Fox News is sending a mixed message about whether or not President Barack Obama has the legal authority to address the immigration crisis through executive action, even though legal experts agree that such action is perfectly lawful.
After Republicans in the House failed to consider a comprehensive and bipartisan immigration reform bill passed by the Senate, President Obama announced that he would take steps to address the issue through lawful executive actions. One possibility is the expansion of the Deferred Action for Childhood Arrivals (DACA) program, which temporarily halts deportation proceedings for young law-abiding undocumented immigrants -- an exercise of standard prosecutorial discretion typical of law enforcement agencies. After the Democrats lost control of the Senate on November 5, the president repeated his promise to move on immigration reform in the absence of congressional action, explaining at a press conference that "we're gonna take whatever lawful actions that I can take that I believe will improve the functioning of our immigration system."
Some Fox News hosts were skeptical about whether the president has the authority to take unilateral executive action, however. On the November 7 edition of Outnumbered, co-host Andrea Tantaros complained that Obama "doesn't care about the constitution" and that he would "get away with" executive action on immigration because "some pointy-nosed Harvard lawyers [will argue] whether or not this is constitutional."
Tantaros' complaints echoed her Fox colleague Sean Hannity, who on the November 6 edition of his show criticized the president's pledge to take executive action on immigration. In an interview with Sen. Mike Lee (R-UT), Hannity argued that the president "may not have the authority do this" and that "immigration law does not allow for the amnesty that the president wants to grant." Lee agreed with Hannity's assessment, and suggested that the proposed order would "lead us from behind into a constitutional crisis":
Fox News hosts Jon Scott and Heather Nauert suggested that California voters did not know what they were doing when they passed a ballot measure that will reduce criminal penalties and address unconstitutional overcrowding in the state's prisons.
On November 4, Californians voted to pass Proposition 47, known as the Safe Neighborhoods and Schools Act. As the Huffington Post reported, the measure would downgrade "nonviolent felonies like shoplifting and drug possession" to misdemeanors, an act that would lead to about "40,000 fewer felony convictions" and save the state "hundreds of millions of dollars on prisons" annually.
On the November 6 edition of Happening Now, hosts Heather Nauert and Jon Scott hosted a panel that included the author of Proposition 47 to discuss what the legislation would mean for California. Nauert suggested that those who voted for measure may not have known what they were doing. Asking "if the people who voted for that proposition knew what it was really all about," Nauert called its title "misleading" while Scott mused that "you do have to wonder" about it since "everybody wants safe schools and neighborhoods... but do they know what they were really voting for?":
But Fox's assessment of voters' inability to grasp what they were voting for ignores the wide-margin by which the measure passed. Capturing 58 percent of the vote, Proposition 47 proved widely popular with Californians at the ballot box.
Moreover, the new law will bring the California justice system in compliance with its constitutional obligations. In 2011, the Supreme Court ordered California officials to reduce its prison population, which had grown to unconstitutionally high levels after the state enacted a "three-strikes law" in 1994 that forces judges to sentence repeat offenders to prison for life. Writing for the majority, conservative Justice Anthony Kennedy determined that California's prison system resulted in "needless suffering and death" as a result of "serious constitutional violations." Kennedy continued:
Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the "primary cause of the violation of a Federal right," specifically the severe and unlawful mistreatment of prisoners through grossly inadequate provision of medical and mental health care.
California lawmakers were still struggling to address "severe overcrowding" in the state's prison system earlier this year, but Proposition 47 is one step towards getting the state in line with the Supreme Court's order while still ensuring that violent offenders remain in prison.
Nauert and Scott's comments are just the latest Fox attack on voters. The network has previously suggested that young women shouldn't vote, that young people should stay away from polls "if they don't know the issues," and that Americans should have to pass citizenship tests before gaining the right to vote.
A consumer class-action lawsuit about allegedly defective washing machines is proceeding in favor of the company, a result being called a "vindication of consumer class actions," even though The Wall Street Journal held up the lawsuit as an example of why class actions are inherently unfair to corporations accused of wrongdoing.
The washing machines, manufactured by Whirlpool and Kenmore and sold by Sears and other retail stores, had a defect that caused the washers to accumulate mold and emit a bad smell. Despite over a million complaints, Whirlpool continued making the washers, and Sears continued to sell them. A group of consumers ultimately filed a class-action lawsuit after Whirlpool's design changes and special cleaning solution failed to fix the problem.
The "moldy washer" case has been working its way through the court system for the last several years, and right-wing media have repeatedly called on the Supreme Court to take the case as an opportunity to "rein in" class action lawsuits by changing the rules to disallow this type of collective legal action. The Wall Street Journal was particularly riled up over the case, claiming that these suits should not be certified in the first place because "[e]very trial lawyer in America knows that certifying a class nearly always compels a company to settle rather than to face the barrage of bad PR and litigation costs." The Journal also accused 7th U.S. Circuit Court of Appeals Judge Richard Posner of "clearly disregard[ing]" the Supreme Court's previous rulings because he allowed the moldy washer plaintiffs to certify as a class and proceed to trial and rejected the judge's idea that "class actions are the most efficient way to handle the mold complaints." The Supreme Court ultimately declined to disturb Posner's judgment.
This Election Day, a number of states are implementing strict new voter ID laws and registration policies in a high-turnout election for the first time. These measures have been found to have the potential to disenfranchise thousands of voters -- typically people of color, young voters, and women -- who are unable to obtain select forms of ID or are caught in flawed voter purges, but right-wing media figures frequently argue that these laws do not suppress the vote.
The right-wing media have repeatedly claimed that these laws are not racially discriminatory, do not affect minority voter turnout, and maintain the integrity of the election system. Fox News has referred to recent court decisions striking down voter ID laws as illegal or unconstitutional "setbacks" and questioned the timing of the courts' intervention on behalf of the right to vote. Right-wing media have also railed against attempts to stop voter purges, despite the fact that reports have discovered "Hispanic, Democratic and independent-minded voters are the most likely to be targeted" in these methodologically unsound attempts to find ineligible voters.
Repeatedly discredited National Review Online contributor Hans von Spakovsky has been particularly vocal in his support of these unnecessary and redundant election measures, dismissing concerns of "chaos at the polls" even though hundreds of thousands of voters are at risk. On the November 2 edition of Fox News' America's News HQ, von Spakovsky again promoted strict voter ID laws and registration checks and claimed that "this idea" that voter ID laws can "suppress minority voters, we know is not true":
But qualified voters are already being turned away from the polls or purged from the rolls in states that have enacted these new Republican-pushed measures, despite right-wing media's promises that such laws would have no negative effect.
In its most recent effort to defend discriminatory and unnecessary strict voter ID laws, National Review Online has resorted in the past week to recycling debunked myths about this type of voter suppression, most recently linking voter ID to noncitizen voting, which is an unrelated issue.
With the midterm elections coming up, right-wing media are aggressively lying about voter ID laws and voter fraud, and NRO is no exception. NRO has previously praised Texas' strict voter ID law -- which has been found to be racially discriminatory in both intent and effect -- called for the remaining protections available under the Voting Rights Act to be repealed or limited, and dismissed concerns over Wisconsin's voter ID law, which has the potential to disenfranchise hundreds of thousands of voters when it goes into effect.
In just the past week, NRO writers have doubled down on nearly all of these poorly supported right-wing positions. National Review editor Rich Lowry defended Texas's strict voter ID law -- which a federal judge determined to be an "unconstitutional poll tax" -- by arguing that the disenfranchisement these laws cause is justified by the potential for in-person voter impersonation, even though that kind of fraud is virtually non-existent. Lowry also incorrectly claimed that strict voter ID laws require the same level of identification needed to buy a gun. NRO contributor Hans von Spakovsky wrote in The Wall Street Journal that "moves to shore up election integrity have been resisted by progressives" who are challenging the legality of voter ID laws "without evidence that such efforts suppress minority turnout" -- despite the fact that a recent report found a decrease in voter of color turnout in two states was attributable to strict voter ID. For good measure, von Spakovsky, a discredited proponent of restrictive election rules, also conflated other forms of voter fraud with in-person impersonation, the only type of fraud voter ID prevents.
The dissembling continued with another NRO contributor, Mona Charen, offering more of the same in a post titled "The Voter-ID Myth Crashes." Charen seized on a contested study of the rate of noncitizen voting to claim that "[b]eing asked to show a photo ID can diminish several kinds of fraud, including impersonation, duplicate registrations in different jurisdictions, and voting by ineligible people including felons and noncitizens," but buried the fact that "[v]oter-ID laws will not prevent noncitizens from voting."
The Wall Street Journal is defending BP's decision to fight its legal responsibilities in the wake of the 2010 Deepwater Horizon oil spill by criticizing both class-action lawsuits and the settlement agreement that BP itself agreed to.
The Journal is vocally opposed to class action lawsuits and has previously criticized them as frivolous, abusive, and beneficial only to trial attorneys. Yet the editorial board apparently isn't fond of companies that take responsibility for their harmful actions and settle, either -- even though these settlements can be a less costly alternative to class action lawsuits.
In a recent editorial, the Journal was supportive of BP's latest efforts to avoid having to pay claims related to the oil spill that it caused and that has still not fully been cleaned out of the Gulf of Mexico. Even though BP helped craft and agreed to a billion-dollar settlement deal in order to avoid a trial result that could have been even more damaging, the company is now questioning the terms of the agreement. The Journal is fully onboard with BP's tactics, despite the fact that BP has repeatedly lost its varied attempts to disregard the settlement. The Journal wrote that the ensuing payments to claimants represent "an all-you-can-eat buffet" that is "the best thing ever to happen to the trial lawyers who continue to exploit the accident for fun and profit."
The editorial went on to call on the Supreme Court "to impose discipline on the class-action lawsuit industry" by voiding the settlement under a far-fetched legal theory that could foreclose the ability of anyone to agree to a settlement:
The fund has become an all-you-can-eat buffet and everybody is invited, regardless of the cause of the damages they may or may not have suffered. As long as claimants can show a material loss within certain geographical regions, they qualify.
BP sued to break this wave of abuse but lost in front of [federal district court Judge Carl] Barbier and then mostly again amid a tangle of opinions at the Fifth Circuit Court of Appeals. But the major question for the High Court to resolve isn't a narrow dispute about whether [claims administrator for the settlement fund Patrick] Juneau's or BP's interpretation of the terms is right. Rather, it's whether the courts can certify a class in which thousands of people cannot prove they suffered injuries that the defendant caused and could never succeed in an individual lawsuit, as even Mr. Juneau has conceded.
A class settlement is not a mere understanding among private parties but carries a judicial imprimatur -- or at least is supposed to outside of the Bayou. The legal system is not allowed to convert non-claims into legitimate claims under either Federal Rule of Civil Procedure No. 23 or especially Article III of the U.S. Constitution.
The main reason is that aggregating real and false torts exceeds the constitutional bounds that limits judicial power to "cases and controversies." If BP wants to run a pot-of-gold fund, that's its business, but the courts can't play the administrator.
As strict voter ID laws are put into effect ahead of the midterm elections, recent judicial opinions and social science studies continue to poke holes in right-wing media's defense of voter suppression.
The Wall Street Journal is advocating for the elimination of decades-old law crafted in the wake of the Watergate scandals that prevents coordination between independent groups and political candidates -- a radical position the Journal pretends is a rejection of a "liberal campaign" but actually is a rejection of the conservative majority opinion in Citizens United.
In an October 20 editorial, the Journal praised a highly controversial federal district court judge's newest attempt to legalize prohibited coordination between Gov. Scott Walker (R-WI) and outside right-wing groups. Under investigation for suspected violation of campaign finance laws, these organizations are suing in an attempt to have rules against this type of coordination declared unconstitutional. Although the Citizens United decision allowed corporations to make previously disallowed expenditures in support of political candidates, the opinion from the conservative justices still recognized that a crucial guard against corruption was the federal prohibition on coordination between unlimited "independent" money and the politicians' actual campaigns. Yet the campaign finance nihilists on the Journal editorial board object to this long-established principle as well, misleadingly referring to coordination as a "new liberal target":
That came into stark view last week with a new and welcome judicial ruling in Wisconsin, only days after the Brennan Center issued a trumpet call for government to find more ways to criminalize campaign spending. The new liberal target is "coordination" between politicians and independent groups. This is dangerous stuff.
[The plaintiff in the Wisconsin campaign finance case] is Citizens for Responsible Government Advocates, an advocacy group that wants to collaborate with politicians on a project called "Take Charge Wisconsin" to educate the public about fiscal responsibility and property rights. But the group was unsure it could proceed under Wisconsin law as interpreted by prosecutors, so it sought relief in federal court.
The problem is that Wisconsin and other states have set up elaborate bureaucracies like the Government Accountability Board (GAB) to police free speech and harass individuals and groups that want to run political advertising. Wisconsin's GAB and Milwaukee District Attorney John Chisholm "have taken the position that coordinated issue advocacy is illegal under Wisconsin's campaign finance law," wrote Judge [Rudolph] Randa.
That legal interpretation has already been rejected by state judge Gregory Peterson, but the state and Mr. Chisholm are appealing. Thanks to Judge Randa's ruling, at least the conservatives will be able to engage in issue advocacy without fear of prosecution in the few remaining days before the election.
It's important to understand that this political attack on "coordination" is part of a larger liberal campaign. The Brennan Center -- the George Soros-funded brains of the movement to restrict political speech -- issued a report this month that urges regulators to police coordination between individuals and candidates as if it were a crime.
The report raises alarms that independent expenditures have exploded since the Supreme Court's 2010 Citizens United decision, as if trying to influence elections isn't normal in a democracy.
Although the Journal insists that attempts to eliminate coordination between independent groups and candidates are a liberal plot, it is actually a bipartisan goal that has been repeatedly endorsed by the Supreme Court, including its conservatives. In the 1976 case Buckley v. Valeo, the Court found that "[u]nlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign, and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate." In other words, the Court determined that a lack of coordination between candidates and outside groups is necessary to reduce the potential for or the appearance of corruption in the political process, the core reason campaign finance is regulated.
A pair of recent studies debunk some of right-wing media's favorite rationales for legal "reforms" that make it more difficult for consumers to sue corporate wrongdoers.
Right-wing media have consistently railed against class action lawsuits, despite the fact that such suits make it easier for consumers to group low-value claims together that attorneys might otherwise not take. The Wall Street Journal in particular has been critical of class actions, calling them "frivolous," too expensive, and only beneficial to the plaintiffs' lawyers. In one editorial after the Supreme Court upheld the decades-long use of class actions for investors in securities, the Journal attacked the decision as "a champagne day for trial lawyers ... as the Justices voted to maintain the status quo." In another, the editorial board claimed that class action lawsuits that were filed to help workers recover back wages for the time they spent waiting in security check lines "would benefit lawyers far more than workers," ignoring the potential wage theft at issue.
But two new studies undercut some of the main premises behind the Journal's anti-lawsuit crusade. According to a recent report from the Center for Justice & Democracy, "class actions have not only helped victims of corporate law-breaking, but have also resulted in injunctive relief that protects us all from a wide array of corporate wrongdoing, from employment and civil rights violations to price-fixing and consumer fraud to automotive defects to health care abuses." From servicemember financial abuse to systematic sex discrimination at the country's largest employers, the report analyzed hundreds of class action lawsuits and settlements and found that nearly all of them provided meaningful relief to the plaintiffs who had been injured or defrauded. CJ&D note that "without the class action tool, corporations and businesses can ignore the law far more easily and operate with impunity."
Moreover, the conservative idea that class action lawsuits result in higher costs in the industry with the challenged practices is also suspect -- at least in the context of healthcare. A new study from the Rand Corporation suggests that even though "many believe that fear of malpractice lawsuits drives physicians to order otherwise unnecessary care and that legal reforms could reduce such wasteful spending," states that have enacted such reforms have not seen a corresponding reduction in healthcare costs.
For example, as The American Prospect's Paul Waldman explained, healthcare costs have actually gone up in Texas since the state passed a constitutional amendment that severely limited money damages that could be recovered in medical malpractice suits:
[I]n Texas, they passed a constitutional amendment in 2003 that made it almost impossible to recover meaningful damages from medical malpractice. That was good for doctors -- the number of malpractice claims plummeted, and malpractice premiums went down -- but instead of falling, health care costs in the state actually rose faster than in the rest of the country.
When you ask Republicans what they'd like to do to reform American health care, the first thing out of their mouths is usually "tort reform." But the fact that all the evidence suggests it would do nothing to cut costs is probably not going to dent their commitment to laws limiting people's ability to sue for malpractice. That's because the truth is that conservatives see this as a moral question as much as a fiscal one. "Frivolous lawsuits" make them livid, and as far as they're concerned a frivolous lawsuit getting filed (even if it never goes anywhere) is a greater outrage than someone who was victimized not being able to get compensation.
Class action lawsuits provide a valuable legal remedy for consumers who have been defrauded or injured by large corporations, but right-wing media have often discounted their value and hyped their supposed societal costs. Yet as these recent studies once again demonstrate, conservative justifications behind tort "reform" seem to be based less on sound policy and more on antipathy to a court system that encourages corporate accountability.
Fox News is claiming that Democratic campaigns and supporters are vastly outspending their Republican counterparts during this election cycle, a suggestion that appears to focus on super PACs and ignores the influence of "dark money" spending that favors the GOP.
On the October 10 edition of America's Newsroom, host Bill Hemmer stated that Democrats have "got a lot of money ... and they're spending it, in some states, 4-to-1 over Republican candidates." National Review Online editor-at-large and Fox News contributor Jonah Goldberg repeated a similar claim on the October 13 edition of Happening Now, downplaying secretive right-wing donors like the Koch brothers and arguing that "the reality is, is that most of the money is actually on the Democratic side" in contentious Senate races like the one in Kentucky:
HEATHER CHILDERS (guest host): So, a lot of this also is coming down to money. And we are talking about big amounts of money that are being spent from both sides in these particular states, so how is that going to influence things?
GOLDBERG: Sure, well, it depends on state by state. You know, in some of these places, you just don't have enough physical airtime in the space-time continuum to buy more ads. I mean, people are throwing in -- you know, the Democrats are just announcing [unintelligible] a million dollars into South Dakota. A million dollars probably would buy, you know, who knows how much airtime in South Dakota at this point. And so you're seeing things saturated all over the place. One of the things that has helped Democrats enormously is, they have actually raised vastly more money than Republicans have at a lot of these different levels. They're spending a lot more money. In North Carolina, they're outspending Republicans, I think, 2-to-1, and yet they claim that it's all the evil Koch brothers and their sort of other James Bond-like villains who are throwing all the money into Republicans. When the reality is, is that most of the money is actually on the Democratic side, but a lot of the mainstream media covers it as if, "Oh, it must be the Republicans who are taking advantage of all of this outside money." [emphasis added]
On October 15, Fox News correspondent Jim Angle continued the network's inapt comparison of the Koch brothers to high-dollar Democratic donors. Angle didn't mention that unlike the progressive billionaires and unions he highlighted, conservative activists like the Kochs are unwilling to publicly stand behind the right-wing policies their billions of dollars fund.
Fox News' narrative is misrepresenting the full and current story on campaign spending, which actually shows that a deluge of undisclosed outside money is supporting Republicans and outpacing similar expenditures for Democrats -- especially in the Kentucky contest.
The 4-to-1 statistic that Hemmer used may be a reference to a widely cited report from The Wall Street Journal that found super PACs aligned with Democrats had raised four times more than their Republican counterparts. By focusing on super PAC figures, Fox News is ignoring massive spending from outside right-wing groups like the U.S. Chamber of Commerce, Fox News contributor Karl Rove's Crossroads GPS, and the Koch brothers' network of secretive and increasingly political groups. These organizations don't reveal their donors, and sometimes -- depending on the type of ad they are running -- they don't even reveal their expenditures. Groups of that sort have spent more "dark money" -- funds from undisclosed donors -- than Democratic-leaning groups have.