National Review Online called upon Republican state officials to "create a 30-state united front with Oklahoma" and join a challenge to the legality of new insurance marketplaces set up under health care reform, without mentioning that the theory behind this lawsuit is not new and has been widely criticized.
Claiming Republican Attorney General Scott Pruitt of Oklahoma has "found an ingenious way to call a halt to the Obamacare project," NRO failed to note that the administrative law challenge is neither new nor of Pruitt's creation, but rather represents his last-ditch attempt to salvage his previous constitutional challenge to the Affordable Care Act, rendered irrelevant by the Supreme Court's historic rejection of similar arguments in 2012.
Not credited by NRO, Pruitt's lawsuit is based on a novel theory of two libertarian conservative scholars and long-time and persistent Affordable Care Act critics, one of whom is an NRO contributing editor. Their highly contentious argument is that the new health care reform marketplaces, otherwise known as "exchanges" managed by either the federal or state governments, can only offer crucial tax credit subsidies for purchasing private insurance if the system is state-run. From NRO's description of the challenge:
Oklahoma attorney general Scott Pruitt has found an ingenious way to call a halt to the Obamacare project: Hold the federal government to the letter of that misbegotten law. His fight is a lonely one: While a majority of states signed on to the 2010 lawsuit opposing Obamacare on constitutional grounds, Oklahoma is standing largely alone today.
The tax credits apply only to those using exchanges created by the states. The federal government can create its own exchanges within states; however, it has no authority under the law to use them to offer subsidies and inflict the accompanying taxes.
But there was an unforeseen development: Some 33 states have refused to create those exchanges, Oklahoma among them. If a state's residents are not eligible for exchange subsidies, then its employers are not subject to the associated punitive tax. Contra the administration's amen corner in the media, this was not a rookie drafting error in the legislation -- it was an intentional feature of the bill. The law is explicitly written to deny subsidies to states that refuse to create exchanges. The president and congressional Democrats simply failed to anticipate that the majority of states would refuse to create exchanges.
NRO incorrectly characterizes the widespread debunking of this argument as merely an "inventive legal theor[y]" of the Department of Justice in service of the Obama administration's "habitually cavalier disregard for the rule of law."
Right-wing media are continuing to follow GOP talking points opposing filibuster reform by pretending President Obama's attempts to fill judicial vacancies are dangerously unprincipled.
By shamelessly repeating Sen. Chuck Grassley's debunked analogy that the president's current nominations to the important U.S. Court of Appeals for the D.C. Circuit are a "type of court-packing reminiscent of FDR's era," right-wing media appear to be running out of excuses for rampant Republican obstructionism. Consequently, this "radical and different" treatment of the president's nominees as opposed to that of past Republican presidents has led to the real possibility that Senate rules will be changed in July to require up-or-down votes for executive and judicial nominees.
GOP insistence on clinging to an ahistorical characterization of the president's moves to fill existing seats on the D.C. Circuit as tantamount to former President Franklin Roosevelt's proposal to create new seats on the Supreme Court has been dismissed as "silly on its face" and incapable of "passing the laugh test" by multiple experts.
Nevertheless, The Weekly Standard has parroted the false line, declaring that the "nominations are simply a power play" so the court will "vote in his administration's favor all the time." The Wall Street Journal similarly warned that the president wanted judges who "rubber stamp liberal laws," leading him to his "flood-the-zone strategy" for the D.C. Circuit, "a liberal power play that shows contempt for traditional political checks and balances." Breitbart.com is breathlessly proclaiming the nominations show "Obama has declared war on judicial independence" and is "trying to declare law by executive fiat."
Ironically, Grassley and now Rep. Tom Cotton have introduced bills that would block the president's nominations by eliminating the vacant seats -- literally court-packing in reverse. In a companion move to their bad sense of history, the GOP is relying on bogus numbers to claim the D.C. Circuit doesn't need the president's nominees because of its workload, an assertion refuted not only by the nonpartisan Judicial Conference of the United States (which recommends the size remain the same), but also by the court's former Chief Judge and the Chief Justice of the Supreme Court. Right-wing media are nonetheless repeating this discredited spin, in support of the unprecedented Republican blockade of judicial nominees.
The additional GOP threat of filibusters of the president's executive nominees to head the Labor Department, the Environmental Protection Agency, and the Consumer Financial Protection Bureau has led Senate Majority Leader Harry Reid to warn he will demand a simple majority vote for all of the president's nominees in July.
Right-wing media are continuing to claim Attorney General Eric Holder lied under oath because of a a search warrant request that included Fox News reporter James Rosen, a myopic smear conservative legal experts are warning is baseless.
Picking up where Fox News and Washington Post blogger Jennifer Rubin left off, The Wall Street Journal is repeating Republican politicians' attack that either Holder perjured himself in a May 15 statement before Congress as to whether journalists were improperly surveilled or a 2010 affidavit in a search warrant request for the criminal investigation of a State Department employee's leak of classified information was "false." From a June 2 WSJ editorial:
In its 2010 affidavit seeking a warrant to search the email of Fox News reporter James Rosen, Justice said there was "probable cause" to believe Mr. Rosen "has committed or is committing a violation" of the Espionage Act "as an aider and abettor and/or co-conspirator." That sounds like a serious criminal charge, and Mr. Holder personally approved the warrant request.
Yet now, amid a media uproar, Mr. Holder's spinners are saying Justice never intended to prosecute Mr. Rosen. But if that's true, then the Department's warrant affidavit contained false claims about Mr. Rosen. Prosecutorial dishonesty is more common than it should be, but Justice officials don't usually cop to it as a way of defending an Attorney General. Should judges assume that the "probable cause" and "co-conspirator" claims in Justice's next warrant request are also a ruse?
Right-wing media continue to push the incorrect and narrow claim that Holder perjured himself by testifying that "[i]n regard to potential prosecution of the press for the disclosure of material -- this is not something I've ever been involved in, heard of, or would think would be wise policy," although Rosen had been previously named as a possible "co-conspirator" for soliciting classified information from a government official who was allegedly violating the Espionage Act.
Beyond the credibility problems of this selective outrage, conservative and libertarian legal experts are now raising another issue that this scandal-mongering is missing: right-wing media's cries of perjury are completely unsupportable.
Right-wing media are wildly distorting facts and criminal procedure to pretend Attorney General Eric Holder "lied" to Congress when he testified about government surveillance of journalists and prosecutorial discretion at a May 15 hearing.
Now that the possible chilling ramifications of legal searches of reporters' work product have been widely condemned not only by the press, both political parties, and President Obama and Holder, right-wing media have resorted to misrepresenting search warrant procedure, criminal law, and basic facts of what the Department of Justice (DOJ) actually did in their investigation of how a State Department employee may have violated the Espionage Act of 1917.
Specifically, right-wing media claim Holder's May 15 testimony is inconsistent with a two-year-old affidavit DOJ filed in support of a search warrant request for an email account associated with Fox News' James Rosen, as part of their investigation into the government official's unauthorized disclosure of classified information. Fox News host Sean Hannity was the most recent example, who showed a clip of the testimony on his May 29 show and then stated "what you just witnessed was the United States Attorney General lying while under oath before Congress."
Continuing in a vein set by Fox News host Megyn Kelly on the May 28 edition of America Live when she complained "it is one thing for the DOJ to go into a courtroom and try to get your records, your phone records, your email records. It's quite another for them not to give you any notice[,]" right-wing media is complaining that the underlying legal rationale behind the warrant request was incorrect. In support of this argument, the Drudge Report has been pushing claims made on Breitbart.com that Holder went "judge shopping" in pursuit of approval for this supposedly flawed search warrant.
The Washington Times attempted to recycle misinformation about Senate Majority Leader Harry Reid's warning that GOP obstructionism of President Obama's nominees is unsustainable, but published an inaccurate argument that doesn't support its own rhetoric.
In a May 24 editorial, The Washington Times claimed Reid's announcement that he would revisit filibuster reform in July because of the unprecedented obstructionism of the president's executive and judicial nominees "disturbed the peace of the Senate" and was a "variant" of court-packing analogous to former President Franklin Roosevelt's famous threat to expand the number of seats on the pre-war Supreme Court. From the editorial:
Senate Majority Leader Harry Reid doesn't like the direction the federal judiciary is heading, so he has come up with a variant of court-packing to achieve his results. He took the Senate floor Wednesday to defend the use of the "nuclear option" to bypass Senate rules and force through President Obama's nominees to the U.S. Court of Appeals for the District of Columbia Circuit.
That would be the same court whose three-member panel in late January ruled, unanimously, that Mr. Obama's faux "recess appointments" of Big Labor-approved nominees to the National Labor Relations Board were unconstitutional. "You have a majority in that court that is wreaking havoc in the country," Mr. Reid complained, citing only the NLRB ruling. "For the first time in 230 years, they ruled the president can't make a recess appointment."
The three judges accused of havoc-wreaking merely made the point, obvious to English-speakers everywhere, that the president is obliged to wait for a recess before he can make a recess appointment.
Mr. Reid's rant disturbed the peace of the Senate amid debate over how quickly to proceed with the nomination of Deputy Solicitor General Sri Srinivasan to the 11-member D.C. appeals court, which currently has four vacancies. Mr. Reid's claim that the vacancies must be filled at once to restore ideological "balance" to the court is patently false, given that four of its seven judges are appointees of Republican presidents and three were appointed by Democrats. Four more liberal judges would likely guarantee a rubber stamp for Mr. Obama's agenda. Some "balance."
Mr. Reid is trying to follow the example of Franklin D. Roosevelt, who dreamed up the concept of outcome-based adjudication with his 1937 attempt to pack the U.S. Supreme Court.
Contrary to The Washington Times' description that Reid is trying to "bypass Senate rules," Reid is actually adopting a GOP proposal that was floated when Republicans were in the majority, which was to change Senate rules to allow filibusters to be broken by majority vote. Although a handful of longer-tenured Democratic Senators have been hesitant at such a move - the so-called "nuclear option" - the stark realization that GOP opposition to the president's agenda has extended to blanket opposition of his nominees is reportedly causing a change in position.
The Wall Street Journal demonstrated why a Senate rule change that prevents filibusters against executive and judicial nominations may be overdue when it baselessly opposed yet another of President Obama's picks.
Continuing its seemingly knee-jerk resistance to any and all of the president's nominations, the WSJ recently pushed the GOP to oppose making Tony West's job of acting associate attorney general permanent without a legitimate reason for obstruction. Rather, the WSJ floated the idea that West should be opposed because he worked at the same address as Labor Secretary nominee Thomas Perez and was consulted on a civil rights case that the WSJ has scandal-mongered. From WSJ editorial board member Mary Kissel's column:
[S]enators shouldn't miss the chance to explore Mr. West's acquiescence in the legal quid pro engineered between late 2011 and early 2012 by his colleague, Justice civil-rights chief, Thomas Perez.
[West has] promised to "work to ensure that legitimate whistleblowers are taken seriously and treated fairly and lawfully."
Did Mr. West change his mind about that statement, or did he let Mr. Perez make decisions about an important case--one that could have netted taxpayers some $200 million--on his behalf? Either way, the episode raises questions about his legal judgment. That may not be enough to stall his confirmation, but Mr. West certainly deserves scrutiny for this sorry episode.
Kissel has a record of identically using this smear against anyone "involved in 'communications'" with Perez on this matter. Such targets include the president's most recent nomination to the U.S. Court of Appeals for the D.C. Circuit, the bipartisan-supported Principal Deputy Solicitor General Srikanth Srinivasan. Senate Majority Leader Harry Reid (D-NV) recently indicated that he has reached his breaking point with the parallel GOP obstructionism to the president's nominations, fueled by right-wing media such as the WSJ.
The Wall Street Journal is endorsing Republican Sen. Chuck Grassley's absurd claim that the U.S. Court of Appeals for the D.C. Circuit doesn't need to fill its judicial vacancies, a position the senator didn't take when he was helping confirm former President George W. Bush's right-wing judges.
Despite the newspaper's own reporting on the rampant GOP obstructionism that has prevented President Obama from easing the judicial emergencies caused by vacancies in the federal courts, the editorial page of the WSJ continues to applaud Republican filibusters of the president's nominations.
The most recent example is the WSJ's stamp of approval for Grassley's disingenuous proposal to reduce the number of non-senior seats on the D.C. Circuit from 11 to eight, thereby preventing the current Democratic president from nominating judges to this appellate bench considered second in importance only to the Supreme Court. From the editorial:
It's good to be the king. When the federal courts overturn your Administration's rules or find decisions unconstitutional, you can pack them with judges more likely to rule your way. That seems to be the working theory at the White House, where word is that President Obama is close to nominating several new judges to sit on the D.C. Circuit Court of Appeals.
The court doesn't need the judges. The D.C. Circuit is among the most underworked court in the federal system. Lawyers can under most statutes now bring challenges to federal agencies in either the D.C. or a local circuit. Liberals prefer the Ninth Circuit, while conservatives used to favor the Fourth but might now choose the Fifth. In any case this means fewer cases for D.C.
Last year the D.C. Circuit saw 108 appeals per authorized judge, compared to roughly four times as many on the Second and Eleventh Circuits--the country's busiest. And the court's workload is trending down. Even if the court had only eight authorized judges, its docket would still be among the lightest in the country.
Mr. Obama ought to settle for adding [recent nominee and Principal Deputy Solicitor General Srikanth "Sri" Srinivasan] to the court. If he insists on trying to pack it, Republicans should just say no.
The editorial - like Grassley's plan - is extremely inaccurate, merely another transparent excuse to justify the relentless and unprecedented Republican filibusters of President Obama's judicial nominations.
Right-wing media are increasingly and uniformly pushing the "personhood" position in their anti-choice attacks, an absolutist argument that equates fetuses with persons and goes beyond repealing Roe v. Wade to banning all abortions.
As recently as the 2012 presidential campaign, the GOP standard bearer claimed that although he opposed Roe v. Wade, he supported standard exceptions to abortion restrictions, and overturning 40 years of reproductive rights precedent would merely "return to the people and their elected representatives the decisions with regards to this important issue." This so-called moderate Republican position on "limits on abortion" was endorsed by prominent right-wing media figures such as Jennifer Rubin of The Washington Post, who assured her readers that "the GOP isn't waging a 'war on women'; it is waging a war on abortion on demand."
Now that the election is over, Rubin is following the lead of right-wing media and using convicted murderer Kermit Gosnell to attack extremely rare and mostly prohibited late-term abortions, by arguing a "baby is far more than a fetus" or a "a clump of cells" because "there's a lot of science out there that...allows us to save these children." From Rubin's appearance on the May 13 edition of Fox News' America Live:
We're talking about infants that if they would be operated on, for example, by a surgeon at 24 weeks, would likely survive. As you say, you can take sonogram, you can see them sucking their thumb, they respond to music, there's all sorts of indications that that baby is far more than a fetus, which is the way the pro-abortion lobby likes to refer to it. And I think this makes Americans confront that. The president doesn't want to talk about it. He goes out and talks to Planned Parenthood, and says I'm all with you folks, and those are the people who want abortion on demand for any reason, any place, any time.
I think one of the problems that the abortion lobby is having is the science. They say conservatives don't like science. Well, there's a lot of science out there that not only allows us to save these children but also allows you to see them. And to obtain an indication that this is something far more than just a clump of cells.
In falsely comparing Gosnell's killing of newborns with legal abortion, Rubin is making an important rhetorical shift that is being repeated elsewhere on Fox News. On May 14, Fox News co-host of The Five, Andrea Tantaros, did the same:
[Gosnell's conviction] gives the pro-life movement an argument against the pro-abortion movement, which is they continue to argue, argue, argue in favor of abortion. However, this court just said, you kill a baby outside the womb, it's murder. But what about a baby inside of the womb? That question has to be answered. And I think that this does give the pro-life movement some fuel for their fight.
The Wall Street Journal debunked the false equivalency of its editorial page that insists the current GOP blockade on President Obama's judicial nominees is unremarkable "turnabout" and merely follows "filibuster precedent" set by Democrats.
In a May 13 article, the WSJ's Washington Bureau Chief Gerald F. Seib detailed the unprecedented Republican obstructionism of the president's agenda, which not only attempts to nullify his policy initiatives by hamstringing executive agencies, but more seriously by filibustering his picks for the federal courts.
As explained by Seib, the Republican refusal to allow up or down votes on President Obama's judicial nominations is both unparalleled and has turned the Senate into an "embarrassment to itself...that increasingly infects the rest of government with its paralysis." From his May 13 article:
The Obama administration must shoulder some blame for this predicament. It has been slower than its predecessors to vet and nominate judicial candidates.
But the lion's share of the blame lies with the Senate, a body that's becoming an embarrassment to itself and that increasingly infects the rest of government with its paralysis.
This problem has been building for years. A recent study by the nonpartisan Congressional Research Service shows that even noncontroversial judicial appointments--those that ultimately got bipartisan support and easily passed the Senate--are having to wait longer for confirmation across the past four presidencies of both parties.
As Republicans note, Democrats set the stage for today's problems by filibustering George W. Bush's judicial nominees. Now the problem has grown worse in the Obama years, as Republicans turn the tables and bottle up Democratic nominations.
The study found that 35.7% of George W. Bush's noncontroversial circuit-court nominees had to wait more than 200 days for confirmation--up from 22.2% for Bill Clinton. During the Obama presidency, that percentage has soared to 63.6%. No Obama circuit-court nominee has been confirmed in less than 100 days.
What's more, previously only more-sensitive appeals-court nominations were filibustered; now it's also less-sensitive district-court nominations.
The Wall Street Journal applauded another anti-worker decision of the extremely conservative U.S. Court of Appeals for the D.C. Circuit and touted its escalating attacks on the National Labor Relations Board.
The D.C. Circuit is considered second only to the Supreme Court in importance because it has jurisdiction over the bulk of challenges to government action and regulations ranging from national security to environmental law. It is currently skewed to the far right, due to a highly successful court-packing effort by the Republican Party. The results have been predictably devastating for government protections that offend big business sensibilities.
The National Labor Relations Board (NLRB) - frequent bogeyman of the right - has been a victim of this ideological bias, and the WSJ highlighted the D.C. Circuit's radical decision invalidating the president's last two nominees to the NLRB when commentating on a more recent judicial "smackdown" of worker rights. From the WSJ:
[T]he D.C. Circuit Court of Appeals, ruling in National Association of Manufacturers v. National Labor Relations Board, struck down the NLRB's diktat that businesses put up pro-union posters in the workplace. That, the court said, violated employer free speech rights in place since Congress's 1947 Taft-Hartley Act. It got worse.
Before even getting to the heart of his opinion, Judge A. Raymond Randolph wrote, "Although the parties have not raised it, one issue needs to be resolved before we turn to the merits of the case." That "one issue" is of course the now-famous Noel Canning case, the D.C. Circuit's January opinion which held that President Obama's non-recess recess appointments to the NLRB were illegal, and thus hundreds of past and current NLRB rulings are illegitimate. While the poster rule was not affected by Canning, the appeals court felt the need to remind the NLRB of its current, weak status. Ouch.
The specific case that the WSJ used to attack the legitimacy of the NLRB in general, National Association of Manufacturers, is disturbing in its own right, if sadly typical of an appellate court that has proven to be hostile to regulations that seek to curb corporate excess. Utilizing a strained reading of the First Amendment, the D.C. Circuit held that a NLRB rule that required employers to display a notice informing workers of their rights under the National Labor Relations Act (NLRA) of 1935 impermissibly compelled employer speech.