Media figures are criticizing President Obama for the current diplomatic re-engagement with Cuba by falsely suggesting that taking executive action to ease some travel and trade restrictions is legally questionable. In reality, the embargo is a result of decades of executive actions under both Republican and Democratic administrations, and Congress has explicitly reaffirmed executive discretion of the type the president is taking to modify U.S. relations with Cuba.
From the December 17 edition of Fox News' The O'Reilly Factor:
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Fox News host Heather Nauert is calling a bizarre federal court opinion that found President Obama's executive action on immigration unconstitutional a "pretty simple" decision, despite the fact that even conservative legal experts have called it a stretch.
On the December 17 edition of Happening Now, Nauert turned to legal experts Robert Bianchi and Brian Claypool to discuss Judge Arthur Schwab's lower court ruling that, surprisingly, evaluated the constitutionality of the president's recent decision to exercise prosecutorial discretion and defer deportation for certain undocumented immigrants. Both Bianchi and Claypool explained that the judge's ruling had "no legal significance" and "doesn't make sense," but Nauert disagreed. Other conservative legal experts are also questioning how the judge came to this conclusion on an unrelated matter of civil immigration law, given the fact that neither party in this criminal case contested the constitutionality of Obama's executive order.
Although Nauert admitted that she is "not a lawyer," she nevertheless argued that the judge's decision "seems pretty simple":
But the ruling from Judge Schwab, who has seen his fair share of controversy with respect to his legal judgment since being appointed to the bench, wasn't quite as "simple" as Nauert insisted.
Legal experts across the political spectrum agree that the president has broad authority to exercise prosecutorial discretion when it comes to deportation proceedings, which the Supreme Court affirmed as recently as 2012. Despite right-wing media's unwillingness to accept the idea that Obama's order is lawful, immigration experts have noted that the president is not only acting "within the legal authority of the executive branch of the government of the United States" but is also authorized by federal statute to provide temporary administrative relief of this type, as presidents of both parties have done for decades.
Moreover, according to Jonathan Adler, a law professor and contributor for The Washington Post's libertarian Volokh Conspiracy blog, Judge Schwab overstepped his own authority in ruling on the constitutionality of Obama's executive order. As Adler explained, "it is quite unusual for a district court to reach this sort of constitutional issue in this sort of case":
Indeed, Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President's actions. Based upon the procedural history recounted in the opinion, it appears the court requested briefing on the applicability of the new immigration policies on its own order. That is, the issue was not initially raised by the defendant in his own defense. As a result of the court's decision, however, the defendant now has the option of withdrawing his guilty plea and potentially seeking deferral of his deportation under the new policy.
On the merits, I understand the concerns that motivate Judge Schwab's reasoning, but I am not persuaded. First, it is important to note that the executive branch has exercised a substantial degree of discretion in implementing and enforcing immigration law for decades. Work permits have been issued in conjunction with deferred action for at least forty years. President Obama's actions are broader in scope, but not clearly different in kind from what his predecessors have done and to which Congress has acquiesced.
Adler's conservative colleagues at the Volokh Conspiracy agreed with this assessment, with law professors Ilya Somin and Orin Kerr calling it "poorly reasoned" with "serious flaws," and "exceedingly strange," respectively. Somin elaborated on how radical the opinion is, noting that "[i]f the Supreme Court were to adopt Judge Schwab's reasoning, federal law enforcement agencies would be barred from issuing general systematic guidelines about how their officials should exercise prosecutorial discretion. The exercise of discretion would then become arbitrary and capricious. Alternatively, perhaps they could still follow systematic policies, so long as those policies were not formally declared and announced to the public, as the president's order was. Neither possibility is particularly attractive, and neither is required by the Constitution."
On the other hand, Judge Schwab does have the support of Fox News host Sean Hannity, who crowed that the opinion "could've been written by me."
After relentlessly promoting several right-wing legal challenges to the Affordable Care Act (ACA) for over a year, The Wall Street Journal seems to have just now realized that the cases' potential to deny affordable health care coverage to millions of Americans is a catastrophe for the GOP -- even as it continues to downplay the human costs.
On November 7, the Supreme Court announced it would hear King v. Burwell, a lawsuit challenging the legality of the tax subsidies that the IRS provides to consumers who purchase health insurance over the federal exchange. The plaintiffs in King argue that, because one section of the ACA states that subsidies are available to consumers who enrolled "through an Exchange established by the State," the federal government isn't allowed to offer credits to people who live in states that refused to set up their own insurance exchanges.
This extremely literal reading of the ACA ignores other parts of the law that indicate the exact opposite and the overall context of the bill as well as the legislative history of its passage, but conservative media have nevertheless been boosters for the challenge. The Journal has been particularly supportive of King and related cases, suggesting that it "ought to be a straightforward matter of statutory construction" to rule in favor of the challengers. The Journal has rarely, if ever, acknowledged the human cost that would come with a Supreme Court decision striking down the availability of tax subsidies -- but in a recent editorial, the Journal seems to have discovered the devastating cost of its anti-ACA advocacy, at least for Republicans:
The time to define a strategy is soon, as King v. Burwell will be heard in March with a ruling likely in June. As a matter of ordinary statutory construction, the Court should find that when the law limited subsidies to insurance exchanges established by states, that does not include the 36 states where the feds run exchanges.
But in that event one result would be an immediate refugee crisis. Of the 5.4 million consumers on federal exchanges, some 87% drew subsidies in 2014, according to a Rand Corporation analysis.
In the GOP debate about how to respond, one side would prefer to wait for the judicial rapture to arrive. ObamaCare has never been popular, they argue, and if the subsidy foundation of the law is undermined, the rest will collapse of its own weight. And because ObamaCare's mandates and taxes are conditioned on the subsidies, more people will be helped than harmed if they are withdrawn.
This group is right about ObamaCare in the abstract, but the Treasury must comply with court orders 25 days after they're issued and such an abrupt policy shift will be a mess. The 17% of U.S. GDP that is health care has spent five years reorganizing to accommodate ObamaCare's dictates, and the watch-it-burn caucus is underestimating the economic, political and media blowback.
The White House could have avoided the problem by obeying its own law and not passing out illegal subsidies, but the public may not notice the difference once the press corps discovers a cancer patient or two who can't afford her ObamaCare plan without taxpayer support. This threatens to replay the "if you like your doctor, you can keep your doctor" controversy in reverse, with Republicans accused of denying care to the sick.
The National Rifle Association's news show Cam & Company hosted an attorney to attack as "frivolous" and "irresponsible" a lawsuit filed against NRA corporate donor Bushmaster for making the gun used in the Sandy Hook Elementary School massacre.
On December 13, several Newtown families sued Bushmaster under a "negligent entrustment" theory for the gun manufacturer's role in putting an assault weapon into the hands of a gunman who killed 20 children and six educators at Sandy Hook Elementary School on December 14, 2012. The lawsuit also named Bushmaster's parent company, Remington Arms Company, as well as the seller and the distributor of the gun.
Steve Halbrook, an attorney who writes about the Second Amendment and other gun issues, joined Cam & Company on December 16 to repeatedly suggest that the lawsuit was "frivolous," call for the complaint to be dismissed, and argue that Bushmaster may be entitled to compensation for attorney's fees. Halbrook is also the author of a book that advances the ahistorical claim that gun restrictions were responsible for Hitler's rise to power and served as counsel for the NRA in the landmark Supreme Court case McDonald v. Chicago.)
During his appearance, Halbrook said that the plaintiffs -- who are family members of teachers and children who were killed at Newtown, as well as one survivor of the attack -- and their lawyers were "extremely irresponsible" to file the lawsuit.
Fox News used the Sydney, Australia hostage situation to question whether Australia's strict gun laws should be loosened, but offered no commentary on Pennsylvania's relatively looser gun laws in their reports the same day when a man went on a shooting rampage, killing six. Americans are murdered with guns at a rate more than ten times greater than Australians.
On December 15, Fox News heavily reported on a hostage situation in a Sydney, Australia chocolate shop. A man, who according to authorities had "a long history of violent crime, infatuation with extremism and mental instability," used a shotgun to hold café patrons hostage for 16 hours. After gunfire was heard police stormed the shop. The hostage-taker and two hostages were killed. One hostage was reportedly killed while trying to disarm the hostage-taker, while it is unclear if the other one was shot by the hostage taker or caught in the crossfire.
As Fox reported on developments out of Sydney, the conservative network also provided updates from Pennsylvania where Bradley William Stone allegedly went on a shooting rampage, killing his ex-wife and five of his former in-laws. One former in-law was wounded. Police are currently searching for Stone. (UPDATE: Stone has been found dead, reportedly of self-inflicted wounds.)
Tellingly, Fox News used the Sydney incident to raise questions about Australia's gun law system, while raising no such questions about looser gun laws in the United States during December 15 and December 16 mentions of the Pennsylvania spree killing on Fox programs Fox & Friends, Fox & Friends First, The Five, On the Record, America's News Headquarters, Special Report with Bret Baier, Shepard Smith Reporting, The Real Story with Gretchen Carlson, or America's Newsroom.
From the December 16 edition of Fox News' Fox & Friends:
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From the December 12 edition of MSNBC's The Ed Show:
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From the December 12 edition of Fox News' Fox & Friends:
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Conservative activist Gavin Seim, the organizer of a December 13 protest against Washington state's new background check law, is an anti-government extremist who participated in the standoff at Cliven Bundy's Nevada ranch and defended the rancher's racist comments. He has also suggested a violent revolution may be necessary if he is not satisfied with the outcome of his protest.
Media outlets are heavily touting a poll from Pew Research Center supposedly showing "growing public support for gun rights," but Pew's polling question is flawed because it presents a false choice between regulating gun ownership and protecting gun rights. In response to the Pew poll, a prominent gun violence researcher said, "I could not think of a worse way to ask questions about public opinions about gun policies."
On December 10, Pew released the results of a periodic survey that asks respondents whether it is more important to "control gun ownership" or to "protect the right of Americans to own guns." Since January 2013, support for the gun rights answer is up seven points to 52 percent, while support for regulating guns has fallen five points to 46 percent.
According to experts, the question is flawed because respondents have to pick between support for gun regulation or gun rights, as if those premises were mutually exclusive.
Academics from a top gun violence research program are criticizing the wording of Pew's polling question. In a statement, Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research, said, "I could not think of a worse way to ask questions about public opinions about gun policies."
From the December 10 edition of Fox News' Hannity:
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Conservative media outlets both nationally and in California are campaigning against Gov. Jerry Brown's nominees for the state judiciary, attacking their political leanings and complaining about their "race, gender, or sexual orientation," in a baseless effort to suggest the nominees are unqualified and selected "strictly for reasons of affirmative action."
The recent round of attacks were given a national platform in a November 26 Wall Street Journal editorial, which, while questioning the lack of judicial experience of some of Brown's nominees, largely focused on whether the ideological leanings of Brown's nominees are similar to his own. The California Supreme Court was previously dominated by judges appointed under Republican governors, but Brown's picks, Journal columnist Allysia Finley complained, "have tilted the court left."
California media were more specific, and honed in on whether the nominees were from "the right racial groups," as San Francisco Chronicle editorial writer Marshall Kilduff put it. Ignoring the fact that multiple high court jurists had not previously served as judges before their appointments (such as current Supreme Court Justice Elena Kagan and former Chief Justice and California governor Earl Warren), Kilduff also criticized Brown's nominees for a lack of experience with "sleepy jurors." But as The Los Angeles Times reported, Brown has no flat rule against trial or appellate experience with respect to his nominees -- similar to his choice for the San-Francisco-based appeals court, "Brown's picks for the Los Angeles-based appeals court were all sitting judges, suggesting he considers bench experience valuable."
The criticism of Brown's attempts to diversify the bench got uglier, however, after the Journal weighed in. The Metropolitan News-Enterprise, a Los Angeles legal newspaper, recently ran a column from Roger M. Grace, flatly concluding Brown's nominees were "bereft of credentials," and were "apt to be named ... strictly for reasons of affirmative action":
Surely, race should not be, ever, a factor in choosing judges.
It simply doesn't relate to a person's capacity to serve in a judicial role.
Yet, the reality is that to Jerry Brown, being a non-white is a huge plus for a seeker of a judgeship.
And so we return to young [Lamar Baker, former US Deputy Assistant Attorney General]. He is almost certain to be appointed to the state's intermediate appellate court--and would probably be under consideration for the Supreme Court were there any more vacancies. He, like [former U.S. deputy attorney general and current California Supreme Court nominee Leondra] Kruger, is an African American.
He has all the qualities that Brown is looking for in a justice.
And what he lacks -- the know-how and wisdom that can only be derived from experience -- is of no concern to the man once known as "Governor Moonbeam."
He's not called that anymore. But the lunar influences on him are as strong as ever they were.
Also apt to be named to the appeals court, strictly for reasons of affirmative action, is Los Angeles Superior Court Judge Luis Lavin. He's openly gay. That, and his law degree from Harvard, are probably enough to cinch an appointment -- unless the governor views him as being too old (he's 55) or holds against him his judicial experience.
From what I've seen, Lavin is a result-oriented jurist, lacking in intellectual honesty. But that sort of thing would, of course, be of no interest to Brown.
The Supreme Court will soon hear King v. Burwell, a challenge to tax credits for consumers who live in states that refused to set up their own health care exchanges under the Affordable Care Act (ACA) and instead relied on the federal version. Right-wing media have repeatedly insisted that the ACA can only have been written to deny Americans affordable health insurance, but experts call this argument "political activism masquerading as statutory restraint."