In a blog post yesterday, National Review Online's Carrie Severino attempted to downplay two decisions by the U.S. Court of Appeals for the Fourth Circuit that threw out challenges to the Affordable Care Act.
Severino wrote: "Both decisions rest on grounds that will not affect the other appellate decisions now en route to the Supreme Court." However, Severino obfuscated the fact that two of the three judges also said that the challenged portions of the Affordable Care Act were valid under the Constitution, while the third judge declined to say one way or the other.
In Liberty University, Inc. v. Geithner, a two-judge majority said it did not have jurisdiction over the case, because of a federal statute, the Anti-Injunction Act, that bars lawsuits "for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." The majority ruled that the law constituted a tax for purposes of the Anti-Injunction Act and dismissed the case.
Unmentioned by Severino, however, was that one judge, Andre Davis, dissented and wrote that "both the individual and employer mandates pass muster as legitimate exercises of Congress's commerce power." In doing so, Judge Davis arrived at the same result as Judges Jeffrey Sutton and Boyce Martin on the U.S. Court of Appeals for the Sixth Circuit, which upheld the Affordable Care Act. Davis also joined dissenting Judge Stanley Marcus on the U.S. Court of Appeals for the 11th Circuit, who also wrote that the law was unconstitutional.
But that's not all: one of the two Fourth Circuit judges who joined the majority decision dismissing the case, Judge James Wynn, wrote that the dissent's position that the law was constitutional under the Commerce Clause "is persuasive." Wynn also stated that the Affordable Care Act was constitutional for another reason: It was a legitimate exercise of Congress' taxing power.
In a concurring opinion, Wynn said: "[W]ere I to reach the merits, I would uphold the constitutionality of the Affordable Care Act on the basis that Congress had the authority to enact the individual and employer mandates under its plenary taxing power."
So, to the extent that the Supreme Court places any significance on the views of lower court judges, a majority of the lower court judges who have decided the issue have said that the Affordable Care Act is constitutional.
Right-wing media have continued their long history of attacking President Obama's speeches by scrambling to criticize his September 8 address in which he proposed the American Jobs Act.
National Review Online blogger Ed Whelan attacked the Justice Department's Civil Rights Division for assigning two gay attorneys to the team of attorneys working on Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case in which the Supreme Court will address the extent to which religious organizations can engage in discrimination without running afoul of sex discrimination law.
In a blog post, Whelan quoted discredited research from Pajamas Media to attack one of the attorneys, Aaron Schuham, for his previous position with Americans United for Separation of Church and State, an organization dedicated to preserving the Establishment Clause of the First Amendment.
But Whelan then went a step further, stating that Schuham has a "same-sex partner [who] is ... Chris Anders, federal policy director for the ACLU's LGBT Rights project." Whelan further reported that another Justice Department attorney working on the case, Sharon McGowan, "was also a staffer on the ACLU's LGBT Rights project" and that she is married to a woman who is "the Family Equality Council's 'federal lobbyist on gay, lesbian, bisexual and transgender family issues.' "
Whelan then used this information to spin a conspiracy theory about the Justice Department possibly using the discrimination case as a step in their agenda to "have gay causes trump religious liberty":
Thus, insofar as personnel is policy,* it may well be that the Obama DOJ's hostility to the ministerial exemption in the Hosanna-Tabor case is part and parcel of a broader ideological agenda that would have gay causes trump religious liberty.
So, in Whelan's opinion, should all gay lawyers have been barred from working on a case that deals with the application of anti-discrimination laws to religious freedom, or just the ones who were previously gay-rights activists or have same-sex partners who are gay-rights activists? Or is it OK to assign gay lawyers to the case, but only if the Justice Department takes a position more to Whelan's liking? Whatever Whelan meant, it's a ridiculous argument.
In a National Review Online article, convicted fraudster Conrad Black became the latest member of the conservative media to attack billionaire investor Warren Buffett for calling for higher taxes on the rich, writing: "I am far from an iconoclast, but I am getting a little weary of Warren Buffett's posturing as a social democrat. He is a brilliant investor and a pretty good aphorist, and his shtick as friendly, folksy Uncle Warren, the Sage of Omaha, though a tired routine, has been an effective one."
Black also devoted space to bemoaning the fate of "run-of-the-mill millionaires": "The top one percent of American income-earners, as he is perfectly aware, a number that gets us pretty far down into the ranks of run-of-the-mill millionaires, pay 38 percent of federal personal income taxes, the lower 50 percent pay 3 percent, and nearly half of American families pay none."
A distinct mantra from far-right press critics in recent years has centered around the fantastic claim that not only do the media have a liberal bias, but that the corrupted press corps works in unison with the Obama White House at all times; that the press no longer functions independently but that its role is to protect Obama at all costs.
The result of the grand media conspiracy? The press has refused to ask Obama tough questions.
Not only has Fox News — the supposed mouthpiece of the GOP — put on a far, far, far better debate than CNN did (or MSNBC could), it has subjected the GOP contenders to tougher, rougher, questions than any debate I can remember. In fact, I don't think Obama ever received this kind of grilling as a candidate or as president.
Goldberg and Hannity don't think Obama has ever received a press grilling, even as a candidate in 2008. What do they think was missing from the questioning of Obama back then? Inquiries about Jeremiah Wright? William Ayers? Controversial comments that Obama had made on the campaign trail?
Well, a simple Google search produces this instant result, from a Howard Kurtz column in the Washington Post, April 18, 2008:
The ABC moderators found themselves under fire for focusing on campaign gaffes and training most of their ammunition on Obama.
In the first 40 minutes of Wednesday's two-hour Democratic debate, the moderators asked Obama about his remarks that small-town residents bitterly cling to guns and religion; the inflammatory sermons of the Rev. Jeremiah Wright ([George] Stephanopoulos follow-up: "Do you think Reverend Wright loves America as much as you do?"); why Obama doesn't wear an American flag pin; and his relationship with William Ayers, a former Weather Underground radical who has acknowledged involvement in several bombings in the 1970s.
But right, Obama hasn't been grilled by the press.
Right-wing media have falsely claimed that "unions and left-wing groups" spent roughly $30 million, or have otherwise ignored money spent by conservative groups, to influence the recent Wisconsin recall elections. In fact, about $30 million was reportedly spent by right-wing and left-wing groups combined, "with a slight edge possible to Republicans overall."
Echoing Pat Buchanan, National Review's John Derbyshire said that in certain respects, he is "on the same page" as alleged Norwegian terrorist Anders Behring Breivik.
During the July 29 edition of his National Review podcast, RadioDerb, Derbyshire (who has repeatedly made racially inflammatory comments in the past) said of Breivik's 1,500 page manifesto (which cites Derbyshire): "The upshot of the manifesto is that Breivik thinks European civilization is under threat of being swamped by Muslims and other incompatibles. A great many people think that, including me and a lot of my friends and colleagues."
Even Derbyshire's disclaimer that he doesn't agree with Breivik's decision to resort to violence was offensive. Derbyshire stated that it is wrong to "start murdering those responsible for" the threat to European civilization and their families. Listen to an excerpt of Derbyshire's comments:
DERBYSHIRE: [Breivik] kept a diary and has explained himself in a long, rambling manifesto. I note with interest that my name turns up in that manifesto. I hasten to say that this is not a great distinction. Some of my friends and colleagues are in there too -- Mark Steyn, for example. The manifesto is more than 1,500 pages long. And big slabs of it are just lifted from the writings of various anti-multiculturalist bloggers, all of whom have indignantly denied any affiliation with Breivik.
The upshot of the manifesto is that Breivik thinks European civilization is under threat of being swamped by Muslims and other incompatibles. A great many people think that, including me and a lot of my friends and colleagues.
Breivik further believes that Europe's ethno-masochist leftists, nursing as they do views like Tom Hayden's, are actively working to make this happen. I agree with that too. So far as what's happening is concerned and who's making it happen, I'm on the same page as Anders Breivik and so are a great many Western conservatives.
Breivik also thinks, however, that matters have gone so far that the only hope of stopping the trend is to start murdering those responsible for it and members of their families, including their children. I don't think that and neither, of course, does Mark Steyn or Robert Spencer or anyone else I know in the anti-multiculturalist corner of the political right.
And if you think this is disgusting, thinly-veiled racism, you haven't heard the half of it.
Conservative media are promulgating the myths that higher fuel economy standards are unattainable with current technology, will cost consumers and will increase traffic deaths. In fact, automakers have said they will be able to meet the standards, consumers will net thousands in fuel savings, and safe cars in a variety of sizes will continue to be produced.
Right-wing media have repeatedly claimed that President Obama had "no plan" about how to lower the nation's deficit and reach a compromise to resolve the default crisis. But Obama had reportedly agreed to specific reforms and spending cuts, including to entitlement programs, in talks with Speaker John Boehner (R-OH) before Boehner walked away from those negotiations.
Before there was any evidence of who was responsible for the terrorist bombing and shooting in Norway, mainstream media outlets rushed to finger Muslims and Muslim groups as potential perpetrators and listed grievances that radical Muslims had against the country. Norwegian officials have since said that a non-Muslim was responsible for the terrorist acts.
Following the terrorist attacks in Norway by anti-Muslim fundamentalist Anders Behring Breivik, the right-wing media have leapt to defending their own Islamophobic response to the attacks, often by making absurd claims like calling Breivik a "jihadist."
Mark Krikorian, who we last saw bashing naturalized Americans and the children of immigrants in order to argue that the United States should close its borders to immigrants, is at it again. On Monday, to make his case for reducing future immigration, he warned against Islam and Muslims living in the United States.
Writing on the website of National Review, Krikorian attacked Islam as "a unique danger to our Republic" and advocated for "the use of undercover agents to infiltrate" mosques and Muslim organizations "and track their activities." He concluded: "If a large and growing Muslim population represents a threat to liberty -- and I believe, with [Herman] Cain, that it does -- then that's yet another reason to reduce future immigration."
From his July 18 blog post on National Review Online's The Corner:
I'm the last person to defend Islam, and I'm not doing so now, but Cain is clearly wrong. Yes, of course, Islam is more than just a spiritual system -- it's also a political system, a system regulating economics, war, the subjugation of infidels, personal hygiene, and every other aspect of life. And of course radical elements -- i.e., orthodox Muslims -- are behind the construction of many, if not most mosques in the West. Both of these facts make Islam a unique danger to our Republic and are arguments for enhanced scrutiny of mosques and all Muslim organizations, the use of undercover agents to infiltrate them and track their activities, a resumption of the use of ideological exclusion in visa and immigration matters, and the categorical rejection of all special demands, whether wearing a hijab in a driver's license photo or giving legal authority to sharia courts in family-law matters.
But -- if Muslims want to build a gathering place, consistent with normal zoning and fire-safety laws and the like, where they just worship and break bread with their fellows, they have every right to do so; suggesting otherwise is dangerous folly, cutting down the law to get after the devil. If a large and growing Muslim population represents a threat to liberty -- and I believe, with Cain, that it does -- then that's yet another reason to reduce future immigration. But once you admit people, we're bound to judge them individually, by the same yardstick we use for everyone else.
Krikorian previously asserted that the only way to produce " 'moderate' Islam" in countries like Iran is to wholly separate Islamic societies from the West and allow a "tsunami of violence" to overtake the people living under "Islamic regime[s]." Indeed, while discussing the future of Islam in an NRO post, Krikorian wrote that Islam is "a failure as an ideology and way of life in the modern world," adding that "[o]ur long-term strategy, then, should be to create two, three, many Islamic republics, each one inevitably an example of Islam's bankruptcy."
Despite his extremist views about immigrants and his anti-immigration stance, numerous media outlets, including NPR, The New York Times, and ABC News, believe that Krikorian is a worthy voice in the immigration reform debate.
In at least 40 instances since the beginning of 2011, conservative media outlets wrongly told consumers that the light bulb efficiency standards scheduled to take effect in 2012 will require them to use compact fluorescent light bulbs (CFLs).
Hope springs eternal. Despite more than a year of fruitless digging, the right-wing media can't let go of their hope that Supreme Court Justice Elena Kagan will be disqualified from hearing cases about the constitutionality of the Affordable Care Act.
Recently, conservative media have been hyping letters from House Judiciary Committee Chairman Lamar Smith (R-TX) as well as 49 other congressional Republicans seeking documents to determine if Kagan was involved with health care litigation during her time as solicitor general (the position she held immediately before being appointed to the Supreme Court).
Conservative media don't bother hiding the reasons for hoping that Kagan must be recused. As Judicial Watch head Tom Fitton wrote on BigGovernment.com, "The U.S. Supreme Court will ultimately settle the issue regarding whether or not Obama's socialist healthcare overhaul will be the law of the land. Everyone knows it. And if Elena Kagan is forced to recuse herself from hearing the case that will be one fewer dependably liberal vote on the Supreme Court for Obamacare."
In addition to Fitton's post on BigGovernment.com, HotAir.com's Ed Morrissey breathlessly hyped the 49 House members' letter, asking, "Did Elena Kagan mislead the Senate Judiciary Committee during her confirmation hearing when answering questions about her level of involvement in ObamaCare?" The Washington Times also hyped the same letter, as did Newsmax. And National Review Online blogger Carrie Severino and Glenn Beck's website TheBlaze.com hyped both the 49 House members' letter and Smith's letter.
But CNS News may take the cake for the most overwrought reaction. CNS reported that Smith had begun an "investigation" into whether Kagan had been involved in health care litigation as solicitor general. It subsequently had to append an "editor's note" to the article explaining that the House Judiciary Committee "requested a correction of the story" because Smith had not launched a "formal investigation" but had merely made a "request for addition information."
CNS's overreaction to Smith's letter to the Justice Department epitomizes the right-wing's campaign to have Kagan recuse herself from health care litigation. The right-wing media keeps demanding further inquiry into the issue of whether Kagan should recuse herself. The additional information shows that there is no reason for Kagan to recuse herself. But the right-wing media claims that all it needs is a little more information, and it will become clear that Kagan did recuse herself.
Below the fold is a brief recap of the right-wing media's recusal campaign so far.
NPR has decided that anti-immigration activist Mark Krikorian's nativist dogma is worthy enough to be a featured "point of view" in the immigration debate. Never mind that the entirety of Krikorian's solution to the issue involves a scheme where all unauthorized immigrants and their children, American citizens or not, would be given "90 days or ... six months" to "pack up your things ... resolve your affairs" and "go home."
On its website on Thursday, NPR thought to contrast Krikorian's extremist views with those of journalist Jose Antonio Vargas, who recently admitted he is an undocumented immigrant who has been in the United States since he was 12 years old. Vargas' take on immigration reform was highlighted in an interview with the station's Fresh Air program.
Krikorian, the executive director of "low immigration" think tank, the Center for Immigration Studies, and a columnist for National Review Online, explained why Vargas should leave the United States and why the DREAM Act shouldn't apply to immigrants like Vargas. From NPR:
"It's not so much that he's undocumented. It's that he's an illegal immigrant -- he had illegal documents," says Krikorian, the executive director of the Center for Immigration Studies, a think tank that advocates a "low immigration, high enforcement" immigration policy. "He came here as a child [but] ... he came here with an identity formed as a Filipino. In other words, he came at 12."
Vargas says he was inspired to write his article after the Senate failed to pass the Dream Act, which would have granted amnesty to people younger than 36 who arrived in the United States as children, have lived here for five years or more and are currently attending college or serving in the military.
But Krikorian says legislation like the Dream Act shouldn't apply to people like Vargas -- because he arrived in the United States at the age of 12.
"The moral case that you can make for the Dream Act -- or something like the Dream Act ... really only applies, it seems to me, to people whose identities have been formed here, who have no memory of any other country, who really are -- as some of the advocates sometimes put it -- are Americans in all but paperwork," he says. "This doesn't really cover a lot of the people who would be covered under the current version of the Dream Act, including Mr. Vargas. The man has real abilities and real skills, and he should go home to his country of citizenship, the country he grew up in for most of his childhood."
Krikorian further stated: "The strongest case you can make for something like the Dream Act is for people who prudence suggests we should allow [to] stay because their identities have been formed here. They really are, psychologically speaking, Americans."
So, according to Krikorian's ridiculous logic, a child who moves here around age 12 will never be, "psychologically speaking," American? I'm sure Madeleine Albright, Patrick Ewing, and a host of others who immigrated here as pre-teens, like me, would have something to say about that. But putting aside the absurd notion that there is a cookie cutter formula to national identity, Krikorian has maintained that immigrants are considered truly American only if they embrace "Anglo-conformity."