Fox News host Heather Nauert is calling a bizarre federal court opinion that found President Obama's executive action on immigration unconstitutional a "pretty simple" decision, despite the fact that even conservative legal experts have called it a stretch.
On the December 17 edition of Happening Now, Nauert turned to legal experts Robert Bianchi and Brian Claypool to discuss Judge Arthur Schwab's lower court ruling that, surprisingly, evaluated the constitutionality of the president's recent decision to exercise prosecutorial discretion and defer deportation for certain undocumented immigrants. Both Bianchi and Claypool explained that the judge's ruling had "no legal significance" and "doesn't make sense," but Nauert disagreed. Other conservative legal experts are also questioning how the judge came to this conclusion on an unrelated matter of civil immigration law, given the fact that neither party in this criminal case contested the constitutionality of Obama's executive order.
Although Nauert admitted that she is "not a lawyer," she nevertheless argued that the judge's decision "seems pretty simple":
But the ruling from Judge Schwab, who has seen his fair share of controversy with respect to his legal judgment since being appointed to the bench, wasn't quite as "simple" as Nauert insisted.
Legal experts across the political spectrum agree that the president has broad authority to exercise prosecutorial discretion when it comes to deportation proceedings, which the Supreme Court affirmed as recently as 2012. Despite right-wing media's unwillingness to accept the idea that Obama's order is lawful, immigration experts have noted that the president is not only acting "within the legal authority of the executive branch of the government of the United States" but is also authorized by federal statute to provide temporary administrative relief of this type, as presidents of both parties have done for decades.
Moreover, according to Jonathan Adler, a law professor and contributor for The Washington Post's libertarian Volokh Conspiracy blog, Judge Schwab overstepped his own authority in ruling on the constitutionality of Obama's executive order. As Adler explained, "it is quite unusual for a district court to reach this sort of constitutional issue in this sort of case":
Indeed, Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President's actions. Based upon the procedural history recounted in the opinion, it appears the court requested briefing on the applicability of the new immigration policies on its own order. That is, the issue was not initially raised by the defendant in his own defense. As a result of the court's decision, however, the defendant now has the option of withdrawing his guilty plea and potentially seeking deferral of his deportation under the new policy.
On the merits, I understand the concerns that motivate Judge Schwab's reasoning, but I am not persuaded. First, it is important to note that the executive branch has exercised a substantial degree of discretion in implementing and enforcing immigration law for decades. Work permits have been issued in conjunction with deferred action for at least forty years. President Obama's actions are broader in scope, but not clearly different in kind from what his predecessors have done and to which Congress has acquiesced.
Adler's conservative colleagues at the Volokh Conspiracy agreed with this assessment, with law professors Ilya Somin and Orin Kerr calling it "poorly reasoned" with "serious flaws," and "exceedingly strange," respectively. Somin elaborated on how radical the opinion is, noting that "[i]f the Supreme Court were to adopt Judge Schwab's reasoning, federal law enforcement agencies would be barred from issuing general systematic guidelines about how their officials should exercise prosecutorial discretion. The exercise of discretion would then become arbitrary and capricious. Alternatively, perhaps they could still follow systematic policies, so long as those policies were not formally declared and announced to the public, as the president's order was. Neither possibility is particularly attractive, and neither is required by the Constitution."
On the other hand, Judge Schwab does have the support of Fox News host Sean Hannity, who crowed that the opinion "could've been written by me."
Fox News used the Sydney, Australia hostage situation to question whether Australia's strict gun laws should be loosened, but offered no commentary on Pennsylvania's relatively looser gun laws in their reports the same day when a man went on a shooting rampage, killing six. Americans are murdered with guns at a rate more than ten times greater than Australians.
On December 15, Fox News heavily reported on a hostage situation in a Sydney, Australia chocolate shop. A man, who according to authorities had "a long history of violent crime, infatuation with extremism and mental instability," used a shotgun to hold café patrons hostage for 16 hours. After gunfire was heard police stormed the shop. The hostage-taker and two hostages were killed. One hostage was reportedly killed while trying to disarm the hostage-taker, while it is unclear if the other one was shot by the hostage taker or caught in the crossfire.
As Fox reported on developments out of Sydney, the conservative network also provided updates from Pennsylvania where Bradley William Stone allegedly went on a shooting rampage, killing his ex-wife and five of his former in-laws. One former in-law was wounded. Police are currently searching for Stone. (UPDATE: Stone has been found dead, reportedly of self-inflicted wounds.)
Tellingly, Fox News used the Sydney incident to raise questions about Australia's gun law system, while raising no such questions about looser gun laws in the United States during December 15 and December 16 mentions of the Pennsylvania spree killing on Fox programs Fox & Friends, Fox & Friends First, The Five, On the Record, America's News Headquarters, Special Report with Bret Baier, Shepard Smith Reporting, The Real Story with Gretchen Carlson, or America's Newsroom.
Fox News personalities co-opted a fatal hostage situation in Sydney, Australia to justify torturing terror suspects.
Fox News devoted a mere 16 minutes to Benghazi the day of the House Select Committee's second hearing on the attacks, a congressional investigation the network invested years to create.
Right-wing media, and Fox News in particular, have exhausted more than 1,000 segments over the past two years in a breathless effort to manufacture a political controversy out of the 2012 attacks on U.S. diplomatic facilities in Benghazi, Libya that left four American personnel dead. The culmination of this slog of right-wing lies was the formation of the GOP-led House Select Committee on Benghazi, which the network had demanded.
As the committee held its second hearing December 10, however, Fox paid it little mind. The network never cut to broadcast the hearing live, as it's done many times before during previous Benghazi hearings. And between 6 am and 3 pm, Fox devoted only 16 minutes and three seconds to any discussion of Benghazi at all.
Many of those 16 minutes discussed Benghazi without acknowledging the ongoing hearing. The network devoted several minutes to discussing details from The Wall Street Journal on a recently released State Department review of security in Benghazi. Fox's mid-day talk show Outnumbered spent much of its airtime suggesting the Benghazi attacks would spell trouble for any Hillary Clinton presidential campaign (there remains no evidence to support this assumption). Outnumbered's Benghazi segment lasted nearly 9 minutes, accounting for more than half the network's Benghazi coverage for the day.
Happening Now, the 11 AM news show broadcast during most of the Select Committee hearing, ignored the topic of Benghazi altogether.
This apparent ennui regarding the Select Committee's endeavors comes on the heels of a November House Intelligence Committee report reaffirming that many of the Benghazi smears peddled by Fox and others were distortions of the truth or outright lies. Previous nonpartisan investigations have done the same.
Nevertheless, Fox News led up to Wednesday's hearing with a smattering of attacks on the Intelligence Committee report, suggesting it was "soft" on the Obama administration.
Methodology: Data based on a Snapstream search for "Benghazi" among Fox News Channel transcripts from 6 AM - 3 pm on December 10, 2014.
From the December 8 edition of Fox News' Happening Now:
Fox News revived a long debunked myth to inflate the number of long-term, sustainable jobs that would be created by the Keystone XL pipeline.
Conservative media attacked President Obama over a historic deal between China and the U.S. to reduce carbon emissions, claiming that the deal was a "cave" to China and that the U.S. got "steamrolled." But climate experts and others widely agree that the deal is an important step in the fight against climate change.
Fox News hosts Jon Scott and Heather Nauert suggested that California voters did not know what they were doing when they passed a ballot measure that will reduce criminal penalties and address unconstitutional overcrowding in the state's prisons.
On November 4, Californians voted to pass Proposition 47, known as the Safe Neighborhoods and Schools Act. As the Huffington Post reported, the measure would downgrade "nonviolent felonies like shoplifting and drug possession" to misdemeanors, an act that would lead to about "40,000 fewer felony convictions" and save the state "hundreds of millions of dollars on prisons" annually.
On the November 6 edition of Happening Now, hosts Heather Nauert and Jon Scott hosted a panel that included the author of Proposition 47 to discuss what the legislation would mean for California. Nauert suggested that those who voted for measure may not have known what they were doing. Asking "if the people who voted for that proposition knew what it was really all about," Nauert called its title "misleading" while Scott mused that "you do have to wonder" about it since "everybody wants safe schools and neighborhoods... but do they know what they were really voting for?":
But Fox's assessment of voters' inability to grasp what they were voting for ignores the wide-margin by which the measure passed. Capturing 58 percent of the vote, Proposition 47 proved widely popular with Californians at the ballot box.
Moreover, the new law will bring the California justice system in compliance with its constitutional obligations. In 2011, the Supreme Court ordered California officials to reduce its prison population, which had grown to unconstitutionally high levels after the state enacted a "three-strikes law" in 1994 that forces judges to sentence repeat offenders to prison for life. Writing for the majority, conservative Justice Anthony Kennedy determined that California's prison system resulted in "needless suffering and death" as a result of "serious constitutional violations." Kennedy continued:
Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the "primary cause of the violation of a Federal right," specifically the severe and unlawful mistreatment of prisoners through grossly inadequate provision of medical and mental health care.
California lawmakers were still struggling to address "severe overcrowding" in the state's prison system earlier this year, but Proposition 47 is one step towards getting the state in line with the Supreme Court's order while still ensuring that violent offenders remain in prison.
Nauert and Scott's comments are just the latest Fox attack on voters. The network has previously suggested that young women shouldn't vote, that young people should stay away from polls "if they don't know the issues," and that Americans should have to pass citizenship tests before gaining the right to vote.
On the second anniversary of Superstorm Sandy, Fox News promoted a plan called the "Hurricane Slayer," which works to cool ocean temperatures through geoengineering, without mentioning climate change or the role it played in exacerbating the devastating storm.
In late October 2012, Superstorm Sandy made landfall on the Atlantic seaboard bringing catastrophic damage and massive flooding exacerbated by rising sea levels due to global-warming. As global ocean temperatures continue to rise from man-made global warming, hurricanes are expected to become even more intense.
Fox made no mention of climate change or sea level rise during a segment on how to "lessen the impact of storms like Sandy" on the October 29 edition of Happening Now. Instead, Fox correspondent Doug Kennedy interviewed scientist Alan Blumberg about his plan to lower the intensity of future storms called the "Hurricane Slayer." Blumberg explained that his plan would use "tubular pumps" to bring cold water from deep in the ocean to cool the surface water and lessen the difference between ocean temperature and air temperature, which he explained is "key in lessening a [hurricane] wind's wrath":
Fox News is claiming that Democratic campaigns and supporters are vastly outspending their Republican counterparts during this election cycle, a suggestion that appears to focus on super PACs and ignores the influence of "dark money" spending that favors the GOP.
On the October 10 edition of America's Newsroom, host Bill Hemmer stated that Democrats have "got a lot of money ... and they're spending it, in some states, 4-to-1 over Republican candidates." National Review Online editor-at-large and Fox News contributor Jonah Goldberg repeated a similar claim on the October 13 edition of Happening Now, downplaying secretive right-wing donors like the Koch brothers and arguing that "the reality is, is that most of the money is actually on the Democratic side" in contentious Senate races like the one in Kentucky:
HEATHER CHILDERS (guest host): So, a lot of this also is coming down to money. And we are talking about big amounts of money that are being spent from both sides in these particular states, so how is that going to influence things?
GOLDBERG: Sure, well, it depends on state by state. You know, in some of these places, you just don't have enough physical airtime in the space-time continuum to buy more ads. I mean, people are throwing in -- you know, the Democrats are just announcing [unintelligible] a million dollars into South Dakota. A million dollars probably would buy, you know, who knows how much airtime in South Dakota at this point. And so you're seeing things saturated all over the place. One of the things that has helped Democrats enormously is, they have actually raised vastly more money than Republicans have at a lot of these different levels. They're spending a lot more money. In North Carolina, they're outspending Republicans, I think, 2-to-1, and yet they claim that it's all the evil Koch brothers and their sort of other James Bond-like villains who are throwing all the money into Republicans. When the reality is, is that most of the money is actually on the Democratic side, but a lot of the mainstream media covers it as if, "Oh, it must be the Republicans who are taking advantage of all of this outside money." [emphasis added]
On October 15, Fox News correspondent Jim Angle continued the network's inapt comparison of the Koch brothers to high-dollar Democratic donors. Angle didn't mention that unlike the progressive billionaires and unions he highlighted, conservative activists like the Kochs are unwilling to publicly stand behind the right-wing policies their billions of dollars fund.
Fox News' narrative is misrepresenting the full and current story on campaign spending, which actually shows that a deluge of undisclosed outside money is supporting Republicans and outpacing similar expenditures for Democrats -- especially in the Kentucky contest.
The 4-to-1 statistic that Hemmer used may be a reference to a widely cited report from The Wall Street Journal that found super PACs aligned with Democrats had raised four times more than their Republican counterparts. By focusing on super PAC figures, Fox News is ignoring massive spending from outside right-wing groups like the U.S. Chamber of Commerce, Fox News contributor Karl Rove's Crossroads GPS, and the Koch brothers' network of secretive and increasingly political groups. These organizations don't reveal their donors, and sometimes -- depending on the type of ad they are running -- they don't even reveal their expenditures. Groups of that sort have spent more "dark money" -- funds from undisclosed donors -- than Democratic-leaning groups have.
Fox News attempted to spin reports that some health insurance plans that do not meet minimum standards under the Affordable Care Act will be discontinued as a "new Obamacare bombshell" and death blow to the health care law.
The October 9 edition of America's Newsroom raised concerns over recent news that some health insurance plans not in compliance with the Affordable Care Act would be cancelled at the end of the year. Fox Business host Stuart Varney declared the cancellations to be a "political bombshell." The previous day, network host Shannon Bream called news of the cancelled plans a "new Obamacare controversy."
A headline on FoxNews.com declared that the canceled plans were evidence of an "Obamacare Death Knell":
Of course, the cancellation of plans that do not meet minimum coverage requirements was always a "part of the design of the health care law," as the New York Times explained, and meant to allow new insurance plans to be "more comprehensive and fair, with prices less variable by customers' ages and health status."
Last year, the Obama administration delayed the requirement that all plans cover a minimum standard of health benefits and medical bills, giving states the ability to allow insurers to extend existing plans that were not up to par -- something many states and insurance providers opted against. As the Washington Post reported, federal policy allows these non-compliant plans to continue through 2017 in some states, but some insurers are cancelling them now in favor of ACA-compliant plans.
Non-compliant plans which fall short of now-basic standards can be dangerous to the policy holder -- as studies show being underinsured carries many of the same risks as lacking insurance all together. As a spokesperson for the Department of Health and Human Services told the Post, those who may lose their non-compliant plans will "have access to better options through the health-insurance marketplace . . . [including] the opportunity to qualify for financial assistance to help them afford premiums and improved consumer protections."
Fox also ignored the realities of the insurance market -- these insurance plans may have been discontinued anyway. According to Georgetown University's Center on Health Insurance Reforms (CHIR), most consumers have year-long policies with health insurance companies that often changed at the end of the policy year, and "in most states insurers are allowed to increase premiums, increase cost-sharing, and/or reduce the scope of benefits covered."
Such phony outrage over discontinued plans is just the latest in Fox News' sustained campaign to undermine the ACA with misinformation, spin, and zombie lies -- despite news that the health care law has greatly reduced the nation's uninsured rate.
In coverage of President Obama's address to the United Nations General Assembly, Fox New figures complained that it took "18 minutes" for Obama to mention the Islamic State terrorist group, despite the fact that Obama referenced "terrorists in Syria and Iraq" in the opening minutes of his remarks, which centered around the threat of terrorism.
Fox News contributor Steve Moore dismissed President Obama's U.N. address on climate change arguing that terror threats are "a security reason for the United States to develop our own oil and gas," ignoring a decade of warnings from the U.S. military calling climate change a national security threat and a terrorism threat multiplier.
On September 23, President Obama spoke at the United Nations Climate Summit calling for a more "ambitious" agreement to tackle climate change globally.
During the September 23 edition of Happening Now, Fox contributor Steve Moore complained that "the president is talking about climate change and reducing our output of oil and gas, when if we want to undermine and destroy the finances of ISIS and other terrorist networks, we should produce as much oil and gas and hurt them in the pocketbook":
But Moore's recommendations only serve to increase the threat of climate change by increasing our dependence on fossil fuels and undermining United States energy security. A report from the Energy Security Leadership Council determined that the addressing "the economy's heavy reliance on petroleum" is the key challenge for achieving energy security in the U.S.
Military officials have also warned of the negative impact of climate change since 2003. Most recently, the U.S. Department of Defense released the 2014 version of their Quadrennial Defense Review (QDR) highlighting that "climate change poses another significant challenge for the United States and the world at large" and that its impacts are "threat multipliers" that "can enable terrorist activity." From the Review:
The impacts of climate change may increase the frequency, scale, and complexity of future missions, including defense support to civil authorities, while at the same time undermining the capacity of our domestic installations to support training activities.
The pressures caused by climate change will influence resource competition while placing additional burdens on economies, societies, and governance institutions around the world. These effects are threat multipliers that will aggravate stressors abroad such as poverty, environmental degradation, political instability, and social tensions - conditions that can enable terrorist activity and other forms of violence.
Moore, the Heritage Foundation's chief economist, also ignored a first of its kind statement from U.S. Treasury Secretary, Jack Lew, in which he labeled the threat of climate change as "one of the most important challenges of our time." Lew said during a September 22 interview on the economic costs of climate change, that "the economic cost of climate change is not limited to one sector of our economy. It threatens our agricultural productivity, our transportation infrastructure and power grids, and drives up the incidence of costly healthcare problems." Lew stressed that "global action is imperative, and it is a good investment in global economic growth."
Conservative media are claiming that unemployed Americans are "lazy" because they supposedly spend too much time "shopping" and not enough time working or looking for work. But the data they cite includes the activities of stay-at-home parents, students, people with disabilities, and retirees who are "not employed."
On September 8, fringe conservative website CNS News published an article claiming "an unemployed American is more likely to be shopping ... than to be looking for a new job. " The article ostensibly cited data from the American Time Use Survey (ATUS), an annual survey conducted by the Bureau of Labor Statistics (BLS). CNS claimed that "only 18.9 percent of Americans who were unemployed" engaged in job searches or job interviews on "an average day." Meanwhile, according to CNS, 22.5 percent of the "unemployed" engaged in shopping "for items other than groceries" on "an average day."
Unfortunately, CNS did not link to its internal data or provide methodology for its reporting, leaving readers to take the website's claims at face value.
Digging into the technical notes of the ATUS reveals that the BLS does not categorize individuals as "unemployed," but rather as "not employed." This distinction is important, as it includes individuals who fit the classification of being unemployed -- not working but actively looking for work -- as well as individuals who are "not in the labor force" for other reasons, including retirement, educational pursuit, and disability. So-called "discouraged workers," the small percentage of the population who involuntarily leave the labor force due to a lack of opportunity, would also count as "not employed" by ATUS classification.
CNS' insinuation that the so-called "unemployed" spend too much time engaged in non-work activities like "shopping" is based on a fatally skewed statistical error. But that fact has not stopped right-wing media outlets from using CNS' assumptions to fuel their campaign against the unemployed.
Fox News aired a deceptively cut clip of a speech President Obama gave to the American Legion to accuse him of blaming America's military for the threat posed by the terrorist organization known as the Islamic State (IS). But in his speech, Obama actually stressed that political differences in Iraq are driving this problem.
On the August 26 edition of Happening Now, Fox's Heather Nauert hosted the American Enterprise Institute's Danielle Pletka to scrutinize Obama's speech and overall approach to confronting IS. Fox played only a small portion from Obama's speech:
OBAMA: The crisis in Iraq underscores how we have to meet today's evolving terrorist threat. The answer is not to send in large scale military deployments that overstretch our military and lead for us, occupying countries for a long period of time and end up feeding extremism. Rather, our military action in Iraq has to be part of a broader strategy to protect our people and support our partners.
After playing the video, Nauert said, "it almost sounded like he was blaming our troops and past occupations for this terror crisis that we're dealing with." Quick to agree, AEI's Pletka asked, "why is he suggesting up front that the presence of American troops anywhere is what fosters extremism? That is extraordinarily offensive."