Even though President Obama has signed fewer executive orders than many of his predecessors from both political parties, Fox News has dedicated a significant amount of air time to suddenly questioning long-established presidential powers.
On February 18, Fox legal analyst Shannon Bream dedicated an entire segment to Obama's supposed lawlessness in his rollout of the Affordable Care Act (ACA) on Special Report with Bret Baier, highlighting the "Stop This Overreaching Presidency" or "STOP" resolution, an effort by congressional Republicans to "institute legal action to require the President to comply with the law." Experts more familiar with federal litigation and the U.S. Constitution have noted, however, that these sorts of lawsuits can only be filed in real cases or controversies where a plaintiff has actually suffered a legally cognizable harm. As explained by the Legal Information Institute of the Cornell University Law School:
Legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes (see Case or Controversy). Only those with enough direct stake in an action or law have "standing" to challenge it. A decision that a party does not have sufficient stake to sue will commonly be put in terms of the party's lacking "standing".
Fox News contributor Dennis Kucinich was included in the segment and floated "impeachment" as an alternative.
It might be difficult to find "an individual or business owner who could point to concrete damage he has or will suffer because of the president's unilateral changes to the health care law," as Bream suggests, because the changes to the law have served to ease implementation of the ACA. Those in search of the requisite legal standing to challenge the extension of deadlines run into the problem that this phased-in enforcement of the law is to benefit companies and consumers, not to "damage" them. Conservative Senator (and former Supreme Court clerk) Mike Lee explained this to The Weekly Standard: "It's not immediately apparent to me who it is that would have standing to show that they would be injured by this ... The people directly affected by the employer mandate are employers. But I would imagine that the administration would argue, if sued on this by an employer ... 'You can't show you've been injured by this. We're letting you off the hook.'"
Fox News continued to push the false narrative that the Obama administration politicized early intelligence assessments about the Benghazi attack by purporting to provide "new data points" which are contradicted by the findings of a bipartisan Senate Select Committee on Intelligence report released in January.
On February 13, Shannon Bream introduced a report from Fox national security correspondent Catherine Herridge by saying, "Tonight, two new data points in the Benghazi timeline [are] raising new questions about whether early intelligence was indeed politicized." Herridge began her report by claiming CIA leadership had been informed twice that the anti-Islam video "played no role" in the Benghazi attack, before former UN Ambassador Susan Rice appeared on the Sunday news shows and provided information about the attack based on talking points that represented the best assessment of the intelligence community at the time.
But nowhere in the segment is there evidence that anyone was told that the anti-Islam video had no role in inspiring the Benghazi attack. Instead, Herridge presents evidence and quotes from Republican lawmakers that there was no demonstration that took place before the attack -- which is not the same thing.
The very Benghazi report Herridge cites in her appearance contradicts her claim that the video "played no role." The Senate Select Committee on Intelligence's findings and recommendations in the report included the following:
Some intelligence suggests the attacks were likely put together in short order, following that day's violent protests in Cairo against an inflammatory video, suggesting that these and other terrorist groups could conduct similar terrorist attacks with little advance warning.
That finding from the Senate committee report lines up with the talking points drafted in the aftermath of the attack, which said that the attack was "spontaneously inspired by the protests at the U.S. Embassy in Cairo" -- protests that were a response to the anti-Islam video.
Considering that Fox's "new data points" do not actually provide any new information, the charges of intelligence politicization fall flat. The New York Times had a journalist who arrived at the Benghazi diplomatic facility as it was being attacked, and learned about the anger at the video from some of the attacks there.
The Benghazi report cited by Herridge also found that "there were no efforts by the White House or any other Executive Branch entities to "cover-up" facts or make alterations for political purposes" -- a fact that she chose to left out.
From the February 12 edition of Fox News' Special Report with Bret Baier:
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A day after civil rights organizations asked right-wing media to curb their misinformation and racially charged rhetoric, Fox News rejoined other conservative outlets in the smear campaign against Debo Adegbile, senior counsel to the Senate Judiciary Committee and President Obama's highly-regarded pick to head the Department of Justice's Civil Rights Division.
In a January 31 report posted to FoxNews.com, legal correspondent Shannon Bream contributed to a post that cited mysterious "critics" of Adegbile's supposed "outside the mainstream" approach to the law. The report did not mention that the criminal defense work he did to overturn an unconstitutional death sentence on appeal has been commended by the American Bar Association, members of the U.S. Supreme Court Bar, and the National Organization of Black Law Enforcement Executives (NOBLE). From FoxNews.com:
Adegbile has been described by critics as "radical," "dangerous" and "outside the mainstream."
Obama nominated Adegbile to head the Justice Department's Civil Rights Division.
However, he is now facing increased criticism for his role in getting convicted cop-killer Mumia Abu-Jamal's death sentence overturned during his time as a practicing attorney with the NAACP Legal Defense and Educational Fund.
Abu-Jamal was convicted in 1981 of killing Philadelphia police officer Daniel Faulkner.
Maureen Faulkner says she's "outraged" by Obama's decision to nominate Adegbile to the post.
Maureen Faulkner isn't the only one casting doubt on the nomination.
The Fraternal Order of Police recently sent a letter to Obama opposing Adgebile's possible appointment.
"This nomination can be interpreted in only one way: it is a thumb in the eye of our nation's law enforcement officers," Chuck Canterbury, president of the police group, wrote in a letter addressed to Obama.
Right-wing media are misinforming about a recent Supreme Court injunction that allows the non-profit charity Little Sisters of the Poor to continue its objection to the Affordable Care Act's (ACA) contraception mandate, as they appeal a lower court opinion that rejected their legal challenge.
In its January 24 order, the Court pointed out that the ruling "should not be construed as an expression of the Court's views on the merits." In other words, the nuns haven't won their lawsuit -- the Court has not issued an opinion regarding whether or not their First Amendment rights have been violated. Interestingly, although the order stipulated that the nuns would no longer have "to use the [original] form prescribed by the Government," in order to register their objection, they still must "inform the Secretary of Health and Human Services in writing that they ... have religious objections to providing coverage for contraceptive services."
But this preservation of the status quo hasn't stopped right-wing media from framing the case as a big win for Little Sisters. In a January 27 segment on Fox's Special Report, host Bret Baier "chalk[ed] one up for David against Goliath." National Review Online at least acknowledged the meaning of the Court's order, but still crowed about the nuns' "big procedural victory." In a recent editorial, The Wall Street Journal went further, not only calling the case a "victory" for Little Sisters, but also a "rebuke to the Obama Administration's bullying conception of religious liberty":
[T]he permanent stay pending appeal, issued late Friday by the full Supreme Court with no recorded dissent, was rarer still -- and a rebuke to the Obama Administration's bullying conception of religious liberty.
The Little Sisters sued because they believe the form they must sign to supposedly exempt themselves from the mandate instructs others to provide contraceptives and abortifacients in their name, and thus violates their faith and the First Amendment. Nearly all of the lower courts that are adjudicating the 91 lawsuits challenging the rule gave religious organizations a reprieve, but the Tenth Circuit Court of Appeals did not for the Little Sisters.
The Justice Department also argued that this order of Catholic nuns who run a Colorado nursing home and hospice should be forced to comply. You might call it a war on religiously devout women.
2013 was an epic year of right-wing media misinforming the public on the health care debate, particularly on women's health issues. Ignoring women's health experts, conservative media spent this year stoking fears about everything from birth control to maternity care, ignoring science, distorting state and federal regulations, and demonizing women's health care options in the process. These are the top six scare tactics from 2013.
Conservative media outlets have repeatedly asserted that the Employment Non-Discrimination Act (ENDA) - federal legislation that would ban employment discrimination against LGBT workers - discriminates against Christian businesses, but a new report from PolitiFact has rated that claim "False."
On December 16, PolitiFact evaluated a fundraising email from the Traditional Values Coalition (TVC) which claimed that ENDA would unfairly punish Christian businesses. PolitiFact rated TVC's claim "false," noting that ENDA includes religious exemptions that are actually more generous than those contained in other federal non-discrimination laws.
PolitiFact also noted that non-religious businesses operated by religious individuals have to comply with the law regardless of the business owner's faith (emphasis added):
Under Title VII [of the Civil Rights Act of 1964], and therefore under ENDA, religious organizations, which need not be church-run, would be exempt. Additionally, all businesses with fewer than 15 employees are exempt, whether they're religious or not.
Nelson Tebbe, a professor at Brooklyn Law School who specializes in religious liberty, said ENDA's religious exemption exceeds Title VII's.
"It's broader because the religious exemption in Title VII only allows religious organizations to discriminate [against LGBT individuals] on the basis of religion," he said. But it doesn't allow religious groups to discriminate based on factors like an employee's gender or race.
So by permitting religious organizations to discriminate on the basis of sexual orientation and gender identity, ENDA allows them more flexibility than Title VII.
The bill's religious exemption indicates that churches, church-run initiatives and other religious businesses need not comply by employing people of all sexualities and gender identities. And there's no special negative treatment for Christians.
Businesses of any religion could qualify for the exemption. Individuals of any faith who oppose sexuality would have to abide by the law, so no religion is singled out.
We rate this claim False.
The myth that ENDA would discriminate against Christian businesses has been widely debunked, but that hasn't stopped the lie from gaining prominence among right-wing media outlets.
A senior attorney for Alliance Defending Freedom (ADF), a far-right legal organization beloved by Fox News personalities, cheered India's Supreme Court for reinstating that country's ban on gay sex, calling the decision a model for the United States. ADF's support for the decision came a week after Fox host Bill O'Reilly praised the group on-air.
On December 11, India's Supreme Court restored a colonial-era law banning "carnal intercourse against the order of nature." The ruling overturned a 2009 ruling by the Delhi High Court finding the law unconstitutional. Under the 1861 statute, gay sex is punishable by a fine and up to 10 years in prison.
Benjamin Bull, executive director of ADF Global, gave a December 12 interview with the news service of the anti-gay hate group the American Family Association and applauded the decision. Bull contrasted the Indian ruling with the U.S. Supreme Court's 2003 Lawrence v. Texas ruling overturning anti-sodomy laws:
"When given the same choice the Supreme Court of the United States had in Lawrence vs. Texas, the Indian Court did the right thing," says Bull, which was choose to "protect society at large rather than give in to a vocal minority of homosexual advocates."
The net effect is to protect the integrity of the family and by extension to protect traditional marriage.
In the Texas case, the state's high court struck down sodomy laws in a 6-3 decision that affected similar laws in other states.
The Texas case "laid the groundwork for the invalidation of traditional marriage by a number of courts subsequent to that," the attorney explains.
The Indian Supreme Court saw what had happened there "and was wise enough not to want to go down that road."
"America needs to take note that a country of 1.2 billion people has rejected the road towards same-sex marriage, and understood that these kinds of bad decisions in the long run will harm society," he adds.
The language of the Indian statute is identical to that found in many other current and former colonies of the British Empire, including Belize. In that country, ADF has supplied lawyers to defend the criminalization of gay sex.
Undisturbed by the group's rabidly anti-LGBT positions, Fox News has long maintained a cozy relationship with ADF. In an interview on his December 2 show, Bill O'Reilly effusively thanked ADF senior vice president Doug Napier for his group's efforts to combat the manufactured "War on Christmas." "God bless you, each and every one," O'Reilly gushed. Before O'Reilly's sycophantic interview, Fox News contributor Erick Erickson solicited donations for the group. Meanwhile, Fox reporters Shannon Bream, Megyn Kelly, and Elisabeth Hasselbeck have hosted ADF lawyers for one-sided interviews on the imagined dangers of anti-discrimination laws protecting LGBT people.
With the ADF giving its full-throated backing to the Indian court ruling and urging the U.S. to "take note" of the development, the organization has again demonstrated that its claims of "defending freedom" are little more than an Orwellian fraud. The question is whether Fox will continue to play along; and based on its track record, it seems the answer is yes.
Alliance Defending Freedom (ADF) is a Scottsdale, AZ-based legal group committed to rolling back the rights of women and LGBT people on the grounds of "religious liberty." The organization has played a leading role in combatting marriage equality and non-discrimination policies in the U.S. while working internationally to criminalize homosexuality. Despite its rabid anti-LGBT extremism, ADF receives reliably friendly treatment from Fox News.
Established as the Alliance Defense Fund in 1994, ADF's founders include such religious right leaders as Focus on the Family's James C. Dobson and Campus Crusade for Christ's Bill Bright. According to ADF's website, the organization changed its name to Alliance Defending Freedom in 2012 to highlight its "enduring mission to gain justice for those whose faith has been unconstitutionally denied in the areas of religious liberty, the sanctity of life, and marriage and family."
Headed by President, CEO, and General Counsel Alan Sears, staffed by more than 40 attorneys, and boasting an annual budget in excess of $30 million, ADF bills itself as "a servant ministry building an alliance to keep the door open for the spread of the Gospel by transforming the legal system." As part of its effort to remake the American legal system along quasi-theocratic lines, ADF has:
ADF's relentless legal campaign against LGBT equality led the Southern Poverty Law Center (SPLC) to describe the organization as "virulently anti-gay." SPLC proved instrumental in exposing an aspect of ADF's work that the organization chooses not to tout on its website - its international work to criminalize homosexuality.
Fox News repeatedly conflated the emergency contraceptive Plan B (also known as the morning-after pill) with abortion while covering two Supreme Court cases brought by companies that object to the Affordable Care Act's (ACA) birth control coverage benefits. However, experts agree that the morning-after pill is not abortion -- it prevents pregnancy but cannot stop pregnancy after fertilization takes place.
Fox News correspondent Shannon Bream misleadingly claimed that filling the vacancies on the second-most important court in the country was less pressing than filling seats in so-called "judicial emergency" jurisdictions, while ignoring how Senate Republicans have contributed to those emergencies.
In a November 25 segment on Special Report with Bret Baier, Bream suggested that, because the D.C. Circuit is not classified as a "judicial emergency," there is no reason to quickly confirm President Obama's highly-qualified nominees to that bench, such as Georgetown Law Professor Cornelia "Nina" Pillard:
BREAM: Critics say there is no reason for the president to insist these nominees, including Pillard, be approved as quickly as possible. Across the country there are four federal appellate courts so lacking in judges that there are, quote, "judicial emergencies." And this court, the D.C. Circuit, it's not one of them.
But the body that determines these "judicial emergencies," the U.S. Judicial Conference, has recommended that the D.C. Circuit retain its 11-judge complement, a capacity the current GOP filibusters are preventing.
In response to Senate Democrats invoking the so-called "nuclear option," right-wing media advanced a number of myths not only about filibuster reform, but about the qualifications of President Obama's nominees who have languished in the confirmation process. What right-wing media have ignored is that Democrats used the "nuclear option" only after unprecedented GOP obstruction prevented Obama's judicial and executive nominees from receiving an up-or-down vote.
Absurd smears against a highly-qualified judicial nominee for her support of family planning, sex equality, and conservative attempts to dismantle gender stereotypes made the jump from right-wing blogs to the Fox News Channel.
On November 25, Fox News' Shannon Bream correctly reported that the former Connecticut attorney general, among a wide collection of bipartisan legal experts, supports the nomination of the eminently qualified Georgetown Law Professor Cornelia "Nina" Pillard to the U.S. Court of Appeals for the D.C Circuit. Unfortunately, Bream proceeded to repeat right-wing media myths accusing Pillard of "radical feminis[m]" and hosted National Review Online contributor Carrie Severino to recycle the smears. From America's Newsroom, with co-host Martha MacCallum:
MACCULLUM: What are the critics saying that are opposed to her?
BREAM: Well they say she is way out of the mainstream and she deserves a lot of scrutiny. Here's a bit of what she has said when writing about abortion issue. Here's a quote from one of her articles: "Anti-abortion laws and other restraints on reproductive freedom not only enforce woman's incubation of unwanted pregnancies, but also prescribe a 'vision of the woman's role' as mother and caretaker of children in a way that is at odds with equal protection." Here's Carrie Severino of the Judicial Crisis Network.
SEVERINO: Nina Pillard is probably the most extreme judge that has been nominated for this court and possibly for any court in the country. She has a very radical track record as a law professor, really seems to view everything from a radical feminist perspective, down to thinking that abstinence education violates the Equal Protection Clause and feeling like women are being objectified as breeders in the country.
BREAM: She has used that word referring to women as breeders if they are forced to carry pregnancies that they don't want to have. But at this point it looks like there is no blocking her, it is likely she will take a seat on that very important court.
Since Pillard was nominated, she has been subjected to sexist, retrograde, and false accusations that her views on reproductive rights are not in the mainstream. In fact, they are based on decades-old constitutional law, including a decision written by arch-conservative former Chief Justice William Rehnquist.
For example, the quote that Bream yanked out of context from a 2007 academic article in which Pillard noted that "antiabortion laws and other restraints on reproductive freedom not only enforce women's incubation of unwanted pregnancies, but also prescribe a "vision of the woman's role" as mother and caretaker of children in a way that is at odds with equal protection[,]" is an explicit reference to the fact that justices on the Supreme Court have already incorporated equal protection principles into their reproductive rights precedent. Unmentioned by Bream, the quote was part of a discussion of the 1992 decision of Planned Parenthood of Southeastern Pennsylvania v. Casey, which reaffirmed the constitutionality of Roe v. Wade.
The notion that damaging gender stereotypes can be at the core of restrictions on reproductive rights is also based on long-standing constitutional precedent.
Fox News' Shannon Bream and Megyn Kelly continued the network's general defense of anti-gay discrimination in separate reports on a New Mexico Supreme Court ruling concerning a photographer who was sued after refusing to photograph a same-sex commitment ceremony. Bream omitted critical context from the court's decision while Kelly pondered its slippery-slope implications, tactics in keeping with Fox's history of inaccurate and offensive reporting on the case.
In August, the New Mexico Supreme Court ruled unanimously that Elane Huguenin -- owner of Elane Photography -- violated New Mexico's anti-discrimination law when she refused to photograph the commitment ceremony of a same-sex couple. Huguenin filed an appeal of the decision to the U.S. Supreme Court last week.
In the eyes of Special Report's Bret Baier, the central issue for the Court to consider in the case is "whether you must check your religious values at the door when you open a business," as he stated on the November 12 program. He then aired a package regarding the case by correspondent Shannon Bream, who did not explain the constitutional basis for the court's ruling, but instead cited only the concurring opinion's general reference to "the legal rights" of the same-sex couple.
The segment heavily featured the Huguenins' attorney, Alliance Defending Freedom (ADF) senior counsel Jordan Lorence. Lorence accused the court of dictating that "once you agree to enter the workplace, the marketplace, you surrender all your constitutional rights."
Despite Fox's suggestion otherwise, this case does not concern religious freedom. The court held that because Elane Photography chooses to offer services to the public, it is engaged in commercial conduct that can be regulated by the state, and so it must comply with the state's Human Rights Act. Just as these businesses may not discriminate based on race or gender, it is likewise a violation to discriminate based on sexual orientation:
We conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the NMHRA and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.
The purpose of the NMHRA is to ensure that businesses offering services to the general public do not discriminate against protected classes of people, and the United States Supreme Court has made it clear that the First Amendment permits such regulation by state. Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable anti-discrimination laws.
Fox News lent credence to True the Vote's fearmongering over Obamacare and voter registration during the network's 2013 election night coverage, never acknowledging the extremist nature of the tea party group.
When signing up for health insurance on the HealthCare.gov exchanges created by the Affordable Care Act (ACA), customers are prompted with the option to register to vote. This is due to the 1993 National Voter Registration Act, which requires state agencies engaged in public assistance to offer voter registration services, including the state and federally-run exchanges.
According to True the Vote (TTV), an activist tea party group which describes itself as an election watchdog organization, the registration option will "corrupt" voter rolls and lead to "bogus voter registrations." As evidence, the group links to a report from Demos, a liberal think tank, detailing how many Americans could potentially register to vote because of the ACA. True the Vote's theory is that health care navigators like Planned Parenthood -- organizations that assist people in exploring their insurance options in the exchanges -- will use the registration information "in political activities."
A November 5 Special Report package treated True the Vote's conspiracy theory as a damning revelation. Host Bret Baier introduced the segment by saying, "The president's plan is not just about making sure everyone has insurance. There is also a not-so-subtle political objective."
Fox correspondent Shannon Bream then profiled True the Vote's concerns, featuring TTV president Catherine Engelbrecht's claims that "the implications of this are mind-blowing."
BREAM: Pursuant to the National Voter Registration Act, state agencies that provide public assistance are also required to give applicants the opportunity to register to vote. A number of states believe that includes the health care exchanges. ... The Demos document also stresses that navigators be trained to walk applicants through the voter registration process, but it's the navigators critics are worried about, saying groups with partisan agendas like Planned Parenthood shouldn't be handling voter information. True the Vote, which calls itself a citizen-led organization aimed at restoring integrity to the U.S. election system, says it's been unable to get any answers about how the voter registrations are being transmitted or verified. And worries about the potential for confusion.
What Fox never admits is that True the Vote is a discredited organization with a partisan agenda.