Consider the following scenario: Congress passes an important economic regulation designed to address a major national problem over massive opposition from conservative and corporate interests. Defeated in the democratic process, these forces then launch a legal attack, using a novel theory to claim the law is unconstitutional. Right-wing media cheer the suit, claiming it is a fight for freedom.
Sound familiar? It should, given the unresolved fate of the Affordable Care Act, but this time the reform in the right's crosshairs is not health care. It's consumer financial protection. A new lawsuit and right-wing media campaign have taken aim at the Consumer Financial Protection Bureau (CFPB), created by the Dodd-Frank law in response to the 2008 financial market collapse. The purpose of CFPB is to "promote fairness and transparency for mortgages, credit cards, and other consumer financial products and services." Although the legal arguments made in the suit are questionable, the case should not be dismissed as harmless. The right-wing media's proven ability to move dubious legal claims into mainstream debate combined with a conservative federal judiciary sympathetic to corporate interests mean the CFPB suit bears close scrutiny.
The lawsuit alleges that CFPB and another entity, the Financial Stability Oversight Council (FSOC), which oversees the law's "too big to fail provisions," are unconstitutional because key provisions of Dodd-Frank are too vague and do not provide sufficient oversight of the agencies' actions. They also challenge President Obama's recess appointment of CFPB Director Richard Cordray following a Republican filibuster of his nomination.
Legal experts are already expressing skepticism on the suit's merits. Deepak Gupta, an appellate lawyer and former CFPB official, called the suit "more a political stunt than a serious legal challenge" and questioned whether the plaintiffs challenging the law have standing to do so. ("Standing" is a legal requirement that a party to a case be at least at risk of suffering a real harm from the action complained of.) A small community bank in Texas is a plaintiff in the case (along two conservative organizations), and an article in the American Banker questioned whether the bank is large enough to be subject to the provisions of which it complains.
From the June 26 edition of Fox News' Hannity:
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Since President Obama's assertion of executive privilege over a set of internal Department of Justice (DOJ) documents, Fox News "straight news" anchors have repeatedly suggested that the president is attempting to "have it both ways" by invoking the privilege while also maintaining his longstanding position that he was not involved in the authorization or management of the failed ATF Fast and Furious operation. At times they have continued to do so even after their colleagues have informed them that these positions are not inconsistent.
Both Gregg Jarrett and Jamie Colby, the guest hosts of Happening Now and America's Newsroom, respectively, have pushed this baseless idea - echoing GOP talking points - during this week's broadcasts. Although Colby and Jarrett have been corrected by their colleagues on-air for their mistaken claims, Jarrett's revival of the specious claim during yesterday's show demonstrates that the idea that Obama's routine use of executive privilege evidences something sinister is alive and well at Fox News.
From the June 25 edition of Fox News' Happening Now:
JARRETT: The president is on record as having said all along knew nothing about it, didn't deal with it, wasn't involved. And all of a sudden the president invokes executive privilege which suggests that there was some White House involvement. You can't have it both ways, can you?
From the June 26 edition of America's Newsroom:
COLBY: Can the president have it both ways, say that the White House had nothing to do with the Fast and Furious program, and at the same time exert executive privilege over documents that dealt with, as [White House press secretary] Jay Carney had said, the operation?
Jarrett aired out his idea about Obama even after he had been corrected by Fox News White House correspondent Ed Henry for making similar claims during the June 20 edition of Happening Now. During that show, Henry told Jarrett in plain terms that Obama's use of executive privilege "does not prove any sort of cover-up and it does not prove that the president was involved in Fast and Furious."
Colby was corrected in a more immediate fashion by conservative The Five co-host Andrea Tantaros who stated, "I will say this though, in fairness, the president does have a right to exert executive privilege in a deliberate process. In the [U.S. v.] Nixon ruling it said that it doesn't have to include the president or his advisors. It could include a decision that eventually will affect the president. Recommendations, deliberations, that kind of thing."
Today on Fox News' America Live, Megyn Kelly offered repeated tension-filled teases for an interview with a "former DOJ official" who she promised would explain how the White House "had to know" about the controversial tactics used in the ATF's failed Operation Fast and Furious and would provide "his take on what Mr. [Attorney General Eric] Holder likely knew and when he knew it." But Kelly's big get wasn't someone with any actual knowledge of the operation or its aftermath, but rather Andrew C. McCarthy, the resident anti-Obama conspiracy theorist at the right-wing National Review.
McCarthy's credentials to make broad claims about what the White House and senior DOJ officials would be limited even if his credibility was not; he served as an Assistant U.S. Attorney in New York, not at DOJ headquarters in Washington, DC, and left public service in 2003.
But McCarthy's credibility certainly is in question. While McCarthy first gained fame for prosecuting the 1993 World Trade Center bombing, in recent years he has become known for his viciously anti-Muslim rhetoric and adoption of conspiracy theories.
Obama's radicalism, beginning with his Alinski/ACORN/community organizer period, is a bottom-up socialism. This, I'd suggest, is why he fits comfortably with Ayers, who (especially now) is more Maoist than Stalinist. What Obama is about is infiltrating (and training others to infiltrate) bourgeois institutions in order to change them from within -- in essence, using the system to supplant the system. A key requirement of this stealthy approach (very consistent with talking vaporously about "change" but never getting more specific than absolutely necessary) is electability.
McCarthy has also:
From the June 25 edition of Current's Talking Liberally with Stephanie Miller:
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From the June 23 edition of Fox News' Fox & Friends Saturday:
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Since President Obama asserted executive privilege earlier this week over a set of Department of Justice internal documents, the National Rifle Association has been quick to claim that the president's action is proof at last for the organization's insane conspiracy theory that Operation Fast and Furious was actually designed as a nefarious plot against the Second Amendment.
But the NRA's "evidence" could not be more lacking, as the documents over which Obama asserted executive privilege were generated after the conclusion of the failed Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) operation. A June 19 letter sent from the Justice Department to Obama which asked the president assert his privilege clearly states that the request only covers documents "from after February 4, 2011 related to the Department's response to Congress." Fast and Furious was terminated in January 2011. The documents deal with how DOJ handled congressional inquiries into the program, not its authorization.
That NRA CEO Wayne LaPierre has not actually seen the documents in question did little to temper his belief, expressed on NRA News, that the contents of the privileged documents prove that he was right about the Obama administration all along.
LAPIERRE: There must be something in those papers that just really stinks that they would be willing to walk into this briar patch and bust this whole issue out in the open.
GINNY SIMONE, NRA NEWS HOST: Do you think just maybe it has to do with what the NRA, and many others, have been talking about from the start? That this was planned, that this was about advancing an anti-gun agenda that this president had? Your thoughts?
LAPIERRE: Well my thoughts are that this was an attack on the Second Amendment of the United States Constitution. That that's what Fast and Furious really was about. The fact is that's what they are trying to hide. That's what I believe is in these papers that they don't want out, is proof of that.
The president is trying to fog the issue. He's trying to say "I'm not attacking the Second Amendment." I believe what's in these papers is proof that this administration was attacking the Second Amendment. They knew exactly what they were doing. This was about putting these guns down there in Mexico and then why they found them at crime scenes going, "Aha, we need more gun laws in the United States." And that's what I believe is in these papers. And that's why I believe the president has joined with the attorney general to cover this whole thing up.
The Roberts Court's five Republican-appointed justices invented a new rule that threatens to greatly weaken public employee unions in yesterday's Knox v. SEIU decision. Reaching out to decide an issue that the parties to the case never argued, these justices instead engaged in "radical policy-making" using an argument drawn from a friend of the court brief submitted by the Cato Institute and a coalition of other right-wing organizations. As the cheerleading for the decision by right-wing institutions and blogs makes clear, the decision is much more likely to be the first battle in a new legal war on public employee rights than a mere reworking of technical legal rules.
In the case, the five conservative justices turned precedent on its head to severely limit the ability of public employee unions to spend fees from employees they represent to fight anti-worker political battles. The limits adopted by the conservative justices went beyond what even the parties in the case had requested.
The Knox decision is evidence that the Court's Republican-appointed conservative majority has decided to inject the Court into the national debate on workers' rights, according to both Justice Stephen Breyer, who dissented in the case, and Steven Hayward of the right-wing Powerline blog. Justice Breyer noted that states have taken varied approaches to nonmember rights in union workplaces, and that the political debate on this subject, especially with respect to public employees, is "intense." Now, he observed, the conservative justices have not only entered the debate, but apparently "decide[d] that the Constitution resolves it." Powerline's Hayward agrees, writing that the Knox decision's effect will be "similar to the Scott Walker reforms in Wisconsin that have devastated public employee union political capacity there. Step by step."
Constitutional scholar Garrett Epps calls Knox "the Court's Scott Walker Moment."
Last week Washington Times columnist and National Rifle Association board member Ted Nugent used opinion pieces to unleash racial tirades against both the African-American and Latino communities.
The unemployment rate among Latinos stands at 11 percent, which is much higher than the national average. Mr. Romney must continue to remind Latinos that improving the economy is key to improving their livelihood. He should tell them that Mr. Obama's economic policies are a complete disaster and that the president has failed them miserably.
Mr. Romney should continue to press for education reform, and remind Latino voters that education is vital to success. He should illustrate the importance that Americans of Asia-Pacific descent place on education and how fast their children move into the middle class. It doesn't have to be an Asian thing.
He should praise Latinos for their strong work ethic and remind them that this work ethic coupled with an education is an unstoppable combination that will catapult them into the middle class and beyond.
Then in a June 15 column for Newsmax Nugent claimed that "overwhelming majority of blacks are slaughtered by other black hoodlums":
I do agree with Mr. [Bill] Cosby that the Trayvon Martin shooting has nothing to do with race. Only empty-headed racists such as our black-panther loving Department of Justice believe otherwise.
Race does, however, play a significant role in the percentage of black Americans who are killed and wounded every single day in America.
The overwhelming majority of blacks are slaughtered by other black hoodlums, the overwhelming majority of whom are involved in gangs and drugs -- you know, that "victimless crime" thing.
Mr. Cosby is right about this tragedy. These black punks do use guns to solve their gang-related differences. None of them carry or use their guns legally.
Media Matters has previously noted that Nugent has made inflammatory comments on a number of topics, particularly race.
From the June 21 edition of The Rush Limbaugh Show:
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From the June 21 edition of The Rush Limbaugh Show:
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In an appearance today on America's Newsroom, Fox News contributor Karl Rove expressed concern that President Obama's assertion of executive privilege over a set of Department of Justice internal documents was a novel expansion of the doctrine. The former senior advisor to President George W. Bush was ill-equipped to make this claim, as Bush invoked the privilege under similar circumstances while Rove was his top political advisor.
KARL ROVE, FOX NEWS CONTRIBUTOR: It's one thing to exert executive privilege over the actions of the President, and his aides, and the White House. It's another thing to exercise executive privilege with regard to aCabinet official, seemingly in a matter that according to the President up until now, had no connections with, no contact with, no communications with the White House. So I'm a little bit concerned about it. I think it's an overreach.
ROVE: This is a very long reach. I mean basically if the President is allowed to take the privilege that goes to the Executive Office of the President and extend it to a Cabinet department, then he can extend it to any branch of the government for any matter, even if there was no presidential or White House involvement. And I'm not certain that that's what the Founders thought about when they talked about executive privilege.
Rove either forgot that the first time Bush invoked executive privilege it was in regards to Justice Department internal documents, or was being deliberately deceptive. In December 2001 the New York Times reported:
President Bush invoked executive privilege today for the first time in his administration to block a Congressional committee trying to review documents about a decades-long scandal involving F.B.I. misuse of mob informants in Boston. His order also denied the committee access to internal Justice Department deliberations about President Bill Clinton's fund-raising tactics.
Executive privilege is really an umbrella concept that encompasses a variety of privileges. History's most famous claim of executive privilege -- President Richard Nixon's unsuccessful attempt to withhold the "Watergate tapes" -- was an example of "presidential privacy" privilege. That privilege covers executive communications when the president is involved.
The executive branch, however, historically claims a much broader privilege, the so-called "deliberative privilege."
Deliberative privilege aims to protect documents generated anywhere in the executive branch that embody only the executive's internal deliberations, not final policy decisions. The current dispute involves "deliberative privilege."
During his appearance, Rove also ran with the latest right-wing conspiracy, suggesting that Obama's assertion of executive privilege indicates that he was involved in Fast and Furious while the operation was ongoing. Media Matters has previously noted that these claims are false. The president asserted executive privilege only over documents created after the failed operation was ended.
In his latest column, WND editor Joseph Farah takes the right-wing media's misreading of President Obama's declaration of executive privilege with regard to some documents concerning the ATF's failed Operation Fast and Furious sought by congressional Republicans to its "logical" conclusion: President Obama has declared himself, "quite possibly, an accessory to murder." From the piece:
Now understand what this means. Obama cannot claim executive privilege for any member of his administration. He can only do so for himself and his inner circle of advisers, and should never do so unless it's a matter of national security.
What Obama did, in apparent desperation, was to expose his own personal complicity in this scandal, making him, quite possibly, an accessory to murder.
Can you imagine how big this scandal is and how far it reaches for the administration to take such a gamble?
Farah's point appears to be that by claiming executive privilege for these documents, Obama has acknowledged personal involvement in the authorization of Fast and Furious, and thus, since guns trafficked to Mexico through that program were used to kill people, he could be an "accessory" to those murders.
This doesn't make any sense.
First of all, the documents in question don't deal with the authorization of Operation Fast and Furious, but rather the administration's response to congressional inquiries in response to that operation. Even if Obama was directly involved in that response, it would in no way indicate his "personal complicity in" the operation.
But the administration has not claimed executive privilege on the basis of the president's personal involvement. Which brings us to another problem with Farah's column: his statement that "Obama cannot claim executive privilege for any member of his administration" is simply not true.
As Ohio State University law professor Peter Shane wrote at CNN.com this morning, the Obama administration has claimed deliberative privilege with regard to the documents in question, which "aims to protect documents generated anywhere in the executive branch that embody only the executive's internal deliberations, not final policy decisions."
Every year, the progressive group Campaign for America's Future hosts a conference called Take Back the American Dream. At this year's event, held this week in Washington, MSNBC host Melissa Harris-Perry gave a speech about the "choices that we, as ordinary citizens and Americans, made" over the past decade. One part of the speech dealt with the effects of the September 11 attacks on policymaking and how fear motivated many of the actions that the government took.
On his June 20 Fox News show, Bill O'Reilly attacked Harris-Perry over this section of the speech, claiming she said that "we, the United States, are racists because we defended ourselves against radical Islam after 9/11."
It is a huge stretch to read that into what she said.
From the June 20 edition of MSNBC's The Rachel Maddow Show:
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