Washington Post syndicated columnist George Will dedicated his most recent column to Gov. Bruce Rauner (R-IL), praising the governor's plans to go after public-sector unions, but got some basic facts wrong in the process.
Rauner has quickly become a favorite among right-wing media figures, both during his gubernatorial campaign and since his election in November. The Wall Street Journal and National Review have also lauded Rauner for his February 9 executive order blocking public-sector unions from collecting "fair share" fees from state employees they represent. Although state employees are not required to join, their union is nevertheless required to represent every state employee -- including nonmembers -- during contract negotiations. Without fair-share fees, nonmembers would get all the benefits of unionization without having to pay for it. Rauner's order would effectively institute "right-to-work" rules for state workers without the headache of getting approval from the Democratic majority in the state legislature first.
In his February 25 column, Will called Rauner's election "this century's most intriguing political experiment" and endorsed the governor's plan "to change Illinois's political culture of one-party rule by entrenched politicians subservient to public-sector unions." Will went on to support Rauner's executive order on union dues, but completely bungled basic facts about the order and the ongoing legal challenges surrounding it:
By executive order, Rauner has stopped the government from collecting "fair share" fees for unions from state employees who reject joining a union. This, he says, violates First Amendment principles by compelling people to subsidize speech with which they disagree. The unions might regret challenging this in federal court: If the case reaches the Supreme Court and it overturns the 1977 decision that upheld "fair shares," this would end the practice nationwide.
Rauner hopes to ban, as some states do, public employees unions from making political contributions, whereby they elect the employers with whom they negotiate their compensation. Rauner notes that an owner of a small firm that does business with Illinois's government is forbidden to make political contributions. Rauner also hopes to enable counties and local jurisdictions to adopt right-to-work laws, thereby attracting businesses that will locate only where there are such laws.
Fox News is reporting on an unsubstantiated rumor that the Obama administration has a "secret plan B" to deal with the fallout of an upcoming Supreme Court case that could invalidate tax credits for millions of Americans. But administration officials have repeatedly denied that such a plan exists -- and there is little the administration could do to restore the credits if the court strikes them down.
On March 4, the Supreme Court will hear King v. Burwell, a case that could block the availability of health care subsidies for consumers who purchased insurance over the federal exchange, which operates as the sole health insurance marketplace in the 37 states that don't operate their own. The lawsuit is based on a right-wing misinterpretation of the Affordable Care Act (ACA) that claims that the law allows the IRS to provide tax credits only to those who bought insurance over "Exchanges established by the State," and not the federal government. In addition to the congressional authors of the ACA, the vast majority of health and legal experts agree that this strained reading of the law is not only incorrect, but contrary to the way the Supreme Court generally interprets statutes -- as a whole, and in context.
Despite the lawsuit's clear flaws, right-wing media have acted as a booster for its potential to gut the ACA -- and only recently figured out that without the subsidies, millions of Americans would be faced with ruinous health care costs. As The New York Times explained, "if the court decides to limit federal tax credits, the result could essentially be the creation of two American health care systems. The haves -- in mostly Democratic states -- may not be impacted, while the have-nots -- in 37 mostly red states -- could face spiraling costs."
But now Republicans are attempting to shift the blame to the Obama administration by claiming that the administration actually does have a super-secret contingency plan, and multiple statements to the contrary are an effort "to influence the court ahead of the March 4 arguments," according to The Hill.
Even though the administration has said that there is no such plan -- secret or otherwise -- Fox News was happy to pass along this unsubstantiated rumor on the February 26 edition of America's Newsroom. In a report about a congressional hearing on the ACA, Fox's Doug McKelway stated that Health and Human Services Secretary Sylvia Burwell would be facing questions about the administration's "contingency plans" if the tax credits are struck down. McKelway went on to report that "there are rumors circulating that senior HHS officials do have a secret plan B should the Supreme Court rule against Obamacare":
Fox News Host Sean Hannity is criticizing singer John Legend's Oscars speech, which invoked the civil rights movement and the ongoing fight for racial and social justice. In response to Legend's completely accurate statement that the Voting Rights Act of 1965 is under attack today, Hannity disagreed and appeared to argue that the seminal civil rights law was irrelevant to strict voter ID laws.
On February 22, Legend and co-writer Common won the Academy Award for Best Original Song for "Glory," from the film Selma, a historical drama about Dr. Martin Luther King, Jr.'s fight for equal voting rights. In his acceptance speech, Legend noted that the civil rights struggle represented in the movie continues "right now": "We wrote this song for a film that was based on events that were 50 years ago, but we say that Selma is now, because the struggle for justice is right now. We know that the Voting Rights Act that they fought for 50 years ago is being compromised right now, in this country, today."
On the February 23 edition of his show, Hannity complained that Legend "decided to make all things political." Even though Legend didn't explicitly bring up voter ID laws in his speech, Hannity went on to suggest that it was inappropriate for Legend to "equate the Voting Rights Act with showing an ID to get to vote so we can keep honesty and integrity in our elections ... I like John Legend as a musician, but he doesn't know anything about politics":
The Wall Street Journal is celebrating a ruling from a lower-court judge who has temporarily blocked President Obama's exercise of prosecutorial discretion over undocumented immigrants by repeating a litany of right wing-media myths, some of which were repeated in the legal decision itself.
On February 17, federal district court Judge Andrew Hanen issued a preliminary injunction that will block the Department of Homeland Security's implementation of the president's recent executive actions on immigration in the face of GOP opposition to immigration reform. These actions, which will defer deportations for some undocumented immigrants and were scheduled to open the application process today, have long been criticized by right-wing media as "unconstitutional," despite the fact that there is plenty of legal and historical precedent for the order.
Hanen's ruling -- which not only goes against other recent lower-court rulings, but also Supreme Court precedent -- found a receptive audience at The Wall Street Journal. The Journal has been particularly critical of Obama's immigration actions, erroneously suggesting the administration had not sought a legal justification for his order before issuing it and denouncing Obama for acting "on his own whim because he's tired of working with Congress." In a February 17 editorial, the Journal commended Hanen, calling his decision "a vindication of the 26 states that brought the challenge and, more significantly, for the rule of law":
Last November the Department of Homeland Security published memos instructing immigration enforcers to disregard federal laws that require deportation of the undocumented and place strict limits on who may work in the U.S. The White House and DHS claim this "deferred action" is nothing more than routine prosecutorial discretion, as if the department is merely conceding that its officers cannot hunt down and deport the millions of illegals in the country.
Judge Hanen dismantles that fiction. As he points out, the DHS memos amount to "a massive change in immigration practice" that reorders "the nation's entire immigration scheme." Instead of the historical norm of forbearance in individual cases, the memos devote 150 pages to detailing a blanket policy for whole classes of immigrants -- meaning that discretion is "virtually extinguished," as Judge Hanen writes.
The memos also actively bestow benefits that Congress never granted, such as the right to work, obtain Social Security numbers, and travel to and from the U.S.
The editorial is a rehash of myths about the executive action. For example, it is true that Congress never granted undocumented immigrants "the right to work," but neither did Obama's executive order. Undocumented immigrants who qualify for deferred action will become eligible for work authorization permits, not because of Obama's order, but because of a federal law that was passed in 1986 under Ronald Reagan.
Right-wing media are celebrating Gov. Bruce Rauner's (R-IL) executive order blocking public-sector unions from collecting "fair share" fees from the state employees they represent, even though there is no precedent for such a move. National Review and The Wall Street Journal are praising Rauner for "thinking creatively" by effectively turning Illinois into a "right-to-work" state without legislative approval, even though those same outlets have criticized President Obama for issuing lawful executive orders without Republican input.
Rauner's order specifically targets "fair share" dues that nonmembers in unionized workplaces pay to cover the cost of union representation for their collective bargaining agreements. Illinois law already prohibits fair share fees (as opposed to full membership dues) from being used to fund union political activities, but Rauner nevertheless issued his executive order and wrongly claimed that "an employee who is forced to pay unfair share dues is being forced to fund political activity with which they disagree." A number of states have passed "right-to-work" laws that target these kinds of dues with the express purpose of weakening the bargaining power of unions. But Rauner saved himself some time by ignoring decades of Supreme Court labor-law precedent and imposing the "right-to-work" standard on state employees without running it past the legislature first.
Right-wing media are not particularly concerned with Rauner's unilateral and legally questionable antics. Rauner's lawyers, however, apparently realize the unusual nature of this executive action. On the governor's behalf, they have defensively filed a lawsuit asking a district court to preemptively declare his order legal on the radical assumption that all union activity -- even that related to collective bargaining -- is inherently political.
In a February 11 post, National Review writer Patrick Brennan applauded Rauner's "daring" and legal manuevering, celebrating that "Rauner's Illinois is in limbo -- and, duly elected, he deserves credit for putting them there." The Journal also praised Rauner in a February 10 editorial for "thinking creatively" since the "Democrats who have a supermajority in the state legislature won't make Illinois a right-to-work state."
This is an interesting about-face on executive orders from these outlets, which have attacked Obama's executive action on immigration in the face of an obstructionist GOP-controlled House as an "abuse of power" and "executive overreach" -- despite there being plenty of legal and historical precedent to support Obama's orders. In a November 16 editorial, the Journal argued that it would "support more liberal immigration but not Mr. Obama's means of doing it on his own whim because he's tired of working with Congress." Similarly, in a November 6 editorial, National Review complained that for Obama to "act on immigration without engaging the country's new congressional majority would be a defiance of the legislative branch, and of the American electorate."
But Rauner's order gets a pass from National Review now, because it is enough that "after a deep legal review, he thinks the fair-share fees are unconstitutional forced expression."
Apparently Rauner's deep legal review involves rewriting the basics of labor law. As the Illinois Economic Policy Institute explained, Rauner's claim that "state workers are forced to pay union dues for political purposes" is "false":
Illinois law does not prohibit labor organizations with state collective bargaining agreements from contributing to elected officials, but it also does not mandate that workers must pay for political activities that are endorsed by their representative union. The Illinois Public Labor Relations Act requires all employees covered by a collective bargaining agreement to pay their "fair share" of the cost of collective bargaining and contract administration. Fair share dues "shall not include any fees for contributions related to the election or support of any candidate for political office" but an employee can make "voluntary political contributions in conjunction with his or her fair share payment" [emphasis added]. Since the 1988 Communications Workers of America v. Beck case in the U.S. Supreme Court, unions are authorized to collect from non-members only fees and dues necessary to perform collective bargaining operations, and workers can object to paying a portion of their dues toward political activities.
As conservative Justice Antonin Scalia explained in a 1991 labor law case, nonmembers who don't pay dues "are free riders whom the law requires the union to carry -- indeed, requires the union to go out of its way to benefit, even at the expense of its other interests. In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others." Without compulsory fair share dues for the collective bargaining agreement from which both non-members and members benefit, unions face a serious "free rider" problem and threat to their financial viability.
Which, for the National Review and the Journal, is clearly the point.
There's no question that the current makeup of the Supreme Court is less sympathetic to the labor movement than it has been in the past. In 2014, the conservative majority ruled that home care workers in Illinois (who are paid with state Medicaid funds but are not full-fledged public employees) cannot be compelled to pay dues to a union they don't want to join, but ultimately declined to strike down a 1977 case that allows public-sector unions to collect "fair share" dues from nonmembers. Even though Justice Samuel Alito's majority opinion questioned the "foundations" of that 1977 ruling -- basically inviting a challenge like Rauner's -- the case is still good law.
In light of this precedent, some might call Rauner's actions an appeal to the "judicial activism" they frequently condemn. The WSJ, on the other hand, is calling this "thinking creatively."
The Supreme Court will soon hear King v. Burwell, a right-wing challenge to the Affordable Care Act that could strike down the subsidies that Americans rely on to purchase health insurance. Here is a media guide to some of the health care and legal experts -- including conservative industry groups, members of Congress, and state officials -- who are asking the Court to reject the challengers' reading of the ACA, which flouts common sense and rules of statutory interpretation.
An AL.com columnist incorrectly described the legal challenges to prohibitions on same-sex marriage and declared he is "thankful" for Alabama Supreme Court Chief Justice Roy Moore, who recently announced he was opposed to recent federal marriage equality rulings. Moore has urged the state's Governor to stand against "judicial tyranny" and warned he might not accept the U.S. Supreme Court's final decision on this matter.
On January 23, a federal judge in Mobile struck down Alabama's voter-approved prohibition on same-sex marriage, ruling that the ban violated the 14th Amendment of the U.S. Constitution. On January 27, Moore wrote a letter to Alabama Governor Roy Bentley, asking Bentley to join him in ignoring the federal civil rights decision. Moore also expressed his "dismay" that probate judges in Alabama planned to "recognize and unilaterally enforce a federal court decision which does not bind them" and stated that he "would advise them that the issuance of such licenses [to same-sex couples] would be in defiance of the laws and Constitution of Alabama."
On January 28, he appeared on the Family Research Council's radio show to defend the Supreme Court's now-overturned decision in Bowers v. Hardwick that affirmed state bans on gay sex. Moore told host Tony Perkins that "the danger of [marriage equality decisions] is, if we let judges overturn the will of the people and do nothing about it and do not push that, then the United States Supreme Court turns around and says, 'Well, now, 30 states have adopted this, and that's a majority of the people that want it.'" He followed up this defense of anti-LGBT discrimination on January 29 in a radio interview on The Matt Murphy Show, where he reportedly claimed "that's a very hard decision" as to whether or not he would follow the decision of the Supreme Court if it upheld the marriage equality decisions he condemns.
"Good for him," AL.com's J. Pepper Bryars wrote in support of Moore's recent stand against the federal judiciary's endorsement of marriage equality in his February 3 column. He also applauded Moore's decision to take "an all-too-rare stand against judicial activism in America," and admonished "lawmakers [who] loudly complain about federal judges, but then meekly abide by their rulings without any serious action, it's refreshing to see someone finally push-back in a real way":
Whatever side of the aisle you're on, it should be troubling that our democratic society so easily -- and perhaps too eagerly -- bends the knee to the bench on practically every issue. Is there anything that isn't under their purview? Is there anything that "we the people" can decide for ourselves? It appears that when the courts decide those questions for themselves, without any serious check and balance, the answer is clearly "no."
It's not that federal courts don't have the power of judicial review -- the ability to ensure that laws aren't clearly forbidden by the federal constitution -- it's a matter of scope. As noted in Moore's letter, "nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage."
He's right. There's nothing in the constitution that remotely touches upon marriage, or abortion for that matter, except the part that says whatever isn't written in there must be left to the states to figure out, or to the people. Yet we allow more than a million unborn babies to be killed annually in the United States because nine judges said it was okay back in the 1970s. We're still submitting to that unjust ruling.
National Review's editorial board is arguing that Senate Republicans should "resist" Loretta Lynch's nomination to become the next U.S. attorney general because the board refuses to believe that "amnesty" is not forthcoming, and it falsely claims Lynch thinks there is a constitutional right for undocumented immigrants to work.
On January 28, Lynch appeared before the Senate Judiciary Committee, where questions from Republican members focused primarily on whether Lynch believes that President Obama's immigration action was legal. Legal experts agree that the action -- which temporarily defers deportations for some undocumented immigrants who meet a series of qualifications and pass a criminal background check -- is a lawful exercise of the president's authority to use prosecutorial discretion to prioritize some deportations over others.
Nevertheless, right-wing media are playing up questions from Republican senators who believe that the immigration order is unconstitutional and attacking Lynch for her responses, even if they don't understand what she said. National Review took it further in a January 29 editorial, claiming that confirming Lynch would be "an abnegation of [Senate Republicans'] November mandate and, even more important, their constitutional duty."
The editorial also claimed that Lynch had "evaded questions" from Sen. David Vitter (R-LA) about whether Obama's "amnesty order" will allow law-enforcement agencies to make decisions case by case. The editorial went on to take Lynch's comments about whether undocumented immigrants have the right to work out of context and ignored her subsequent clarification, calling her remarks "constitutionally insupportable":
In Senate confirmation hearings held this week, Ms. Lynch has evaded questions from Louisiana senator David Vitter about whether the amnesty order will actually be carried out on a "case-by-case basis," as even the administration's own lawyers say is required by law, and from Utah senator Mike Lee and Texas senator Ted Cruz about whether a future president could, under President Obama's rationale of "prosecutorial discretion," decline to enforce tax or labor or environmental laws. But among the things she has stated unequivocally is her belief that the president's executive order is "legal and constitutional." She even went further, telling Alabama senator Jeff Sessions that "the right and the obligation to work is one that's shared by everyone in this country regardless of how they came here." Such an assertion is both ahistorical and constitutionally insupportable. But it is the president's own alarming view, and simply confirms that Ms. Lynch, like Eric Holder, would lend the Justice Department's endorsement to the president's lawlessness.
As even Fox News host Megyn Kelly has admitted, the executive action is not amnesty -- it is an exercise of prosecutorial discretion, common in all forms of law enforcement and not just in the context of immigration. According to Kelly, the word "amnesty" is "a hot-button term that the right uses to sort of get people upset."
The Washington Post blog The Fix is claiming that an upcoming Supreme Court decision that could eliminate health care subsidies for millions of Americans under the Affordable Care Act (ACA) "might not matter" because Republicans might restore the subsidies, a proposition that seems not to consider the fact that the GOP has long ignored these tax credits' popularity in their quest to bring the law down, subsidies and all.
In March, the Supreme Court will hear arguments in King v. Burwell, a right-wing challenge to the ACA. The challengers argue that, based on their strained reading of the subsidies provision of the law, which was designed to make health insurance affordable, the IRS does not have the authority to provide tax credits to Americans who purchased their insurance through the federal health care exchange website. Instead, they argue, only consumers who bought insurance through state-based exchanges are eligible for the subsidies -- a problem since Republican-controlled states refused to set up their own sites.
In a January 28 post, The Fix argued that it "might not matter" if the Supreme Court strikes down the subsidies, because a new poll from the Kaiser Family Foundation suggests that the majority of Americans would want the Republican-controlled Congress to restore the subsidies.
But it actually matters a lot -- leading Republicans have repeatedly and publicly sided with the right-wing challengers of the subsidies as a way to bring down the ACA. In September, a group of congressional Republicans filed a brief with the Supreme Court asking the justices to hear the case and to rule that the IRS doesn't have the authority to provide subsidies to Americans who bought insurance through the federal exchange. Republican members of Congress know full well that if they are successful, the ACA will collapse -- that's their self-admitted goal.
Earlier this month, Sen. John Cornyn (R-TX), who was one of legislators who filed the brief, told Roll Call that he expected the court to "render a body blow to Obamacare from which I don't think it will ever recover." In December, Sen. John Barrasso (R-WY) similarly argued that blocking the subsidies was "enough to bring down the health care law. ... We're going to continue to try one, repeal; two, strip out the worst parts of the law; and three, look to the courts." Senate Majority Leader Mitch McConnell similarly made it clear that Republicans are not interested in restoring anything about the ACA if the court "take[s] it down," but rather are looking for a "mulligan here, a major do-over of the whole thing." Even The Fix's post acknowledged that "just because restoring subsidies might be popular doesn't mean congressional Republicans would do it. The GOP base would certainly cry foul if they moved to do so."
Breitbart.com is incorrectly claiming that Loretta Lynch "undercut the legal argument" supporting President Obama's executive action on immigration, when in reality she did no such thing.
On January 28, Lynch appeared before the Senate Judiciary Committee for her confirmation hearing to become the next attorney general of the United States. Lynch is widely considered by people on both sides of the aisle to be a well-qualified pick for the post, but she still faced tough questions from Senate Republicans who, as The New York Times put it, wanted "assurances she would break from some of the practices" of current Attorney General Eric Holder.
One line of questioning in particular centered around Lynch's thoughts on the legality of Obama's recent executive action on immigration that will defer deportation proceedings for some undocumented immigrants. Legal experts agree that the president's action, which will provide temporary administrative relief for certain undocumented parents of U.S. citizens or lawful permanent residents who pass a background check, is "clearly within his discretionary power." Immigrants whose deportations are deferred under this form of prosecutorial discretion are then eligible to apply for work authorization permits and driver's licenses (depending on the state) -- a benefit that was not introduced by Obama, but rather is permitted under the Immigration Reform and Control Act of 1986 and the Real ID Act of 2005, respectively.
Breitbart.com, a site that once spectacularly confused nominee Lynch with a completely different Loretta Lynch in its rush to smear her qualifications, made yet another error in reporting on the confirmation hearing. A January 28 post on Breitbart claimed that Lynch "[p]erhaps by accident" had "undercut the legal justification the president has given for his executive amnesty for millions of illegal aliens during her confirmation hearing." Aside from incorrectly defining the president's immigration actions as "amnesty" -- a mistake that other conservative media figures like Fox News' Megyn Kelly have avoided -- Breitbart homed in on an exchange between Lynch and Sen. Mike Lee (R-UT), who asked about limitations on using prosecutorial discretion to prioritize deportations. Breitbart quoted Lynch's response:
I think that if a prosecutor were to come to the view that they had to prioritize one crime over another, you would always still want to retain the ability -- even if it was an area that was not an immediate priority -- if for example it became one. Because if a particular neighborhood was being victimized, or again to use your issue of speeding, there were deaths resulting from that. You would want to have the ability to, if you could, take resources and focus on that issue. It might not be the first priority but you would want to have the ability to go back and deal with that issue.
Breitbart went on to argue that, in her response, "Lynch effectively admits that what Obama has done with executive amnesty -- providing legal documentation and work permits for millions of illegal aliens, thereby legalizing their status in the United States -- far exceeds any reasonable definition of prosecutorial discretion. She also said that prosecutors should keep the door open to prosecuting an illegal action that isn't currently a priority if it becomes one eventually. So even if illegal immigration isn't a priority right now for whatever reason, prosecutors need to be able to go after that crime later."
What she said does not "undercut" the policy at all. By definition, the executive actions (which are reversible themselves) that grant temporary administrative relief by deferred action "keep the door open" and allow law enforcement "to go after that crime later," as Lynch stated. The hint is in the name of the actions, which Breitbart did not cite: the "case-by-case" Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA) programs.
Given the fact that it would be impossible for law enforcement to deport every person currently living in the United States without the appropriate documentation, it is essential to prioritize some removals over others. Lynch's comments do not undermine the administration's position, which she said was "reasonable" -- they simply explain how prosecutorial discretion, such as DAPA and DACA, works in practice.