A new study from the Consumer Financial Protection Bureau (CFPB) has found that "forced arbitration" clauses in contracts for cellphones, credit cards, and car loans -- which typically include bans on class actions -- are highly beneficial to large corporations and provide little relief to wronged consumers. The study helps debunk the right-wing media's claims that arbitration is a cost-effective and worthy alternative to the courts.
Conservative media outlets have repeatedly claimed that class actions unfairly penalize large corporations while lining the pockets of trial lawyers -- all while ignoring the fact that class-action lawsuits are still the best way for injured consumers to pursue justice and the most efficient way for companies to handle legal claims.
Instead of class-action lawsuits, right-wing media prefer forced arbitration clauses, which require injured consumers to settle legal claims in expensive arbitration proceedings instead of in court. These clauses have become increasingly popular with banks, private student-loan providers, and the payday loan industry, and they are hidden in the fine print of tens of millions of "take it or leave it" contracts. According to Public Citizen, a consumer advocacy group, most Americans don't know that they're subject to the clauses, and the cost of initiating arbitration proceedings is so high that "most individuals covered by an arbitration clause cannot afford these costs and are forced to drop their cases." These attempts to allow corporate immunity to supersede federal rights are getting worse and can found in employment contracts, as well. As Supreme Court Justice Elena Kagan warned the last time the court's conservative justices permitted these types of "unconscionable agreements":
Here is the nutshell version of this case, unfortunately obscured in the Court's decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract's arbitration clause prevents him from doing so. That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool's errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability -- even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.
And here is the nutshell version of today's opinion, admirably flaunted rather than camouflaged: Too darn bad.
The Wall Street Journal called on Supreme Court justices to "vindicate federalism" by striking down health care subsidies in the Affordable Care Act (ACA), but ignored the proven economic consequences such a ruling would have on the states, which has led the court in the past to refuse to inflict such harm because of those same federalist concerns.
At issue in the latest health care challenge, King v. Burwell, is whether ACA subsidies are available over the federal health care exchange website, which operates in 37 states. During oral arguments, Justice Anthony Kennedy expressed concern that the challengers' interpretation of the law -- which would deny subsidies to upwards of eight million Americans -- might be unconstitutionally coercive to those states that declined to set up their own exchange. This coercion argument was at the heart of the last ACA challenge in 2012, when the court ruled that it was unconstitutional for the federal government to threaten to deny money to states that refused to expand Medicaid, because the economic consequences would have been devastating.
In a March 5 editorial, the Journal argued that denying federal subsidies to states that refused to set up exchanges "is not the same" as denying federal funds to states that refuse to accept the Medicaid expansion. But in a brief to the Supreme Court, the states who have had to make both choices disagreed, and pointed out that the King challengers themselves had admitted this type of coercion was the same:
In [the 2012 health care challenge], the Court explained that cutting off all Medicaid funding to States that declined Medicaid expansion constituted "much more than relatively mild encouragement -- it is a gun to the head." It "crossed the line distinguishing encouragement from coercion," serving "no purpose other than to force unwilling States" to comply. In the court of appeals, Petitioners argued that the scheme they attribute to Congress was "the same" in its coercive nature as one invalidated in . In this Court, Petitioners prefer understatement, saying that "Congress could quite reasonably believe that elected state officials would not want to explain to voters that they had deprived them of billions of dollars by failing to establish an Exchange." Either way, it is a novel kind of pressure to threaten to injure a State's citizens and to destroy its insurance markets in order to force State-government officials to implement a federal program.
To avoid the comparison, the Journal also downplayed the likely destabilization of the insurance markets in the event the federal tax credits are struck down, echoing a false claim from the King challengers' lawyer, Michael Carvin, who argued in court that there was "not a scintilla of evidence" that the health insurance market would enter a death spiral without the current subsidies. The Journal editorial argued that "in the 1980s and 1990s, eight states including Kentucky, Washington and New York imposed the same rules -- without subsidies. In other words, the regulations are supposedly valuable by themselves to achieve liberal policy goals."
Conservative Supreme Court Justice Antonin Scalia is adopting right-wing media's talking points yet again, this time implausibly claiming that the Republican-controlled "Congress would act" with an alternative if the court strikes down the Affordable Care Act's health insurance tax credits.
On March 4, the justices heard King v. Burwell, a case that could make insurance subsidies unavailable to some Americans. At issue in the suit is whether a subclause in the law that says subsidies can be disbursed through "Exchanges established by the State" prohibits the IRS from providing tax credits to consumers who bought insurance over the federal exchange. Despite the fact that experts agree that the law clearly makes the subsidies available to everyone, right-wing media have called on the Supreme Court to rule otherwise.
Health and Human Services Secretary Sylvia Burwell has repeatedly said that there is no contingency plan in the event of an adverse decision in King, and that there is no fix the administration can make to remedy the problem without inviting further legal challenges. Right-wing media jumped at Burwell's comments, criticizing the administration for not having a back-up plan while promoting a series of Republican "alternatives" should the court ultimately strike the subsidies down.
Conservative outlets like The Wall Street Journal and Fox News have done their part to push these plans by hosting numerous op-eds and segments with the authors of these questionable proposals. On the March 4 edition of Fox & Friends, Sen. Bill Cassidy (R-LA) joined hosts Steve Doocy, Brian Kilmeade, and Elisabeth Hasselbeck to promote one such alternative. After Cassidy claimed that the Obama administration has "nothing to say" to consumers who might lose their subsidies, Doocy remarked that "the administration says they don't have a plan B, but apparently the Republicans do." National Review Online has also argued that the Republicans have a viable alternative plan, writing in a recent post that "Senate Republicans aren't leaving anything to chance" and that "there's some conservative intellectual firepower behind" their ideas.
As The Hill reported, these alternatives are "a direct appeal to the Supreme Court justices" that are "intended to make it easier for the court to strike down the subsidies, since Republicans believe the court is more likely to rule in their favor if it believes a plan is in place to limit the fallout."
According to the Urban Institute, 8.2 million Americans, disproportionately women and children, may become uninsured as a consequence of King v. Burwell. But for right-wing media, pointing out the dangerous consequences of the loss of health care subsidies is nothing more than a "scare tactic."
The Wall Street Journal is once again promoting a right-wing challenge to the Affordable Care Act (ACA) by repeating misinformation about the case, calling on the Supreme Court to strike down some health care subsidies while falsely claiming the law's "plain text" renders them illegal.
On March 4, the Supreme Court will hear oral arguments in King v. Burwell, a case that could block the availability of federal health care subsidies. The plaintiffs in King argue that because a subclause of the ACA states that subsidies are available "through Exchanges established by the State," consumers who buy insurance over the federal exchange aren't eligible to receive tax credits from the IRS to offset the cost. Without subsidies, people who live in one of the 37 states that don't operate their own health care exchange would be unable to afford insurance.
In a March 2 editorial, the Journal made its final pitch before oral arguments, calling the challenge an opportunity for "the Justices to vindicate the law's plain text." The editorial, like the challengers in King, ignored the context of the ACA as a whole and claimed that the decision to strike down the subsidies should be an easy call for the Supreme Court because the "English language is clear" and the law is unambiguous:
In King, the High Court will scrutinize this IRS decree using the traditional canons of statutory construction. The English language is clear: Congress wrote that subsidies would be available on state exchanges only, so Washington cannot deputize itself as the 51st state -- especially when the black-letter law is as consistent, tightly worded and cross-referenced as the Affordable Care Act.
To take one example, the Secretary of Health and Human Services was empowered to grant unlimited sums of money to states to establish exchanges. But the law appropriated not a penny for the federal exchanges, and HHS raided internal slush funds to build them. If there is no legal difference between the federal and state exchanges, why did HHS need this budget ruse?
ObamaCare's history shows Democrats made a deliberate choice. As they tried to assemble 60 votes in the Senate, holdouts like then Nebraska Senator Ben Nelson intensely desired state partners. Because the federal government couldn't commandeer the sovereign states by mandating participation, the subsidy bait was Congress's constitutional option to encourage buy-in.
The Journal's attempt to make the plaintiffs' case by arguing that the subsidies are illegal because the Department of Health and Human Services had to rely on a "budget ruse" to build the federal exchanges ignores the facts. According to a report from The Washington Post, the Republican-controlled Congress "repeatedly rejected the Obama administration's requests for additional funds" to implement the ACA, including those exchanges Republican-controlled states refused to set up.
Washington Post syndicated columnist George Will dedicated his most recent column to Gov. Bruce Rauner (R-IL), praising the governor's plans to go after public-sector unions, but got some basic facts wrong in the process.
Rauner has quickly become a favorite among right-wing media figures, both during his gubernatorial campaign and since his election in November. The Wall Street Journal and National Review have also lauded Rauner for his February 9 executive order blocking public-sector unions from collecting "fair share" fees from state employees they represent. Although state employees are not required to join, their union is nevertheless required to represent every state employee -- including nonmembers -- during contract negotiations. Without fair-share fees, nonmembers would get all the benefits of unionization without having to pay for it. Rauner's order would effectively institute "right-to-work" rules for state workers without the headache of getting approval from the Democratic majority in the state legislature first.
In his February 25 column, Will called Rauner's election "this century's most intriguing political experiment" and endorsed the governor's plan "to change Illinois's political culture of one-party rule by entrenched politicians subservient to public-sector unions." Will went on to support Rauner's executive order on union dues, but completely bungled basic facts about the order and the ongoing legal challenges surrounding it:
By executive order, Rauner has stopped the government from collecting "fair share" fees for unions from state employees who reject joining a union. This, he says, violates First Amendment principles by compelling people to subsidize speech with which they disagree. The unions might regret challenging this in federal court: If the case reaches the Supreme Court and it overturns the 1977 decision that upheld "fair shares," this would end the practice nationwide.
Rauner hopes to ban, as some states do, public employees unions from making political contributions, whereby they elect the employers with whom they negotiate their compensation. Rauner notes that an owner of a small firm that does business with Illinois's government is forbidden to make political contributions. Rauner also hopes to enable counties and local jurisdictions to adopt right-to-work laws, thereby attracting businesses that will locate only where there are such laws.
Fox News is reporting on an unsubstantiated rumor that the Obama administration has a "secret plan B" to deal with the fallout of an upcoming Supreme Court case that could invalidate tax credits for millions of Americans. But administration officials have repeatedly denied that such a plan exists -- and there is little the administration could do to restore the credits if the court strikes them down.
On March 4, the Supreme Court will hear King v. Burwell, a case that could block the availability of health care subsidies for consumers who purchased insurance over the federal exchange, which operates as the sole health insurance marketplace in the 37 states that don't operate their own. The lawsuit is based on a right-wing misinterpretation of the Affordable Care Act (ACA) that claims that the law allows the IRS to provide tax credits only to those who bought insurance over "Exchanges established by the State," and not the federal government. In addition to the congressional authors of the ACA, the vast majority of health and legal experts agree that this strained reading of the law is not only incorrect, but contrary to the way the Supreme Court generally interprets statutes -- as a whole, and in context.
Despite the lawsuit's clear flaws, right-wing media have acted as a booster for its potential to gut the ACA -- and only recently figured out that without the subsidies, millions of Americans would be faced with ruinous health care costs. As The New York Times explained, "if the court decides to limit federal tax credits, the result could essentially be the creation of two American health care systems. The haves -- in mostly Democratic states -- may not be impacted, while the have-nots -- in 37 mostly red states -- could face spiraling costs."
But now Republicans are attempting to shift the blame to the Obama administration by claiming that the administration actually does have a super-secret contingency plan, and multiple statements to the contrary are an effort "to influence the court ahead of the March 4 arguments," according to The Hill.
Even though the administration has said that there is no such plan -- secret or otherwise -- Fox News was happy to pass along this unsubstantiated rumor on the February 26 edition of America's Newsroom. In a report about a congressional hearing on the ACA, Fox's Doug McKelway stated that Health and Human Services Secretary Sylvia Burwell would be facing questions about the administration's "contingency plans" if the tax credits are struck down. McKelway went on to report that "there are rumors circulating that senior HHS officials do have a secret plan B should the Supreme Court rule against Obamacare":
Fox News cherry-picked from President Obama's statements at a town hall event to falsely suggest Obama is illegally enforcing his immigration directives in violation of a court order temporarily blocking the directives from going into effect -- but the Obama administration has already suspended implementation of the executive action to comply with the ruling.
On February 25, Obama spoke "directly to the Latino community" at an MSNBC town hall. Speaking with Telemundo and MSNBC host José Díaz-Balart, the president discussed the implications of the recent halt on his immigration actions put in place by a federal judge in Texas, a ruling that is currently being appealed by the Department of Justice.
During the February 26 edition of Fox & Friends, Fox News anchor Heather Nauert played an out-of-context clip of the president's remarks at the town hall, suggesting he was illegally enforcing the immigration actions at issue in the Texas case. Nauert claimed that Obama was "warning" Immigration and Customs Enforcement (ICE) agents who did not follow his executive action and aired a clip of Obama saying:
OBAMA: The bottom line is, is that, if somebody's working for ICE and there's a policy and they don't follow the policy, there're going to be consequences to it.
After airing the clip of Obama's remarks, Nauert alleged that "there's just one problem" with Obama saying ICE agents would have to follow his directives -- "a federal judge has issued a ruling halting the executive immigration order in its tracks":
Later in the program, host Steve Doocy again played the cropped clip of Obama's remarks and claimed that the president was "essentially threatening ICE agents." Doocy added that Obama's policy was to "let everybody stay, but the laws say, if you're in the country illegally, you should be deported":
But the full context of Obama's statements show the president was speaking broadly about ICE agents following policies that are in place, making clear that a federal judge has currently blocked his most recent executive order. In the portion of the town hall directly prior to the remarks Fox aired, Obama told Díaz-Balart that while the administration appeals the Texas ruling, agents are expected to prioritize deportations properly and consistently with existing directives provided by the Department of Homeland Security and the administration (emphasis added):
DIAZ-BALART (Reading question from social media): How do you guarantee that an immigrant who is in the middle of legalizing his status, that he or she is not going to be deported by ICE? Mr. President, my husband was deported during the process, and this, she says, happened just last week.
OBAMA: You know, I would have to know the details of exactly what happened. But what I can tell you is that, until we pass a law through Congress, the executive actions that we've taken are not going to be permanent. They're temporary. We are now implementing a new prioritization. There are going to be some jurisdictions, and there may be individual ICE officials, or border patrol, who aren't paying attention to our new directives. But they're going to be answerable to the head of the Department of Homeland Security, because he's been very clear about what our priorities should be. And I've been very clear about what our priorities should be.
And the -- I don't know what the particular circumstances here are. But what I can tell you is, people who have signed up, for example, under my executive action in DACA, there are seven, 800,000 people who have signed up. They haven't had problems. It's worked. So we know how to make this work. Right now we've got a judge who's blocking it from working. And in the interim, until we can actually process all these applications, then what we're going to do is do what we can in terms of making sure that we're prioritizing it properly.
But the challenge is still going to be that not only do we have to win this legal fight, which we are appealing very aggressively, but ultimately we're still going to have to pass a law through Congress. The bottom line is, Jose, that I'm using all of the legal power vested in me in order to solve this problem. And, you know, one of the things about living in a democracy is that we have separation of powers, we have Congress, we have the judicial branch. And, you know, right now, we've got some disagreements with some members of Congress, and some members of the judiciary in terms of what should be done. But what I'm confident about is ultimately this is going to get done. And the reason it's going to get done is it's the right thing to do. And it is who we are as a people.
DIAZ-BALART: But what are the consequences? Because, how do you -- how do you ensure that ICE agents or border patrol won't be deporting people like this? I mean, what are the consequences?
OBAMA: Look, the bottom line is that if somebody's working for ICE and there's a policy, and they don't follow the policy, there are going to be consequences to it. So I can't speak to a specific problem. What I can talk about is what's true in the government generally. In the U.S. military when you get an order, you're expected to follow it. It doesn't mean that everybody follows the order. If they don't, they've got a problem. And the same is going to be true with respect to the policies that we're putting forward.
The Obama administration has already delayed the implementation of their executive action on immigration in response to the court's ruling on the matter. As The New York Times explained, "administration officials ... postponed President Obama's sweeping executive actions on immigration indefinitely, saying they had no choice but to comply" with the judge's order to halt the policy.
Fox News Host Sean Hannity is criticizing singer John Legend's Oscars speech, which invoked the civil rights movement and the ongoing fight for racial and social justice. In response to Legend's completely accurate statement that the Voting Rights Act of 1965 is under attack today, Hannity disagreed and appeared to argue that the seminal civil rights law was irrelevant to strict voter ID laws.
On February 22, Legend and co-writer Common won the Academy Award for Best Original Song for "Glory," from the film Selma, a historical drama about Dr. Martin Luther King, Jr.'s fight for equal voting rights. In his acceptance speech, Legend noted that the civil rights struggle represented in the movie continues "right now": "We wrote this song for a film that was based on events that were 50 years ago, but we say that Selma is now, because the struggle for justice is right now. We know that the Voting Rights Act that they fought for 50 years ago is being compromised right now, in this country, today."
On the February 23 edition of his show, Hannity complained that Legend "decided to make all things political." Even though Legend didn't explicitly bring up voter ID laws in his speech, Hannity went on to suggest that it was inappropriate for Legend to "equate the Voting Rights Act with showing an ID to get to vote so we can keep honesty and integrity in our elections ... I like John Legend as a musician, but he doesn't know anything about politics":
The Wall Street Journal is celebrating a ruling from a lower-court judge who has temporarily blocked President Obama's exercise of prosecutorial discretion over undocumented immigrants by repeating a litany of right wing-media myths, some of which were repeated in the legal decision itself.
On February 17, federal district court Judge Andrew Hanen issued a preliminary injunction that will block the Department of Homeland Security's implementation of the president's recent executive actions on immigration in the face of GOP opposition to immigration reform. These actions, which will defer deportations for some undocumented immigrants and were scheduled to open the application process today, have long been criticized by right-wing media as "unconstitutional," despite the fact that there is plenty of legal and historical precedent for the order.
Hanen's ruling -- which not only goes against other recent lower-court rulings, but also Supreme Court precedent -- found a receptive audience at The Wall Street Journal. The Journal has been particularly critical of Obama's immigration actions, erroneously suggesting the administration had not sought a legal justification for his order before issuing it and denouncing Obama for acting "on his own whim because he's tired of working with Congress." In a February 17 editorial, the Journal commended Hanen, calling his decision "a vindication of the 26 states that brought the challenge and, more significantly, for the rule of law":
Last November the Department of Homeland Security published memos instructing immigration enforcers to disregard federal laws that require deportation of the undocumented and place strict limits on who may work in the U.S. The White House and DHS claim this "deferred action" is nothing more than routine prosecutorial discretion, as if the department is merely conceding that its officers cannot hunt down and deport the millions of illegals in the country.
Judge Hanen dismantles that fiction. As he points out, the DHS memos amount to "a massive change in immigration practice" that reorders "the nation's entire immigration scheme." Instead of the historical norm of forbearance in individual cases, the memos devote 150 pages to detailing a blanket policy for whole classes of immigrants -- meaning that discretion is "virtually extinguished," as Judge Hanen writes.
The memos also actively bestow benefits that Congress never granted, such as the right to work, obtain Social Security numbers, and travel to and from the U.S.
The editorial is a rehash of myths about the executive action. For example, it is true that Congress never granted undocumented immigrants "the right to work," but neither did Obama's executive order. Undocumented immigrants who qualify for deferred action will become eligible for work authorization permits, not because of Obama's order, but because of a federal law that was passed in 1986 under Ronald Reagan.
Media outlets are reporting that Sen. David Vitter (R-LA) will attempt to block the confirmation of Loretta Lynch as U.S. attorney general on the grounds that the president's "illegal executive amnesty for illegal immigrants would be implemented" by the nominee. However, in reports about the January 28 hearing in which Vitter explained his "huge concern" about the "unconstitutional" executive actions on immigration, both mainstream and right-wing media failed to note that the statutory provision the senator relied on was not only the wrong one, it was out-of-date.
Lynch, the federal prosecutor for the Eastern District of New York, has been widely praised across the political spectrum, and multiple conservatives -- including current Republican senators -- support her nomination. Her credentials are so strong, even right-wing media favorites called to her confirmation hearing by GOP members of the Senate Judiciary Committee agreed she was unobjectionable. Nevertheless, from the moment President Obama nominated Lynch, conservative media have attempted to smear her -- attempts that have been riddled with spectacular mistakes.
Right-wing media are now hitching their opposition to Lynch to the positions of Vitter, who has repeatedly stated he will do his best to block the nominee's confirmation because she does not oppose the president's executive actions on immigration. On her radio show, Laura Ingraham hosted Vitter and agreed with his opposition to Lynch because of her support for "executive amnesty," repeating the debunked myth that Lynch believes there is a legal right for undocumented immigrants to work. Breitbart.com, which has struggled mightily to successfully criticize the nominee, also highlighted Vitter's obstructionist intentions toward Lynch, noting that "Lynch's outspoken support for President Obama's executive amnesty" was in part responsible for the current Republican delay on an up-or-down vote.
Mainstream outlets have reported on Vitter's antipathy toward Lynch as well, based on her support for the "reasonable[ness]" of the justification for the immigration actions. These reports have specifically noted that the senator laid out his case for the illegality of deferred action for certain undocumented immigrants at her recent hearing, where he accused the administration of flouting the law by assigning Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA) to the Department of Homeland Security. As Vitter said during the hearing, "I've read the plan, and the plan as I read it is for all of that to be done in the Department of Homeland Security. So my question would be, what is the statutory basis to allow that, when under the statute -- not some order, not some legal opinion -- the statute, the law, word by word it says the attorney general is in the middle of that decision[.]" The Washington Post, for example, included a photo of the oversized copy of 8 U.S. Code § 1182(d)(5) that Vitter displayed as he repeatedly questioned the nominee for agreeing with the White House's legal defense of the immigration actions. Vitter finally remarked, "Well, again, I'll have to be following up for the fourth time, but that'll be a central question. The plan is not for the attorney general to be in the middle of this at all. The statute says that 'the attorney general is.' Why aren't we following the statute?"
Unfortunately, both right-wing and mainstream media reporting on Vitter, the January 28 hearing, and his opposition to Lynch have failed to note that Vitter's questioning was referring to the wrong part of the law, which has since been superseded.
Right-wing media are celebrating Gov. Bruce Rauner's (R-IL) executive order blocking public-sector unions from collecting "fair share" fees from the state employees they represent, even though there is no precedent for such a move. National Review and The Wall Street Journal are praising Rauner for "thinking creatively" by effectively turning Illinois into a "right-to-work" state without legislative approval, even though those same outlets have criticized President Obama for issuing lawful executive orders without Republican input.
Rauner's order specifically targets "fair share" dues that nonmembers in unionized workplaces pay to cover the cost of union representation for their collective bargaining agreements. Illinois law already prohibits fair share fees (as opposed to full membership dues) from being used to fund union political activities, but Rauner nevertheless issued his executive order and wrongly claimed that "an employee who is forced to pay unfair share dues is being forced to fund political activity with which they disagree." A number of states have passed "right-to-work" laws that target these kinds of dues with the express purpose of weakening the bargaining power of unions. But Rauner saved himself some time by ignoring decades of Supreme Court labor-law precedent and imposing the "right-to-work" standard on state employees without running it past the legislature first.
Right-wing media are not particularly concerned with Rauner's unilateral and legally questionable antics. Rauner's lawyers, however, apparently realize the unusual nature of this executive action. On the governor's behalf, they have defensively filed a lawsuit asking a district court to preemptively declare his order legal on the radical assumption that all union activity -- even that related to collective bargaining -- is inherently political.
In a February 11 post, National Review writer Patrick Brennan applauded Rauner's "daring" and legal manuevering, celebrating that "Rauner's Illinois is in limbo -- and, duly elected, he deserves credit for putting them there." The Journal also praised Rauner in a February 10 editorial for "thinking creatively" since the "Democrats who have a supermajority in the state legislature won't make Illinois a right-to-work state."
This is an interesting about-face on executive orders from these outlets, which have attacked Obama's executive action on immigration in the face of an obstructionist GOP-controlled House as an "abuse of power" and "executive overreach" -- despite there being plenty of legal and historical precedent to support Obama's orders. In a November 16 editorial, the Journal argued that it would "support more liberal immigration but not Mr. Obama's means of doing it on his own whim because he's tired of working with Congress." Similarly, in a November 6 editorial, National Review complained that for Obama to "act on immigration without engaging the country's new congressional majority would be a defiance of the legislative branch, and of the American electorate."
But Rauner's order gets a pass from National Review now, because it is enough that "after a deep legal review, he thinks the fair-share fees are unconstitutional forced expression."
Apparently Rauner's deep legal review involves rewriting the basics of labor law. As the Illinois Economic Policy Institute explained, Rauner's claim that "state workers are forced to pay union dues for political purposes" is "false":
Illinois law does not prohibit labor organizations with state collective bargaining agreements from contributing to elected officials, but it also does not mandate that workers must pay for political activities that are endorsed by their representative union. The Illinois Public Labor Relations Act requires all employees covered by a collective bargaining agreement to pay their "fair share" of the cost of collective bargaining and contract administration. Fair share dues "shall not include any fees for contributions related to the election or support of any candidate for political office" but an employee can make "voluntary political contributions in conjunction with his or her fair share payment" [emphasis added]. Since the 1988 Communications Workers of America v. Beck case in the U.S. Supreme Court, unions are authorized to collect from non-members only fees and dues necessary to perform collective bargaining operations, and workers can object to paying a portion of their dues toward political activities.
As conservative Justice Antonin Scalia explained in a 1991 labor law case, nonmembers who don't pay dues "are free riders whom the law requires the union to carry -- indeed, requires the union to go out of its way to benefit, even at the expense of its other interests. In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others." Without compulsory fair share dues for the collective bargaining agreement from which both non-members and members benefit, unions face a serious "free rider" problem and threat to their financial viability.
Which, for the National Review and the Journal, is clearly the point.
There's no question that the current makeup of the Supreme Court is less sympathetic to the labor movement than it has been in the past. In 2014, the conservative majority ruled that home care workers in Illinois (who are paid with state Medicaid funds but are not full-fledged public employees) cannot be compelled to pay dues to a union they don't want to join, but ultimately declined to strike down a 1977 case that allows public-sector unions to collect "fair share" dues from nonmembers. Even though Justice Samuel Alito's majority opinion questioned the "foundations" of that 1977 ruling -- basically inviting a challenge like Rauner's -- the case is still good law.
In light of this precedent, some might call Rauner's actions an appeal to the "judicial activism" they frequently condemn. The WSJ, on the other hand, is calling this "thinking creatively."
The Supreme Court will soon hear King v. Burwell, a right-wing challenge to the Affordable Care Act that could strike down the subsidies that Americans rely on to purchase health insurance. Here is a media guide to some of the health care and legal experts -- including conservative industry groups, members of Congress, and state officials -- who are asking the Court to reject the challengers' reading of the ACA, which flouts common sense and rules of statutory interpretation.
An AL.com columnist incorrectly described the legal challenges to prohibitions on same-sex marriage and declared he is "thankful" for Alabama Supreme Court Chief Justice Roy Moore, who recently announced he was opposed to recent federal marriage equality rulings. Moore has urged the state's Governor to stand against "judicial tyranny" and warned he might not accept the U.S. Supreme Court's final decision on this matter.
On January 23, a federal judge in Mobile struck down Alabama's voter-approved prohibition on same-sex marriage, ruling that the ban violated the 14th Amendment of the U.S. Constitution. On January 27, Moore wrote a letter to Alabama Governor Roy Bentley, asking Bentley to join him in ignoring the federal civil rights decision. Moore also expressed his "dismay" that probate judges in Alabama planned to "recognize and unilaterally enforce a federal court decision which does not bind them" and stated that he "would advise them that the issuance of such licenses [to same-sex couples] would be in defiance of the laws and Constitution of Alabama."
On January 28, he appeared on the Family Research Council's radio show to defend the Supreme Court's now-overturned decision in Bowers v. Hardwick that affirmed state bans on gay sex. Moore told host Tony Perkins that "the danger of [marriage equality decisions] is, if we let judges overturn the will of the people and do nothing about it and do not push that, then the United States Supreme Court turns around and says, 'Well, now, 30 states have adopted this, and that's a majority of the people that want it.'" He followed up this defense of anti-LGBT discrimination on January 29 in a radio interview on The Matt Murphy Show, where he reportedly claimed "that's a very hard decision" as to whether or not he would follow the decision of the Supreme Court if it upheld the marriage equality decisions he condemns.
"Good for him," AL.com's J. Pepper Bryars wrote in support of Moore's recent stand against the federal judiciary's endorsement of marriage equality in his February 3 column. He also applauded Moore's decision to take "an all-too-rare stand against judicial activism in America," and admonished "lawmakers [who] loudly complain about federal judges, but then meekly abide by their rulings without any serious action, it's refreshing to see someone finally push-back in a real way":
Whatever side of the aisle you're on, it should be troubling that our democratic society so easily -- and perhaps too eagerly -- bends the knee to the bench on practically every issue. Is there anything that isn't under their purview? Is there anything that "we the people" can decide for ourselves? It appears that when the courts decide those questions for themselves, without any serious check and balance, the answer is clearly "no."
It's not that federal courts don't have the power of judicial review -- the ability to ensure that laws aren't clearly forbidden by the federal constitution -- it's a matter of scope. As noted in Moore's letter, "nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage."
He's right. There's nothing in the constitution that remotely touches upon marriage, or abortion for that matter, except the part that says whatever isn't written in there must be left to the states to figure out, or to the people. Yet we allow more than a million unborn babies to be killed annually in the United States because nine judges said it was okay back in the 1970s. We're still submitting to that unjust ruling.
National Review's editorial board is arguing that Senate Republicans should "resist" Loretta Lynch's nomination to become the next U.S. attorney general because the board refuses to believe that "amnesty" is not forthcoming, and it falsely claims Lynch thinks there is a constitutional right for undocumented immigrants to work.
On January 28, Lynch appeared before the Senate Judiciary Committee, where questions from Republican members focused primarily on whether Lynch believes that President Obama's immigration action was legal. Legal experts agree that the action -- which temporarily defers deportations for some undocumented immigrants who meet a series of qualifications and pass a criminal background check -- is a lawful exercise of the president's authority to use prosecutorial discretion to prioritize some deportations over others.
Nevertheless, right-wing media are playing up questions from Republican senators who believe that the immigration order is unconstitutional and attacking Lynch for her responses, even if they don't understand what she said. National Review took it further in a January 29 editorial, claiming that confirming Lynch would be "an abnegation of [Senate Republicans'] November mandate and, even more important, their constitutional duty."
The editorial also claimed that Lynch had "evaded questions" from Sen. David Vitter (R-LA) about whether Obama's "amnesty order" will allow law-enforcement agencies to make decisions case by case. The editorial went on to take Lynch's comments about whether undocumented immigrants have the right to work out of context and ignored her subsequent clarification, calling her remarks "constitutionally insupportable":
In Senate confirmation hearings held this week, Ms. Lynch has evaded questions from Louisiana senator David Vitter about whether the amnesty order will actually be carried out on a "case-by-case basis," as even the administration's own lawyers say is required by law, and from Utah senator Mike Lee and Texas senator Ted Cruz about whether a future president could, under President Obama's rationale of "prosecutorial discretion," decline to enforce tax or labor or environmental laws. But among the things she has stated unequivocally is her belief that the president's executive order is "legal and constitutional." She even went further, telling Alabama senator Jeff Sessions that "the right and the obligation to work is one that's shared by everyone in this country regardless of how they came here." Such an assertion is both ahistorical and constitutionally insupportable. But it is the president's own alarming view, and simply confirms that Ms. Lynch, like Eric Holder, would lend the Justice Department's endorsement to the president's lawlessness.
As even Fox News host Megyn Kelly has admitted, the executive action is not amnesty -- it is an exercise of prosecutorial discretion, common in all forms of law enforcement and not just in the context of immigration. According to Kelly, the word "amnesty" is "a hot-button term that the right uses to sort of get people upset."