Health and Human Services Secretary Kathleen Sebelius is the Cabinet official responsible for implementing the Affordable Care Act. That she would testify before Congress about the problems with the law's implementation makes all the sense in the world, given that it is her responsibility. In certain corners of the conservative media, however, Sebelius' October 30 testimony before the House Energy and Commerce Committee was an act of political cowardice by President Obama, who, by sending Sebelius before Congress, was using her as a "human shield."
Here's the lede to Wall Street Journal columnist Daniel Henninger's October 31 column:
A reader remarked last week that Barack Obama is running out of human shields. With the father of ObamaCare unavailable to explain the greatest fiasco of his presidency to Congress, the American people had to settle Wednesday for his surrogate, Kathleen Sebelius.
And here's Fox News pundit Andrea Tantaros on the October 30 edition of The Five:
The Los Angeles Times recently announced it does not publish Letters to the Editor that deny man's role in climate change, but most major newspapers are not following suit. A study from Media Matters found that 14 letters that deny manmade climate change have been printed in The Wall Street Journal, USA TODAY, The Washington Post and The New York Times so far in 2013.
The Wall Street Journal criticized a recent class-action opinion but completely misrepresented its holding, all while falsely accusing a group of federal appellate judges of "ignoring Supreme Court precedents" in a series of decisions that would allow consumers to hold huge corporations liable for selling defective products.
The WSJ, hardly the first right-wing media outlet to support pro-business legal reforms that would make it nearly impossible for consumers to sue large corporations, painted the appellate courts' decision to allow the class actions to proceed as inappropriately partisan, despite the fact that a diverse group of judges agreed that the suits were appropriate. It also rather egregiously misunderstood the ruling in the Scott v. Family Dollar case, which did not, as the WSJ asserts, "grant class certification" to the plaintiffs.
From the October 24 editorial:
Elections have judicial consequences, and nowhere is that more evident than on the Fourth Circuit Court of Appeals, which last week brushed off a Supreme Court class-action ruling like a lapful of cracker crumbs. The case has damaging consequences for business and highlights a growing trend of lower-court rejection of High Court precedents.
In Scott v. Family Dollar Stores, 51 current or former managers allege that the low-cost retail chain uses "subjectivity and gender stereotyping that causes disparate impact to compensation paid to female store managers." A Fourth Circuit panel by 2 to 1 overturned a lower court ruling and granted class certification despite clear rules set down in 2011 by the Supreme Court in Wal-Mart. v. Dukes.
This latest ruling continues a troubling trend of lower appellate courts ignoring Supreme Court precedents, perhaps on the assumption that the Justices can't take every case. Think of it as a war of attrition against lover-not-a-fighter Chief Justice John Roberts.
Similar behavior was in evidence recently in the Sixth Circuit's Whirlpool v. Glazer and the Seventh Circuit's Sears v. Butler over whether to certify class actions among consumers with allegedly moldy washing machines. In Sears, Judge Richard Posner clearly disregarded the Supreme Court's certification guidelines. The High Court vacated those judgments and remanded them in light of their ruling in 2013's Comcast v. Behrend, but the lower courts simply reinstated their prior decisions. Both cases are now bidding for another High Court hearing.
The Family Dollar majority was made up of Obama appointee Barbara Keenan and Clinton recess-appointee Roger Gregory, who was later renominated by George W. Bush as an olive branch to Senate Democrats. Democratic Presidents have appointed 10 of the 15 active Fourth Circuit judges, including six by President Obama.
Consider this disdain for precedent a preview if Mr. Obama gets a new majority on the Supreme Court. Chief Justice Roberts and his colleagues need to deliver some remedial instruction in class-action law and legal hierarchy.
As an initial matter, the October 16 decision in the Family Dollar case explicitly states (in the first paragraph of the opinion) that the court had issued its ruling "[w]ithout resolving the class certification issue," and remanded it "for the district court to consider whether, based on our interpretation of Wal-Mart, the proposed amended complaint satisfies the class certification requirements of [the Federal Rules of Civil Procedure]."
Even if the WSJ had analyzed the Family Dollar case correctly, its characterization of the recent class-action cases as a "troubling trend" indicative of "disdain" for the law is odd -- especially given the fact that the judges who wrote these decisions were appointed or nominated by Democratic and Republican presidents alike.
In the week following the end of the 16-day government shutdown, major print media outlets shifted their attention to upcoming bipartisan budget negotiations. This coverage of budget priorities was far more likely to mention the need for deficit and debt reduction than economic growth and job creation, despite economists warning that growth is the more pressing concern.
In a misleading editorial about the Supreme Court's decision to hear a case on the Environmental Protection Agency's (EPA) ability to regulate greenhouse gas emissions, The Wall Street Journal accused the agency of "regulatory overreach," despite decades of legal precedent that permits such discretion.
On October 15, the justices accepted for review a narrow legal question from a broad industry-led attack on the authority of the EPA to fight climate change under the Clean Air Act (CAA). The WSJ celebrated this limited decision despite it being yet another in a long line of obstructionist lawsuits filed against the federal government by Republican-led states.
From the October 15 editorial, which applauded "[s]tate attorneys general [who] have challenged the Administration's agenda on everything from ObamaCare to the plan to get rid of the Yucca Mountain waste depository":
The Obama Administration's Environmental Protection Agency has spent the last few years stretching its legal authority, and now it will have to defend its actions before the Supreme Court. On Tuesday, the Justices agreed to review how far the agency can go in regulating greenhouse gases under the Clean Air Act.
In Utility Air Regulatory Group v. EPA, the Court consolidated six cert petitions and will consider a single legal question: Does the EPA's authority under the Clean Air Act to regulate greenhouse gas emissions from "mobile sources" like cars also apply to emissions from "stationary sources" like power plants? To put it another way: Can the EPA make up the rules as it goes along?
This story started in 2004, when environmentalists sued to force the EPA to regulate CO2, even though the Clean Air Act never defined it as a pollutant. The Justices nonetheless ruled 5-4 (Massachusetts v. EPA, 2007) that the agency could do so for mobile sources such as cars under Title II of the Act. Gentleman, start your regulatory engines.
When Congress wrote the Clean Air Act, it created numerical thresholds specifying that the government could only start regulating after a plant was shown to be putting out more than 100 tons a year of a pollutant.
By the EPA's own estimates, applying that 100-ton threshold to greenhouse gases would require some six million buildings to get environmental permits, including such grand polluters as churches and farms. Recognizing that such a rule would create "absurd results" like shuttering the entire economy, the EPA rewrote Congress's numbers and adjusted the threshold to 75,000 tons from 100 tons. EPA's clear political purpose was to escape a large political backlash to its new rules by unilaterally limiting their reach.
The EPA says that its rewrite is no big deal, and that plaintiffs should have no standing to sue since the agency was doing everyone a favor by lifting the thresholds. But regulatory agencies don't have the power to rewrite laws on their own without the authority granted by Congress.
However, the WSJ editorial fails to mention that Congress has granted the EPA authority to enforce the Clean Air Act (CAA) - including the power to promulgate rules to implement it.
The Wall Street Journal misleadingly praised the government shutdown, suggesting it could help the economy. In fact, the shutdown has already cost the economy billions and is predicted to harm economic growth even further.
A study of coverage of the recent United Nations' Intergovernmental Panel on Climate Change (IPCC) report finds that many mainstream media outlets amplified the marginal viewpoints of those who doubt the role of human activity in warming the planet, even though the report itself reflects that the climate science community is more certain than ever that humans are the major driver of climate change. The media also covered how recent temperature trends have not warmed at as fast a rate as before in nearly half of their IPCC coverage, but this trend does not undermine long-term climate change.
The Wall Street Journal attacked the Affordable Care Act's (ACA) Medicaid expansion by claiming that Medicaid beneficiaries would have better health outcomes with no insurance at all. But the Journal's analysis relies on an inaccurate reading of an Oregon health care study and ignores that Medicaid has been shown to lower rates of depression, reduce financial strain, and benefits low-income children, mothers, and veterans.
A Wall Street Journal article promoted false Republican claims which disputed the devastating effects failure to raise the debt ceiling on October 17 would have on the U.S. economy, despite recent Journal reporting which admitted default could have "cataclysmic" consequences.
In an October 9 article headlined "Obama's Default Scenario Derided," the Journal noted that according to President Obama, "if Congress doesn't raise the country's debt ceiling soon, an economic crisis with skyrocketing interest rates and a crashing stock market could follow," as the U.S. would default on its pre-existing debts -- an understanding of the manufactured impending fiscal crisis which is supported by economists and the Treasury Department.
But rather than confirm this factual assertion, the Journal instead provided a platform for Republicans who baselessly "say they don't believe" default will lead to devastating negative effects and have even "questioned what the word 'default' really means." The Journal hyped Republican claims that the White House could choose to prioritize which payments to make once the deadline hits, and claimed these misleading remarks had credence because the U.S. has never defaulted before, making the potential crisis "unchartered waters."
In reality, the Treasury Department does not have the legal authority to prioritize payments if the debt ceiling is not raised, and economists agree that congressional failure to raise the debt limit could be catastrophic, setting in motion a financial crisis in the United States and around the globe.
The "debt ceiling" was officially breached on May 17 of this year. Since that date, the Treasury has implemented "extraordinary measures" to avoid defaulting on American sovereign debt obligations by shifting funds from various accounts. The New York Times reported that these measures will be exhausted by October 17:
Economists of all political persuasions have warned that a failure to raise the debt ceiling by the Treasury's deadline of Oct. 17 could be catastrophic. The world economy's faith in the safety of Treasury debt would be shaken for years. Interest rates could shoot up, and stock prices worldwide would most likely plummet.
The Journal itself has previously reported the devastating consequences the prospect of default is already having on the worldwide economy. On October 8, the Journal reported that short-term U.S. debt prices had fallen "amid rising investor concern about the prospect of a government-debt default, sending the yield on one-month U.S. Treasury bills to its highest level since the financial crisis." The same day, the Journal reported that China had warned the U.S. of default's "global ramifications," and that banks in the United Kingdom have begun "stockpiling cash" and preparing for "cataclysmic" consequences.
Domestically, money for government employees, the military, Social Security, Medicare, food safety inspections, and more could cease or be delayed, and CNN business correspondent Alison Kosik reported that "if a default happens, there's one analyst who says that the S&P 500 could drop 45 percent."
Furthermore, the claim that the administration could choose to prioritize some payments over others in order to avoid default is false. Tony Fratto, a former Treasury Department assistant secretary and senior George W. Bush White House staffer called payment prioritization "fanciful," and Treasury Department Inspector General Eric M. Thorson reported to Congress that the Treasury had no means or capacity to prioritize certain payments over others. Slate economics blogger Matt Yglesias explained that Treasury has "no more legal authority to prioritize payments than they do to borrow extra money."
The Wall Street Journal editorial board falsely claimed that the Department of Justice is relying on outdated civil rights law in its current lawsuits against the voter suppression of Texas and North Carolina.
Baselessly claiming DOJ's efforts to block redundant and unnecessarily restrictive voter identification laws that discriminate on the basis of race are motivated by politics, the WSJ incorrectly claimed that DOJ was trying to "reverse" the Supreme Court's infamous Shelby County v. Holder decision. From the editorial:
For Eric Holder, American racial history is frozen in the 1960s. The Supreme Court ruled in June that a section of the 1965 Voting Rights Act is no longer justified due to racial progress, but the U.S. Attorney General has launched a campaign to undo the decision state-by-state. His latest target is North Carolina, which he seems to think is run from the grave by the early version of George Wallace.
The worst argument against such laws is that they must be racially motivated because there is so little evidence of voter fraud. Yet no less that former Justice Stevens said in his opinion in the Indiana case that "flagrant examples of such fraud in other parts of the country have been documented throughout this nation's history by respected historians and journalists, [and] that occasional examples have surfaced in recent years." Anyone who thinks voter fraud doesn't exist hasn't lived in Chicago or Texas, among other places.
It's telling that Mr. Holder prefers to file lawsuits rather than take up the Supreme Court's invitation to modernize the Voting Rights Act for current racial conditions. The Congressional Black Caucus has said it is working on a new formula for preclearance, but such legislative labor doesn't get the headlines that lawsuits against GOP-run states do.
The conservative wing of the Supreme Court gutted the Voting Rights Act in Shelby County when it overturned decades of precedent, ignored bipartisan congressional intent, and disregarded the text of the Fifteenth Amendment in order to dismantle the "preclearance" provisions of the VRA. These neutralized provisions - Sections 4 and 5 - required states with an engrained history of racially discriminatory voter suppression to "preclear" any subsequent election changes with DOJ or the courts before implementation.
Shelby County did not directly touch any other component of the VRA.
For example, despite the right-wing's obvious plan to drag this crown jewel of civil rights law back before the Supreme Court in the future, DOJ still has authority under the VRA to attempt to block voter suppression after legislative enactment, if no longer before. In addition to this after-the-fact enforcement powers under Section 2, DOJ also retains the ability to ask a court to once more place a jurisdiction shown to intentionally suppress the vote on the basis of race under the "preclearance" supervision of Section 3, similar but different to the process under Sections 4 and 5.
DOJ is seeking to block voter suppression in Texas and North Carolina using only those sections still intact after Shelby County. Contrary to the WSJ's claims, by litigating under Sections 2 and 3, DOJ is expressly not trying to "reverse" a decision that only affected Sections 4 and 5. It is, rather, making do with what is left of perhaps the nation's greatest civil rights achievement.
The Wall Street Journal editorial board has come out in favor of eliminating aggregate campaign donation limits in federal elections, falsely claiming that the Founders didn't intend such contributions to be closely regulated.
On October 8, the Supreme Court will hear oral arguments in McCutcheon v. FEC, a case that has been called "the next Citizen's United" because a ruling in favor of the Republican plaintiffs will allow billionaire donors to flood federal elections with even more cash. By disregarding long-established precedent, Citizens United has already made it easier for corporations to indirectly support conservative candidates and redistricting campaigns that have secured seats in Congress for Republicans. McCutcheon could do the same for individual donors contributing to the candidates directly, a possibility for institutional corruption that the Founders specifically warned against when drafting the U.S. Constitution.
But that didn't stop the WSJ from incorrectly claiming barely regulated election donations were what the Founders always had in mind. From the October 6 editorial:
The Supreme Court re-opens for business this week, and one of its first cases is a splendid opportunity to restore the First Amendment as a bulwark of free political speech. The result in McCutcheon v. FEC will likely hang on whether Chief Justice John Roberts has the courage of his constitutional convictions[...]
Alabama businessman Shaun McCutcheon and the Republican National Committee are challenging limits on the total amount of money a person can contribute to multiple candidates and political parties. In the 2011-2012 election cycle, Mr. McCutcheon donated $1,776 to each of 15 candidates as well as sums to the RNC and other political party committees. Though his donations were all below the legal limits to individual candidates and political parties, he was prevented by the aggregate limits from making the donations he wished.
Donors are currently limited to contributing $5,200 to a candidate for each election cycle ($2,600 each for the primary and general election). But they are barred from exceeding overall ceilings of $48,600 for direct contributions to candidates and $74,600 to non-candidate political committees. So though a contributor might give $1,000 to 48 candidates, further donations violate federal law, even if they are well below the $2,600 threshold per candidate.
The left is already warning [Roberts] in the media, much as they did so successfully last year in advance of his salvaging of ObamaCare. They will denounce a ruling they don't like as "activist" though it would merely restore the First Amendment's central role in protecting free political speech. ... [P]olitical participation is more heavily regulated today than are video games and pornography. That is not what the Founders intended.
The WSJ's editorial board echoes the same arguments as McCutcheon and the Republican National Committee (RNC) - that limits on campaign contributions are a form of unconstitutional censorship of political speech, a radical departure from decades-old campaign finance law. In truth, this argument represents a fundamental misunderstanding of First Amendment law and the original intent of the Founders, something that the conservative justices on the Court say guides their interpretation of the Constitution. Those who call themselves originalists should take note that the Founders never intended the First Amendment to systematically allow a small number of wealthy donors to control American politics.
The mania for false equivalence and the pox-on-both-houses reflex among media types are in full effect now that government operations have shut down and people are looking for someone to blame. It's so strong, in fact, that reporters and pundits who recognize the hopeless and irresponsible intransigence of congressional Republicans nonetheless lay an equal (or perhaps greater) measure of blame at the feet of the president for failing to wheedle and cajole people who won't be wheedled or cajoled. It makes little sense, but sacrifices must be made when trying to force objectivity or, in the case of the Wall Street Journal editorial board, frantically deflect blame from the GOP.
Just this morning, during a segment on who to blame for the government shut down, CNN's Ashleigh Banfield hotly objected to Democratic strategist Paul Begala's accusation of false equivalence, arguing that she was just as hard on Democrats as she was on Republicans -- which was precisely Begala's point:
But what of this argument that Obama could end this stand-off with the Republicans in Congress and get the government back up and running if he would just try to compromise? It's a bad argument on the merits, since Republicans aren't actually seeking a compromise: they're trying to force Obama into giving ground while they give up nothing, as they already support funding the government. But even if Obama did try to negotiate, that's no guarantee the House Republicans would respond rationally. We know this because the one of the last times Obama negotiated with Republicans during a fiscal crisis, the so-called "fiscal cliff," he offered real concessions and compromises and John Boehner and the House Republicans still refused to work with him.
Appearing on MSNBC's Morning Joe just days before the looming deadline for a federal government shutdown, Politico's Mike Allen was assessing the politics of the controversy and predicting which Beltway players would get tagged with the blame for the intentional legislative debacle. Despite the fact that Republicans were refusing to fund the government if the White House balked at the demand to essentially repeal its 2010 health care law, Allen suggested President Obama would be the real political loser.
Why Obama? Because he's more famous than the GOP congressional leaders whose actions are causing the impasse.
"A lot of people in the country don't know John Boehner. There's no one in the world who doesn't know Barack Obama," Allen explained. "So when Washington is not working, it's going off the rails in a very visible way, a way that is vivid and touches people, that's not good ultimately for the president."
That's an awfully tenuous path to blame Obama for the Republicans' proudly obstructionist strategy to stop funding the government.
Yet so it goes within portions of the Beltway press corps who are straining to include Democrats in the shutdown blame game; to make sure "both sides" are targeted for tsk-tsk scoldings about "Washington dysfunction," and that the Republicans' truly radical nature remains casually ignored. This media act is getting old. And this media act may be emboldening the Republicans' extreme behavior.
Note that unlike the government shutdowns during the Clinton administration, this one was not prompted by a budgetary disagreement between the two parties. It was provoked by the GOP's unheard of demand that in order to vote for government spending they agree is necessary, the White House had to strip away funding for its health care law. Also note that the looming showdown over the debt ceiling represents another orchestrated crisis in which the GOP is making unprecedented demands on the president in exchange for their votes for a policy they say they support. Both cases illustrate the folly of trying to blame the White House for failing to engage with Republicans, who have embraced a path of purposefully unsolvable confrontations.
What's been clear for years is that the press clings to its preferred storyline: When Republicans obstruct Obama's agenda, the president's to blame for not changing the GOP's unprecedented behavior. In other words, "both sides" are to blame for the GOP's radical actions and the epic gridlock it produces.
The media lesson for Republicans? There's very little political downside to pushing extremism if the press is going to give the party a pass.
Media figures have attempted to place blame equally on Republicans and Democrats for a possible government shutdown. Congressional experts, however, overwhelmingly blame the GOP's extreme stance, and polling shows a lack of support for House Republicans' agenda.
Let's stipulate that there isn't actually a disagreement between Republicans and Democrats over whether to fund the government beyond 11:59:59 p.m. on September 30. Both sides want government operations to continue, which is why both sides have put forward spending bills to pay for government operations. The sticking point is the Republican insistence that government funding be paired with delays or outright defunding of the Affordable Care Act ("Obamacare"), which has been the law for three years now and survived both a Supreme Court challenge and a presidential election.
The Wall Street Journal editorial board, taking measure of this toxic political dynamic, recognizes that congressional Republicans, led (in both houses) by Sen. Ted Cruz (R-TX), are pursuing a strategy that is unlikely to succeed, politically dangerous, and contrary to the will of American voters. And yet, they lay an equal measure of blame for the looming shutdown on President Obama, explaining that it's the president's fault for not negotiating with the GOP.
From the Journal's September 30 editorial, headline "An Obama-Cruz Shutdown":
We've criticized GOP Senator Ted Cruz for his strategy to make defunding ObamaCare a requirement of funding the rest of government. He and his allies know that Mr. Obama can never agree to that, and even millions of Americans who oppose ObamaCare don't agree with his shutdown ultimatum. It risks political damage for the House and Senate GOP in 2014 even as Mr. Cruz builds his email list for 2016.
Yet it takes two to tangle, and Mr. Obama is as much to blame for the partisan pileup as Mr. Cruz. This is a President who is eager to negotiate with dubiously elected Iranian mullahs but can't abide compromise with duly elected leaders of Congress. He refuses to negotiate at all over an increase in the federal debt limit, claiming this has never happened. Like so much that Mr. Obama says, he knows this is false. His own staff suggested the spending sequester during the 2011 debt debate, and Democratic Congresses have used the debt limit to extract concessions from Republican Presidents.