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."
The Washington Post blog The Fix is claiming that an upcoming Supreme Court decision that could eliminate health care subsidies for millions of Americans under the Affordable Care Act (ACA) "might not matter" because Republicans might restore the subsidies, a proposition that seems not to consider the fact that the GOP has long ignored these tax credits' popularity in their quest to bring the law down, subsidies and all.
In March, the Supreme Court will hear arguments in King v. Burwell, a right-wing challenge to the ACA. The challengers argue that, based on their strained reading of the subsidies provision of the law, which was designed to make health insurance affordable, the IRS does not have the authority to provide tax credits to Americans who purchased their insurance through the federal health care exchange website. Instead, they argue, only consumers who bought insurance through state-based exchanges are eligible for the subsidies -- a problem since Republican-controlled states refused to set up their own sites.
In a January 28 post, The Fix argued that it "might not matter" if the Supreme Court strikes down the subsidies, because a new poll from the Kaiser Family Foundation suggests that the majority of Americans would want the Republican-controlled Congress to restore the subsidies.
But it actually matters a lot -- leading Republicans have repeatedly and publicly sided with the right-wing challengers of the subsidies as a way to bring down the ACA. In September, a group of congressional Republicans filed a brief with the Supreme Court asking the justices to hear the case and to rule that the IRS doesn't have the authority to provide subsidies to Americans who bought insurance through the federal exchange. Republican members of Congress know full well that if they are successful, the ACA will collapse -- that's their self-admitted goal.
Earlier this month, Sen. John Cornyn (R-TX), who was one of legislators who filed the brief, told Roll Call that he expected the court to "render a body blow to Obamacare from which I don't think it will ever recover." In December, Sen. John Barrasso (R-WY) similarly argued that blocking the subsidies was "enough to bring down the health care law. ... We're going to continue to try one, repeal; two, strip out the worst parts of the law; and three, look to the courts." Senate Majority Leader Mitch McConnell similarly made it clear that Republicans are not interested in restoring anything about the ACA if the court "take[s] it down," but rather are looking for a "mulligan here, a major do-over of the whole thing." Even The Fix's post acknowledged that "just because restoring subsidies might be popular doesn't mean congressional Republicans would do it. The GOP base would certainly cry foul if they moved to do so."
Breitbart.com is incorrectly claiming that Loretta Lynch "undercut the legal argument" supporting President Obama's executive action on immigration, when in reality she did no such thing.
On January 28, Lynch appeared before the Senate Judiciary Committee for her confirmation hearing to become the next attorney general of the United States. Lynch is widely considered by people on both sides of the aisle to be a well-qualified pick for the post, but she still faced tough questions from Senate Republicans who, as The New York Times put it, wanted "assurances she would break from some of the practices" of current Attorney General Eric Holder.
One line of questioning in particular centered around Lynch's thoughts on the legality of Obama's recent executive action on immigration that will defer deportation proceedings for some undocumented immigrants. Legal experts agree that the president's action, which will provide temporary administrative relief for certain undocumented parents of U.S. citizens or lawful permanent residents who pass a background check, is "clearly within his discretionary power." Immigrants whose deportations are deferred under this form of prosecutorial discretion are then eligible to apply for work authorization permits and driver's licenses (depending on the state) -- a benefit that was not introduced by Obama, but rather is permitted under the Immigration Reform and Control Act of 1986 and the Real ID Act of 2005, respectively.
Breitbart.com, a site that once spectacularly confused nominee Lynch with a completely different Loretta Lynch in its rush to smear her qualifications, made yet another error in reporting on the confirmation hearing. A January 28 post on Breitbart claimed that Lynch "[p]erhaps by accident" had "undercut the legal justification the president has given for his executive amnesty for millions of illegal aliens during her confirmation hearing." Aside from incorrectly defining the president's immigration actions as "amnesty" -- a mistake that other conservative media figures like Fox News' Megyn Kelly have avoided -- Breitbart homed in on an exchange between Lynch and Sen. Mike Lee (R-UT), who asked about limitations on using prosecutorial discretion to prioritize deportations. Breitbart quoted Lynch's response:
I think that if a prosecutor were to come to the view that they had to prioritize one crime over another, you would always still want to retain the ability -- even if it was an area that was not an immediate priority -- if for example it became one. Because if a particular neighborhood was being victimized, or again to use your issue of speeding, there were deaths resulting from that. You would want to have the ability to, if you could, take resources and focus on that issue. It might not be the first priority but you would want to have the ability to go back and deal with that issue.
Breitbart went on to argue that, in her response, "Lynch effectively admits that what Obama has done with executive amnesty -- providing legal documentation and work permits for millions of illegal aliens, thereby legalizing their status in the United States -- far exceeds any reasonable definition of prosecutorial discretion. She also said that prosecutors should keep the door open to prosecuting an illegal action that isn't currently a priority if it becomes one eventually. So even if illegal immigration isn't a priority right now for whatever reason, prosecutors need to be able to go after that crime later."
What she said does not "undercut" the policy at all. By definition, the executive actions (which are reversible themselves) that grant temporary administrative relief by deferred action "keep the door open" and allow law enforcement "to go after that crime later," as Lynch stated. The hint is in the name of the actions, which Breitbart did not cite: the "case-by-case" Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA) programs.
Given the fact that it would be impossible for law enforcement to deport every person currently living in the United States without the appropriate documentation, it is essential to prioritize some removals over others. Lynch's comments do not undermine the administration's position, which she said was "reasonable" -- they simply explain how prosecutorial discretion, such as DAPA and DACA, works in practice.
The witness list for the Senate Judiciary Committee's hearing on Loretta Lynch, the highly regarded nominee for attorney general, indicates the process will be a forum for right-wing media favorites and myths but will have little to do with her qualifications.
Lynch, the U.S. attorney for the Eastern District of New York, has long been praised across the political spectrum as a model federal prosecutor. Lynch has been confirmed twice as a U.S. attorney -- including by some of the same Republican senators now in control of the Judiciary Committee -- and news of her nomination in November brought a new round of support, including from conservative law enforcement sources.
Current New York Police Department Commissioner William Bratton called Lynch "a remarkable prosecutor with a clear sense of justice without fear or favor." Former FBI director Louis Freeh wrote in a letter to Judiciary Committee leadership that he couldn't think of "a more qualified nominee" and was "happy to give Ms. Lynch my highest personal and professional recommendation." Freeh also wrote that he had spoken with "several of my former judicial colleagues who echo this support, and note that Ms. Lynch has gained a terrific reputation for effectively, fairly and independently enforcing the law." Former New York City Mayor Rudy Giuliani, who worked with Lynch on an infamous police brutality case, has said "if I were in the Senate, I would confirm her."
Fringe right-wing media outlets and figures initially ignored this broad support and attacked Lynch anyway. The effort was spectacularly unsuccessful, as they mixed up the nominee with an entirely different Loretta Lynch and then claimed that her membership in Delta Sigma Theta, one of the country's leading African-American sororities, was "controversial."
Leading Fox News figures were better informed about the New York nominee, most notably News Corp. chairman Rupert Murdoch, who immediately noted Lynch had a "reputation for fairness and strict legality." In an O'Reilly Factor segment with Megyn Kelly on November 10, Bill O'Reilly said he was "heartened" she would be the new attorney general. In response, Kelly praised Lynch:
KELLY: I have to say that I think this is the person who should be the most acceptable to the right wing or the Republicans in this country of anybody who President Obama was considering. She is a straight shooter. First of all, she would be the first black female attorney general, right? I mean, that in and of itself is a pretty amazing accomplishment. Went to Harvard undergrad, went to Harvard Law School. She has no close ties to the White House. She is not some firm ideologue or partisan. She has prosecuted Democrats and Republicans. She's been a hero on gang crime, on terrorism.
Republican senators have been similarly honest about Lynch's record, admitting that she "seems to be a solid choice" and will instead use her hearing as a forum for grievances they have with the administration and outgoing Attorney General Eric Holder. The new chairman of the committee, Sen. Chuck Grassley (R-IA), told Politico: "All I can tell you is that immigration is going to be a big part of it. ... Not because of her views on immigration, but of the president's action on immigration and the extent of what she feels he's acted in a legal way."
Unfortunately, a review of the newly released witness list reveals that the Republican choices for this "proxy war of sorts" rely heavily on right-wing media favorites who frequently spread debunked smears and myths:
Wall Street Journal editorial board member Mary Kissel is misinforming about a new fair-housing case under consideration by the Supreme Court, scaremongering that a decision to uphold half a century of civil rights precedent could force sellers, lenders, and landlords to establish policies that amount to "informal quotas."
On January 21, the Supreme Court heard oral arguments in Texas Department of Housing v. the Inclusive Communities Project, a fair-housing case that could make it more difficult for victims of discrimination to bring legal challenges against policies that reinforce decades of racial segregation, unintentionally or not. The Inclusive Communities Project argues that the way the Texas Department of Housing administered an affordable-housing plan had a discriminatory effect by entrenching racially segregated housing patterns in the Dallas area. This kind of lawsuit is known as "disparate impact" litigation, which has long been used under various civil rights statutes, including the Fair Housing Act (FHA). It does not require that intentional discrimination be demonstrated, rather that the challenged policies had an unjustified and disproportionate, negative impact on vulnerable groups protected by the FHA. Even though the Department of Housing and Urban Development (HUD) and other fair-housing advocates have successfully relied on disparate-impact litigation for almost 40 years, Texas is arguing that lawsuits under the FHA should newly be required to provide evidence of intentional racial discrimination.
On the January 21 edition of the Journal's WSJ Live video series, Kissel used a hypothetical about the government forcing a bank to make mortgage loans to attack the logic of disparate-impact analysis. Kissel said in this scenario, "Effectively, the government is saying, 'We want informal quotas. You have to lend x to Hispanics, y to blacks, and z to whites.' That doesn't sound constitutional to me." Kissel then went on to say that the Obama administration had "used this theory to shake down banks for millions of dollars. Let's hope the justices actually read the text of the law":
Right-wing media have long objected to the use of disparate impact in fair-housing litigation, calling it a "dubious legal theory." In fact, every one of the 11 federal circuit courts that have considered the question over the last 40 years have reaffirmed that the amelioration of discriminatory effects is a core component of both the intent and text of the FHA, and Congress specifically amended the statute in 1988 in recognition of the fact. Such overwhelming consensus was unsurprising -- the need to begin the slow process of integration after centuries of residential apartheid was specifically designed to be a systematic task, and not a game of Whac-A-Mole aimed at individual bad actors. It was anything but a fringe theory, but rather the product of bipartisan efforts, including those of the Republican HUD chief George Romney in the Nixon administration.
Despite dedicating numerous segments to comments made by MIT economist Jonathan Gruber about tax credits established under the Affordable Care Act (ACA) that appear to support a right-wing challenge to their legality, Fox News' programming on weeknights has ignored remarks made by Gov. Scott Walker (R-WI) that undermine the legal theory behind this upcoming Supreme Court case.
In March, the Supreme Court will hear oral arguments in King v. Burwell, the radical attempt to dismantle the ACA based on an extremely literal reading of the law. The challengers in King, and several other identical lawsuits, argue that the IRS is prohibited from providing essential subsidies to insurance consumers who live in states that refused to set up their own health care exchange websites, because the law says that subsidies are unavailable for those who purchased insurance through the default federal exchange. If this interpretation is correct, millions of Americans will be unable to afford their insurance premiums -- a result that seems at odds with a bill with the word "affordable" in its title.
Nevertheless, the legal arguments in King have been hyped regularly by Fox News and right-wing media, especially after a video of Gruber came to light in which he seemed to agree with the King challengers that subsidies were not available to consumers in states who used the federal exchange. According to a search of the Nexis database, Fox News' weeknight programming since November 1 has frequently mentioned Gruber in connection to the King case, airing 25 segments that mentioned Gruber's comments in conjunction with the ACA lawsuit. Many of those segments featured a Fox host, contributor, or guest suggesting that Gruber's remarks were so significant that they would influence the outcome in King. Most notably, host Bill O'Reilly repeatedly claimed that the justices would be swayed by Gruber, stating on his November 18 show, "Believe me, the Supreme Court is taking notes."
Meanwhile, those same shows have ignored a pair of videos that show Walker apparently undermining the legal theory behind King.
This January marks the fifth anniversary of Citizens United v. FEC, the 2010 Supreme Court case that expanded the idea of "corporate personhood" by ruling that the First Amendment protects a corporation's right to make unlimited expenditures in support of political candidates as a form of speech. Network news coverage of its legal impact, however, has largely ignored how the Supreme Court continues to aggressively expand the decision.
This expansion of corporate rights has wide-ranging consequences, even outside of the context of campaign finance deregulation. The court's decision in Burwell v. Hobby Lobby, for example, seemed to embrace the idea that corporations are capable of morally objecting to contraception coverage, co-opting yet another constitutional right -- that of religion -- that had previously been reserved for people, not businesses.
In terms of election law, the conservative justices further dismantled campaign finance restrictions in 2014's McCutcheon v. FEC, which struck down aggregate campaign donation limits and allowed wealthy donors to contribute money to a virtually unlimited number of candidates and political parties. The court will hear yet another campaign finance case on January 20 called Williams-Yulee v. the Florida Bar, which could strike down a Florida rule that prohibits judicial candidates from directly soliciting money from donors -- a rule that was put in place in response to a serious corruption scandal that resulted in the resignations of four Florida Supreme Court justices.
Yet despite the cascade of decisions from conservative justices intent on dismantling campaign finance regulations and rewriting corporate rights -- and the majority of Americans who support a constitutional amendment that would overturn Citizens United -- the media have largely underreported this story.
Here are four graphics that illustrate this failure.
On January 20, the day before the five-year anniversary of Citizens United, the Supreme Court will hear yet another case that could roll back campaign finance restrictions, this time for judicial elections. Here is a media guide to some of the legal briefs filed by experts in that case, Williams-Yulee v. the Florida Bar, which warn that allowing judges to solicit campaign donations directly is a recipe for disaster.
Fox host Eric Bolling called on the New York Police Department to engage in more racial profiling and stop-and-frisk after the terrorist attack on the offices of a satirical French magazine, but his characterization of the legality and constitutionality of race-based policing misrepresents these practices.
On January 7, masked gunmen attacked the headquarters of Charlie Hebdo, a French weekly that had previously run caricatures of the Prophet Muhammad. Right-wing media were quick to politicize the attack and describe it as an argument for the practice of race-based police tactics in America, even those prohibited by federal law or the U.S. Constitution. On the January 7 edition of Fox & Friends, co-host Elisabeth Hasselbeck suggested that NYPD officers should be able to target certain communities without fear of being painted with "a racist brush." Hasselbeck also suggested that New York Mayor Bill de Blasio had demoralized the NYPD and threatened security by calling on the police to stop improper racial profiling.
As right-wing media have done repeatedly in the past, Hasselbeck failed to recognize that police practices must pass a threshold of constitutionality regardless of their alleged efficacy at imposing "order."
This narrative continued on the January 7 broadcast of Outnumbered, where Fox host Eric Bolling joined the panel to claim that people in New York should feel "anger" toward de Blasio for his efforts to eliminate unconstitutional stop-and-frisk policies and curb racial profiling. Bolling argued that police had used racial profiling "so effectively for so long" to target people who are "the type of person who's done it in the past." Bolling went on to wonder, "How did profil[ing] become a) unethical, b) illegal? It's throughout history been the most effective law enforcement tool." Outnumbered co-host Andrea Tantaros agreed with Bolling that "leftist mayors like de Blasio" and the Obama administration had "taken those tools away at a time when we need them the most," and claimed that "targeting mosques" was "crucial" towards uncovering terrorist activity:
Major network newscasts have given almost no coverage to an upcoming Supreme Court case that will decide whether judicial candidates can personally solicit campaign donations -- despite the risk of corruption.
On January 20, the court is scheduled to hear oral arguments in Williams-Yulee v. Florida Bar, in which a candidate for an elected county judge position -- Lanell Williams-Yulee -- sent out a fundraising letter that she signed herself. As in the majority of states, judicial candidates in Florida are prohibited from sending out this kind of direct solicitation to prevent the appearance or risk of corruption. Instead, they are required to set up separate campaign committees to send out fundraising requests on their behalf. The Florida Bar filed a complaint against Williams-Yulee, who was ultimately reprimanded and fined. Williams-Yulee is now arguing that the ethical rule restricting her ability to ask for donations is an unconstitutional restriction of her free speech, an extension of the argument validated by the conservative justices in Citizens United and its progeny.
This case gives the conservative justices of the Supreme Court yet another chance to roll back restrictions on campaign finance -- which they have steadily gutted since 2010's Citizens United decision allowing millions of dollars to flood the federal election system. Most recently, the court struck down aggregate campaign limits in 2014's McCutcheon v. FEC, making it easier for wealthy donors to contribute to a virtually unlimited number of candidates and political parties.
Yet a Media Matters analysis of Sunday morning talk shows (ABC's This Week, CBS' Face the Nation, and NBC's Meet the Press) as well as nightly news programs (ABC's World News Tonight, the CBS Evening News, NBC's Nightly News, and PBS NewsHour) reveals just one segment that covered the Williams-Yulee case since it was appealed to the Supreme Court -- the October 2 edition of PBS NewsHour.