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.
Despite dedicating numerous segments to comments made by MIT economist Jonathan Gruber about tax credits established under the Affordable Care Act (ACA) that appear to support a right-wing challenge to their legality, Fox News' programming on weeknights has ignored remarks made by Gov. Scott Walker (R-WI) that undermine the legal theory behind this upcoming Supreme Court case.
In March, the Supreme Court will hear oral arguments in King v. Burwell, the radical attempt to dismantle the ACA based on an extremely literal reading of the law. The challengers in King, and several other identical lawsuits, argue that the IRS is prohibited from providing essential subsidies to insurance consumers who live in states that refused to set up their own health care exchange websites, because the law says that subsidies are unavailable for those who purchased insurance through the default federal exchange. If this interpretation is correct, millions of Americans will be unable to afford their insurance premiums -- a result that seems at odds with a bill with the word "affordable" in its title.
Nevertheless, the legal arguments in King have been hyped regularly by Fox News and right-wing media, especially after a video of Gruber came to light in which he seemed to agree with the King challengers that subsidies were not available to consumers in states who used the federal exchange. According to a search of the Nexis database, Fox News' weeknight programming since November 1 has frequently mentioned Gruber in connection to the King case, airing 25 segments that mentioned Gruber's comments in conjunction with the ACA lawsuit. Many of those segments featured a Fox host, contributor, or guest suggesting that Gruber's remarks were so significant that they would influence the outcome in King. Most notably, host Bill O'Reilly repeatedly claimed that the justices would be swayed by Gruber, stating on his November 18 show, "Believe me, the Supreme Court is taking notes."
Meanwhile, those same shows have ignored a pair of videos that show Walker apparently undermining the legal theory behind King.
This January marks the fifth anniversary of Citizens United v. FEC, the 2010 Supreme Court case that expanded the idea of "corporate personhood" by ruling that the First Amendment protects a corporation's right to make unlimited expenditures in support of political candidates as a form of speech. Network news coverage of its legal impact, however, has largely ignored how the Supreme Court continues to aggressively expand the decision.
This expansion of corporate rights has wide-ranging consequences, even outside of the context of campaign finance deregulation. The court's decision in Burwell v. Hobby Lobby, for example, seemed to embrace the idea that corporations are capable of morally objecting to contraception coverage, co-opting yet another constitutional right -- that of religion -- that had previously been reserved for people, not businesses.
In terms of election law, the conservative justices further dismantled campaign finance restrictions in 2014's McCutcheon v. FEC, which struck down aggregate campaign donation limits and allowed wealthy donors to contribute money to a virtually unlimited number of candidates and political parties. The court will hear yet another campaign finance case on January 20 called Williams-Yulee v. the Florida Bar, which could strike down a Florida rule that prohibits judicial candidates from directly soliciting money from donors -- a rule that was put in place in response to a serious corruption scandal that resulted in the resignations of four Florida Supreme Court justices.
Yet despite the cascade of decisions from conservative justices intent on dismantling campaign finance regulations and rewriting corporate rights -- and the majority of Americans who support a constitutional amendment that would overturn Citizens United -- the media have largely underreported this story.
Here are four graphics that illustrate this failure.
Fox host Eric Bolling called on the New York Police Department to engage in more racial profiling and stop-and-frisk after the terrorist attack on the offices of a satirical French magazine, but his characterization of the legality and constitutionality of race-based policing misrepresents these practices.
On January 7, masked gunmen attacked the headquarters of Charlie Hebdo, a French weekly that had previously run caricatures of the Prophet Muhammad. Right-wing media were quick to politicize the attack and describe it as an argument for the practice of race-based police tactics in America, even those prohibited by federal law or the U.S. Constitution. On the January 7 edition of Fox & Friends, co-host Elisabeth Hasselbeck suggested that NYPD officers should be able to target certain communities without fear of being painted with "a racist brush." Hasselbeck also suggested that New York Mayor Bill de Blasio had demoralized the NYPD and threatened security by calling on the police to stop improper racial profiling.
As right-wing media have done repeatedly in the past, Hasselbeck failed to recognize that police practices must pass a threshold of constitutionality regardless of their alleged efficacy at imposing "order."
This narrative continued on the January 7 broadcast of Outnumbered, where Fox host Eric Bolling joined the panel to claim that people in New York should feel "anger" toward de Blasio for his efforts to eliminate unconstitutional stop-and-frisk policies and curb racial profiling. Bolling argued that police had used racial profiling "so effectively for so long" to target people who are "the type of person who's done it in the past." Bolling went on to wonder, "How did profil[ing] become a) unethical, b) illegal? It's throughout history been the most effective law enforcement tool." Outnumbered co-host Andrea Tantaros agreed with Bolling that "leftist mayors like de Blasio" and the Obama administration had "taken those tools away at a time when we need them the most," and claimed that "targeting mosques" was "crucial" towards uncovering terrorist activity:
Major network newscasts have given almost no coverage to an upcoming Supreme Court case that will decide whether judicial candidates can personally solicit campaign donations -- despite the risk of corruption.
On January 20, the court is scheduled to hear oral arguments in Williams-Yulee v. Florida Bar, in which a candidate for an elected county judge position -- Lanell Williams-Yulee -- sent out a fundraising letter that she signed herself. As in the majority of states, judicial candidates in Florida are prohibited from sending out this kind of direct solicitation to prevent the appearance or risk of corruption. Instead, they are required to set up separate campaign committees to send out fundraising requests on their behalf. The Florida Bar filed a complaint against Williams-Yulee, who was ultimately reprimanded and fined. Williams-Yulee is now arguing that the ethical rule restricting her ability to ask for donations is an unconstitutional restriction of her free speech, an extension of the argument validated by the conservative justices in Citizens United and its progeny.
This case gives the conservative justices of the Supreme Court yet another chance to roll back restrictions on campaign finance -- which they have steadily gutted since 2010's Citizens United decision allowing millions of dollars to flood the federal election system. Most recently, the court struck down aggregate campaign limits in 2014's McCutcheon v. FEC, making it easier for wealthy donors to contribute to a virtually unlimited number of candidates and political parties.
Yet a Media Matters analysis of Sunday morning talk shows (ABC's This Week, CBS' Face the Nation, and NBC's Meet the Press) as well as nightly news programs (ABC's World News Tonight, the CBS Evening News, NBC's Nightly News, and PBS NewsHour) reveals just one segment that covered the Williams-Yulee case since it was appealed to the Supreme Court -- the October 2 edition of PBS NewsHour.
Many of the same right-wing media myths about legal issues that dominated coverage in 2014 will continue to make headlines in the new year. Here are some of the worst that will make a comeback in 2015.
Rarer than being struck and killed by lightning and far less common than UFO sightings, 31 out of one billion votes cast since 2000 was the number of credible allegations of in-person voter fraud that law professor Justin Levitt found nationwide in a 2014 report. But in the face of these findings and a constant parade of similar evidence, this phantom menace nevertheless was the bogeyman that right-wing media incessantly invoked in 2014 to justify their increasingly hostile assault on voting rights.
From strict voter ID to voter purges to Jim Crow-era "literacy tests," right-wing media championed unnecessary and redundant voting restrictions that have a disproportionately disenfranchising effect on Democratic voters of color. Despite criticism from leading conservative figures and smackdowns from federal and state courts, nothing seemed to dissuade right-wing media from twisting the truth and deceiving their audience to support a so-called solution to a virtually non-existent problem.
With a fix to the damage the conservative justices caused to the Voting Rights Act of 1965 still blocked in Congress, the misinformation is likely to only get worse, as legal challenges to the new wave of Republican-sponsored voting restrictions race to the Supreme Court and the 2016 presidential election cycle kicks into gear.
Media figures are criticizing President Obama for the current diplomatic re-engagement with Cuba by falsely suggesting that taking executive action to ease some travel and trade restrictions is legally questionable. In reality, the embargo is a result of decades of executive actions under both Republican and Democratic administrations, and Congress has explicitly reaffirmed executive discretion of the type the president is taking to modify U.S. relations with Cuba.
Fox News host Heather Nauert is calling a bizarre federal court opinion that found President Obama's executive action on immigration unconstitutional a "pretty simple" decision, despite the fact that even conservative legal experts have called it a stretch.
On the December 17 edition of Happening Now, Nauert turned to legal experts Robert Bianchi and Brian Claypool to discuss Judge Arthur Schwab's lower court ruling that, surprisingly, evaluated the constitutionality of the president's recent decision to exercise prosecutorial discretion and defer deportation for certain undocumented immigrants. Both Bianchi and Claypool explained that the judge's ruling had "no legal significance" and "doesn't make sense," but Nauert disagreed. Other conservative legal experts are also questioning how the judge came to this conclusion on an unrelated matter of civil immigration law, given the fact that neither party in this criminal case contested the constitutionality of Obama's executive order.
Although Nauert admitted that she is "not a lawyer," she nevertheless argued that the judge's decision "seems pretty simple":
But the ruling from Judge Schwab, who has seen his fair share of controversy with respect to his legal judgment since being appointed to the bench, wasn't quite as "simple" as Nauert insisted.
Legal experts across the political spectrum agree that the president has broad authority to exercise prosecutorial discretion when it comes to deportation proceedings, which the Supreme Court affirmed as recently as 2012. Despite right-wing media's unwillingness to accept the idea that Obama's order is lawful, immigration experts have noted that the president is not only acting "within the legal authority of the executive branch of the government of the United States" but is also authorized by federal statute to provide temporary administrative relief of this type, as presidents of both parties have done for decades.
Moreover, according to Jonathan Adler, a law professor and contributor for The Washington Post's libertarian Volokh Conspiracy blog, Judge Schwab overstepped his own authority in ruling on the constitutionality of Obama's executive order. As Adler explained, "it is quite unusual for a district court to reach this sort of constitutional issue in this sort of case":
Indeed, Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President's actions. Based upon the procedural history recounted in the opinion, it appears the court requested briefing on the applicability of the new immigration policies on its own order. That is, the issue was not initially raised by the defendant in his own defense. As a result of the court's decision, however, the defendant now has the option of withdrawing his guilty plea and potentially seeking deferral of his deportation under the new policy.
On the merits, I understand the concerns that motivate Judge Schwab's reasoning, but I am not persuaded. First, it is important to note that the executive branch has exercised a substantial degree of discretion in implementing and enforcing immigration law for decades. Work permits have been issued in conjunction with deferred action for at least forty years. President Obama's actions are broader in scope, but not clearly different in kind from what his predecessors have done and to which Congress has acquiesced.
Adler's conservative colleagues at the Volokh Conspiracy agreed with this assessment, with law professors Ilya Somin and Orin Kerr calling it "poorly reasoned" with "serious flaws," and "exceedingly strange," respectively. Somin elaborated on how radical the opinion is, noting that "[i]f the Supreme Court were to adopt Judge Schwab's reasoning, federal law enforcement agencies would be barred from issuing general systematic guidelines about how their officials should exercise prosecutorial discretion. The exercise of discretion would then become arbitrary and capricious. Alternatively, perhaps they could still follow systematic policies, so long as those policies were not formally declared and announced to the public, as the president's order was. Neither possibility is particularly attractive, and neither is required by the Constitution."
On the other hand, Judge Schwab does have the support of Fox News host Sean Hannity, who crowed that the opinion "could've been written by me."
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.
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.