits for consumers who live in states that refused to set up their own health care exchanges under the Affordable Care Act (ACA) and instead relied on the federal version. Right-wing media have repeatedly insisted that the ACA can only have been written to deny Americans affordable health insurance, but experts call this argument "political activism masquerading as statutory restraint."
A Media Matters analysis of major U.S. newspapers reporting on the alleged "war on coal" found that newspapers provided one-sided coverage of the issue and seldom mentioned the coal industry's negative environmental and health impacts or its efforts to fight regulations. Out of 223 articles published in major U.S. newspapers this year mentioning the phrase "war on coal," more than half failed to mention underlying issues that account for the coal industry's decline and the need for regulations. Further, less than 10 percent of articles mentioned harm caused by the coal industry or how the coal industry is fighting against regulations aimed at protecting miners and reducing pollution.
The Wall Street Journal is attacking the equal employment provision of the Pregnancy Discrimination Act of 1978, claiming that this historic civil rights law's protection is unnecessary since "market forces" will ultimately reduce such workplace discrimination on the basis of sex.
On December 3, the Supreme Court heard oral arguments in Young v. UPS, a pregnancy discrimination case where former UPS driver Peggy Young alleges that her employer failed to treat her equally during her pregnancy. Even though UPS had previously accommodated other drivers who were unable to perform the specific duties required for their jobs, the company refused to reassign Young after her doctor told her she should avoid lifting more than 20 pounds. Because of this unequal treatment, Young is arguing that UPS violated the Pregnancy Discrimination Act, whose statutory text clearly guarantees pregnant workers the right to be "treated the same for all employment-related purposes" as other workers "similar in their ability or inability to work."
The Journal isn't convinced that Young has been discriminated against, however, or if she was, whether she deserved the protection of civil rights law. In a December 2 editorial, the Journal admitted that UPS had "acted like dunderheads" when they refused to accommodate Young's pregnancy and argued that "[s]ympathetic plaintiffs make good headlines, but they often make bad law." The Journal rejected Young's sex discrimination claim, suggesting that UPS's "pregnancy-neutral policies" were sufficient and that Young was asking for "a special accommodation" that her employer shouldn't have to provide.
The editorial went on to criticize Young's decision to sue, suggesting that she should have skipped the lawsuit and let "market forces" correct UPS' "dumb corporate behavior":
Typically, discrimination claims are brought either by showing disparate treatment of an individual or disparate impact on a group based on statistical evidence. Ms. Young took neither path. Her argument is that UPS is liable because it failed to extend a special accommodation beyond the neutral policies that otherwise cover workplace disability.
The effect would expand the boundaries of discrimination law and ramp up penalties for businesses. If Ms. Young's theory succeeds, Title VII would have a third category of discrimination for which employers could be accused of discrimination even if their policies were neutral.
In the real world, most employers aren't in the habit of picking fights with their pregnant employees to make their lives miserable. UPS had accommodated Ms. Young during previous pregnancy-related requests, including rounds of in vitro fertilization. We agree with Ms. Young that UPS managers acted like dunderheads when they sent a longtime employee on unpaid leave, but not being nice enough is not the same as discrimination under the law.
The answer to dumb corporate behavior is market forces, not more legislating through regulation or the courts. UPS has since changed its policy and other companies have been put on notice. We hope the Justices will resist creating a long-term problem to fix a temporary condition.
The Wall Street Journal is misrepresenting the legal justification for President Obama's executive actions on immigration from the Justice Department's Office of Legal Counsel (OLC) -- even falsely claiming that the OLC's opinion does not quote "specific statutory language."
On November 20, Obama announced that he would take executive action on immigration by prioritizing deportations of dangerous undocumented immigrants over the undocumented parents of U.S. citizens or lawful permanent residents who pass a criminal background check and register for temporary administrative relief. Right-wing media were quick to accuse Obama of lawlessness for this deferred action on deportations and to declare his order "unconstitutional," despite the fact that the overwhelming majority of legal experts agree that the president has the authority to exercise this sort of prosecutorial discretion in service of family unification.
The Wall Street Journal was no exception. Before the president issued his executive order, the Journal claimed in a November 16 editorial that the president didn't have the authority to act on immigration because his administration had not yet received a "written legal justification" from the OLC. According to the editorial, the "President should always seek legal justification for controversial actions to ensure that he is on solid constitutional ground" by asking for the OLC's guidance. The Journal ultimately concluded that "[i]t's possible" the Obama administration hadn't "sought an immigration opinion because they suspect there's little chance that even a pliant Office of Legal Counsel could find a legal justification" -- apparently unaware that Obama had already received legal advice from the OLC, Attorney General Eric Holder, and immigration experts before the Journal published its editorial.
As requested, the OLC published its official opinion on Obama's immigration proposal prior to his announcement on November 20. The opinion determined that the president had the authority to prioritize and defer some deportations over others -- but that apparently wasn't enough to appease the Journal. In a November 24 editorial, the Journal criticized the OLC's opinion: "Now that we've studied the legal memo his government used to support his order, his abuse of power looks even worse." But the editorial incorrectly claimed the opinion allowed the president to "rewrite" the law by "exempting whole categories of people and extending federal benefits that they aren't entitled to by statute." Worse, the Journal falsely claimed the memo omitted information that it actually included. From the November 24 editorial:
The problem, as the Justice Department's Office of Legal Counsel (OLC) concedes in the 33-page document, is that "the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite laws to match its policy preferences" or apply "set formulas or bright-line rules." Yet Mr. Obama is making precisely such a rewrite, by exempting whole categories of people and extending federal benefits that they aren't entitled to by statute.
By recognizing that there is no categorical exemption, the OLC is implicitly admitting that Mr. Obama is stretching prosecutorial discretion beyond legal norms.
These are the kind of errors that normally scrupulous lawyers make under deadlines or political pressure. The OLC memo reveals that the White House did not submit formal legal questions until Wednesday, Nov. 19, and the OLC drafted the opinion the same day. The details of the new program weren't complete and submitted to the Justice Department until Monday. The OLC published the memo on Thursday, Nov. 20.
We wouldn't be surprised if some West Wing minion read our editorial [from November 16] "The Missing Immigration Memo," panicked, and rushed one out. Mr. Obama's political calculation --in keeping with his lawlessness on health care, drug policy and the rest -- seems to be that he'll dispense with laws or parts of laws that displease him and dare Congress to challenge him. Republicans can and should take the dare.
The Wall Street Journal is misleading about President Obama's proposed executive action on immigration by suggesting he does not have enough legal authority to support the move.
As The New York Times recently reported, Obama is expected to announce as soon as this week an executive order aimed at improving the nation's immigration system. Although specific details about the order have yet to be disclosed, it is expected in part to build upon the Deferred Action for Childhood Arrivals (DACA) program, which has deferred deportation proceedings for some categories of immigrants. There is plenty of legal precedent and justifications for such a move, and even right-wing media figures like Fox News hosts Bill O'Reilly and Megyn Kelly have admitted that the president has the authority to take action on immigration in this way through the exercise of prosecutorial discretion.
But in a November 16 editorial, the Journal questioned whether Obama had the legal authority to issue his executive order because his administration hadn't yet received "written legal justification" from the Department of Justice's Office of Legal Counsel. The editorial also misrepresented how prosecutorial discretion actually works and ignored the use of similar executive orders on immigration by Republican presidents in the past.
From the editorial:
If the White House press corps wants to keep government honest, here's a question to ask as President Obama prepares to legalize millions of undocumented immigrants by executive order: Has he sought, and does he have, any written legal justification from the Attorney General and the Justice Department's Office of Legal Counsel (OLC) for his actions?
This would be standard operating procedure in any normal Presidency. Attorney General Eric Holder is the executive branch's chief legal officer, and Administrations of both parties typically ask OLC for advice on the parameters of presidential legal authority.
Yet as far as we have seen, Mr. Obama sought no such legal justification in 2012 when he legalized hundreds of thousands of immigrants who were brought to the U.S. illegally as children. The only document we've found in justification is a letter from the Secretary of Homeland Security at the time, Janet Napolitano, to law enforcement agencies citing "the exercise of our prosecutorial discretion." Judging by recent White House leaks, that same flimsy argument will be the basis for legalizing millions more adults.
It's possible Messrs. Obama and Holder haven't sought an immigration opinion because they suspect there's little chance that even a pliant Office of Legal Counsel could find a legal justification. Prosecutorial discretion is a vital legal concept, but it is supposed to be exercised in individual cases, not to justify a refusal to follow the law against entire classes of people.