Fox News is leading the right-wing media chorus baselessly claiming Dzhokhar Tsarnaev, the apparent bomber in the Boston Marathon attacks, should be indefinitely detained as an "enemy combatant," even though legal experts maintain it is unlikely he qualifies for this designation.
Militarily detaining U.S. citizens apprehended in this country as "enemy combatants" for acts of terror is extremely rare and constitutionally questionable. Former President George W. Bush transferred the last U.S. citizen held in such a fashion to federal criminal court rather than have the Supreme Court rule on the matter. President Barack Obama, while not explicitly disavowing his authority to indefinitely detain U.S. citizens as "enemy combatants," has publicly determined the practice to be unwise and contrary to American tradition and law.
Despite the legal uncertainty of the practice, Fox News host Sean Hannity declared that Tsarnaev should be held as an "enemy combatant" because "the evidence is obviously out there." From an interview with right-wing commentator Ann Coulter on the April 22 edition of Hannity:
National Review Online misrepresented civil rights precedent to attack the Environmental Protection Agency (EPA), continuing right-wing media's campaign against the validity of a long-standing civil rights doctrine that prohibits certain racial discrimination.
Right-wing media have repeatedly stated their intense dislike of the effective civil rights doctrine of "disparate impact" analysis, a type of anti-discrimination protection that can prohibit seemingly neutral law and policy that has a disproportionate effect on certain groups. For example, its use in the context of fair housing law on behalf of victims of color - unanimously recognized as legal by appellate courts - has been consistently attacked by both NRO and the Wall Street Journal, an attack that has shifted to the use of the doctrine by Assistant Attorney General Thomas Perez, current Labor Secretary nominee.
In addition to fair housing, in which the doctrine has resulted in significant settlements from banks that engaged in predatory loaning and related discrimination, compliance with disparate impact law has also been identified as a way for the EPA to ameliorate environmental actions that have a disproportionate effect on communities of color. This "environmental justice" approach was recently criticized by NRO as "wacky," dubious," and "inconsistent" with Title VI of the 1964 Civil Rights Act:
[T]he Obama administration has taken the already-wacky concept of "environmental justice" to even-wackier extremes. The basic idea here is that whether pollution is illegal or not can depend on whether its possible victims reflect a politically correct racial balance.
Now EPA has made it "significantly easier for environmental groups to establish" a violation under this dubious approach to the law....And, what's still more, the whole approach is inconsistent with the underlying statute involved, Title VI of the 1964 Civil Rights Act.
Right-wing media have a long history of leveling charges of anti-white bias at President Obama's nominees and appointees of color, smears that have now formed the basis of Republican attacks on Labor Secretary nominee Thomas E. Perez.
Wall Street Journal columnist Allysia Finley smeared "legal legend" federal Judge Thelton Henderson, the Department of Justice's first African-American civil rights attorney, and ignored Supreme Court precedent in order to attack a recent court ruling that re-affirmed California's prisons are unconstitutionally overcrowded.
On April 11, a three judge panel issued a "blistering" opinion that denied California's most recent request to be released from its court-ordered obligations to reduce unconstitutional overcrowding in its prison system, and warned the state it would be found in contempt if it continued to delay its compliance. The panel included Henderson, the judge who the state deferred to in the original class-action suit. From the WSJ, which characterized Judge Henderson as "dangerous to the constitutional system of checks and balances," Finley wrote:
Judge Henderson is perhaps best known for his infamous decision in 1996 to block California's Prop. 209, a voter approved-initiative banning affirmative action in state government and institutions, on the pretext that the ballot measure was discriminatory and likely unconstitutional.
Judge Henderson boasted to the San Jose Mercury last year that the Prop. 209 opinion was "probably as careful a decision as I've ever drawn up."
That sets a low bar for assessing a 2006 Henderson decision which held that sub-standard medical care in California prisons violated the 8th amendment's prohibition against cruel and unusual punishment.
When [Governor Jerry] Brown suggested he would appeal the panel's court order to the Supreme Court, Judge Henderson and his liberal peers on the panel (also appointed by Mr. [Jimmy] Carter) threatened to hold him in contempt and dun the state.
Mr. Brown has in the past favored using the courts to redress social inequities, but perhaps his judicial thinking will evolve after getting mugged by liberal judges and the plaintiffs bar.
The Los Angeles Times editorial board misleadingly suggested a proposed California anti-discrimination bill that would affect the Boy Scouts of America because of its anti-LGBT policy was not only unfair, but unconstitutional.
On April 10, the Los Angeles Times announced it was opposed to a new California bill that would deny a state sales and use tax exemption to any public charity youth organization that discriminates on the basis of "gender identity, race, sexual orientation, nationality, religion, or religious affiliation," thereby aligning the conditions of this exemption with other state anti-discrimination law and policy. Because the government subsidy at issue is used by the Boy Scouts of America, the LAT correctly observed that its policy of discrimination on the basis of gender identity and sexual orientation would run afoul of the proposed Youth Equality Act. The editorial board questioned whether the Boy Scouts "should be singled out from other nonprofits" and suggested this was inconsistent with Supreme Court precedent that allows the Boy Scouts to ban LGBT members because of the group's "expressive message." From the editorial:
Under [The Youth Equality Act (SB 323)], carried by Sen. Ricardo Lara (D-Bell Gardens), the Boy Scouts of America (though unnamed in the bill) would have to pay state sales taxes as well as taxes on any money it raised in California -- such as the proceeds from hawking caramel corn, Christmas trees or anything else -- unless it admitted boys who are gay or transgender.
The aims of the bill are understandable and even laudable. But the Scouts' membership policy has been upheld by the U.S. Supreme Court, which in 2000 ruled 5 to 4 that the ban on gay members is protected under the Constitution because the group's opposition to homosexuality is part of its "expressive message."
We yearn for the day when the closed-minded leaders of the Boy Scouts join the 21st century, but we also worry about the implications of SB 323. If legislators can go after the Scouts for engaging in legal (though offensive) behavior, what group will they go after next?
Wall Street Journal columnist and editorial board member Kimberley Strassel misrepresented the win-loss record of the Environmental Protection Agency (EPA) in court in order to suggest the Obama administration's environmental rulemaking is frequently illegal.
In an April 9 column, Strassel attempted to smear President Obama's nominee for EPA Administrator, the highly qualified and widely regarded Gina McCarthy, with the accusation that she shared blame for an alleged "embarrassing string of [legal] defeats" suffered by the Obama administration while serving as the senior EPA official in charge of regulating air pollution. From the WSJ:
[C]ritics have also started to take note of the embarrassing string of defeats the courts have recently dealt the agency regarding rules it issued in Mr. Obama's first term. Those judicial slapdowns are making a mockery of former Obama EPA Administrator Lisa Jackson's promise in 2009 to restore the agency's "stature" with rulemaking that "stands up in court."
This past year alone has proven a banner year for EPA rebukes[.]
Mrs. McCarthy--who has spent four years as EPA Assistant Administrator for the Office of Air and Radiation--was nominated precisely because she shares Mrs. Jackson's aggressive view of the EPA's authority. With the administration now looking to push the EPA boundaries even further on climate, expect senators to grill Mrs. McCarthy on why she believes those coming rulemaking procedures will fare any better in court. A number of senators are particularly focused on this question, since it is their authority Mr. Obama is usurping in having the EPA unilaterally implement a climate program.
But Strassel - like influential House Republicans - misrepresents the record of the Obama EPA in court, especially in the area of Clean Air Act rulemaking, which McCarthy oversaw. As opposed to the win-loss record of the Republican EPA under George W. Bush, the Obama administration has been highly successful in defending its Clean Air Act actions in court.
Wall Street Journal editorial board member James Taranto downplayed a new Kansas bill that significantly restricts reproductive rights and ignored the consequences of a "personhood" provision that declares life begins "at fertilization."
Writing in reference to articles by the Associated Press and Reuters that describe the "sweeping" Kansas bill, reported as "one of the most restrictive abortion laws in the nation," Taranto instead characterized the restrictions in the bill as "modest" and mocked reproductive rights advocates who are raising alarm about the bill's thinly-veiled "personhood" provision. From the WSJ editorial:
[A]bortion proponents are especially exercised about a provision "declaring that life begins 'at fertilization' "
Holly Weatherford, another ACLUer, frets that the stipulation could "be used as a tool of harassment."
Hey Holly, did you know the word "gullible" isn't in the dictionary? Just kidding, it's there, as we noted in October. You know what else is there? "Fertilization." Here's Merriam-Webster's definition 2(b), the relevant one for this discussion: "the process of union of two gametes whereby the somatic chromosome number is restored and the development of a new individual is initiated."
This is basic reproductive biology. The assertion that life begins at fertilization is a tautology. [Deputy director of the ACLU Reproductive Freedom Project Talcott] Camp and Weatherford might as well be objecting to a legislative finding that A is A or 2+2=4 or a tautology is true by definition.
If your goal is to maximize sexual freedom, then it's expedient to answer the abortion question in the most permissive way possible. We suppose in that case simply defying science and logic, as Camp and Weatherford do, is a tempting shortcut. But when your position depends on denying a tautology, you may find it a difficult one to defend.
Evening network news shows have largely ignored the filibuster brinkmanship of Senate Republicans in blocking President Obama's judicial nominees, as well as the resulting vacancy crisis at the important D.C. Circuit Court of Appeals.
The D.C. Circuit Court of Appeals is considered the most important court in the country after the Supreme Court, in part because many of its judges go on to become justices, and in part because it is by far the most powerful appellate check on the federal government. Since it is required to examine challenges to a wide range of federal action - from environmental regulations to consumer protections to voting rights - it has the ability to uphold or strike down law on a national level.
However, as another victim of relentless Republican filibustering and the ensuing inability to hold up-or-down votes on the president's nominees to the federal courts, the D.C. Circuit currently has nearly 40 percent of its judgeships vacant. A Nexis search of evening network news shows in the past six months indicates that this problem has been ignored by ABC, CBS, and NBC.
Fox News host Bill O' Reilly suggested President Obama is to blame for the decades-long high unemployment rate among African-Americans, ignoring other factors such as institutionalized racism, even while acknowledging his employers have used affirmative action programs.
A Wall Street Journal op-ed acknowledged the constitutionality of race-conscious law, breaking from the traditional narrative of right-wing media that touts a non-existent "colorblind" Constitution, but incorrectly described the issues in a new Supreme Court case that will examine state bans on affirmative action.
In the case Schuette v. Coalition to Defend Affirmative Action, the Supreme Court has decided to examine whether amendments to state constitutions that ban race-conscious equal opportunity programs violate the 14th Amendment of the U.S. Constitution by impermissibly rigging a state's political process. Contrary to editorial board member James Taranto's description of the case in a recent WSJ op-ed, Schuette is not properly understood as "an opportunity to revist" the constitutionality of affirmative action in higher education admission policies.
Grutter v. Bollinger, which reaffirmed the permissible use of race-conscious admissions in furtherance of the educational benefits of diversity, is indeed at risk in the as-of-yet unreleased decision of Fisher v. University of Texas. Schuette, on the other hand, examines what political means of prohibiting race-conscious admissions are acceptable under the U.S. Constitution and what means unconstitutionally manipulate state political processes to the detriment of persons of color and others who support the use of race-conscious affirmative action.