A Wall Street Journal op-ed by former Reagan and Bush administration lawyers David Rivkin Jr. and Lee Casey launches another in a series of legally suspect attacks on the constitutionality of the Affordable Care Act. But this new challenge to the constitutionality of the individual mandate, based on the Constitution's "Uniformity Clause," is so fanciful that even other conservative media question its validity.
Conceding that their argument has been "rarely considered," Rivkin and Casey nonetheless claim that because Roberts upheld the individual mandate under Congress' power to tax, it is now subject to the "Uniformity Clause," which requires the tax to "be uniform throughout the United States":
[B]y transforming the mandate into a tax to avoid one set of constitutional problems (Congress having exceeded its constitutionally enumerated powers), the court has created another problem. If the mandate is an indirect tax, as the Supreme Court held, then the Constitution's "Uniformity Clause" (Article I, Section 8, Clause 1) requires the tax to "be uniform throughout the United States."
[Al]though the court has upheld as "uniform" taxes that affect states differently in practice, precedent makes clear that a permissible tax must "operate with the same force and effect in every place where the subject of it is found," as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.
ObamaCare provides that low-income taxpayers, who are nevertheless above the federal poverty line, can discharge their mandate-tax obligation by enrolling in the new, expanded Medicaid program, which serves as the functional equivalent of a tax credit. But that program will not now exist in every state because, as a matter of federal law, states can opt out. The actual tax burden will not be geographically uniform as the court's precedents require.
But Rivkin and Casey neglect to mention that their argument has in fact been considered and rejected more than once since 1884. The Congressional Research Service concluded the argument presented "no constitutional issue" because the individual mandate would "satisfy the requirement of uniformity...on its face," pursuant to the more recent case of United States v. Ptasynski. That 1983 Supreme Court decision held that "it was settled fairly early that the [Uniformity] Clause does not require Congress to devise a tax that falls equally or proportionately on each State." Quoting from yet another Supreme Court opinion, Ptasynski further observed that "[t]he uniformity provision does not deny Congress the power to take into account differences that exist between different parts of the country, and to fashion legislation to resolve geographically isolated problems." As such:
Where Congress defines the subject of a tax in nongeographic terms, the Uniformity Clause is satisfied. See Knowlton v. Moore, 178 U.S. at 178 U. S. 106. We cannot say that, when Congress uses geographic terms to identify the same subject, the classification is invalidated. The Uniformity Clause gives Congress wide latitude in deciding what to tax and does not prohibit it from considering geographically isolated problems.
The National Review Online's Matthew Franck also found Rivkin and Casey's arguments unconvincing, noting that they did not consider (or quote) the rest of the 1884 Supreme Court case they cited:
But it's not at all clear that the choice of a state to opt out of a program that would make the alternative to paying the tax cheaper, or relieve affected persons of the taxpaying obligation altogether, renders the federal tax geographically non-uniform for constitutional purposes. All persons similarly situated-unable or unwilling to purchase health insurance, while obligated either to do so or to pay a tax-will be subject to the tax. The reasons for their being subject to the tax may be partly in the power of the state governments where they live-and the authority of states to make a choice that costs them something may itself be authorized by federal law-but that does not necessarily mean that the federal government has used its taxing power in a non-uniform manner. In the Head Money ruling itself, the Court held that the tax in question (if it really was a tax, and not an exercise of the commerce power-oh, how the world turns), a 50-cent charge on foreign passengers entering the country at American seaports, was not invalid by virtue of its not applying to foreigners entering the country over land by rail. "[T]he law applies to all ports alike," the Court observed, and added: "Perfect uniformity and perfect equality of taxation, in all the aspects in which the human mind can view it, is a baseless dream, as this court has said more than once."
Despite the apparent holes in Rivkin and Casey's arguments, supporters of the Affordable Care Act should not ignore them. Rivkin has a notable track record in moving off-the-wall legal arguments into the political mainstream, as he was among the first to suggest - similarly without any support in existing law -- that the individual mandate might be unconstitutional under the Commerce Clause.
From the December 3 edition of MSNBC's PoliticsNation:
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In noting President Obama's opposition to a Republican-promoted House bill allowing more skilled workers into the U.S., Wall Street Journal columnist Gordon Crovitz failed to mention the reason for Obama's opposition: The House bill eliminates a visa program for immigrants from countries with low rates of immigration to the U.S., and is too "narrowly tailored" to achieve Obama's goal of comprehensive immigration reform.
In a recent column, Wall Street Journal editorial board member James Taranto seized on a tribute to lifelong civil rights activist Lawrence Guyot written by the progressive Constitutional Accountability Center as an opportunity to attack the Voting Rights Act of 1965. But Taranto's criticism of the most effective anti-discrimination law in history ignores ample relevant history and case law.
Guyot passed away on November 22 at the age of 73. As a civil rights worker in the 1960s, he was beaten, jailed, and tortured for the voting rights and anti-segregation advocacy he undertook on behalf of African-Americans in Mississippi. In their tribute to Guyot, CAC noted that while current voter suppression is nowhere as violent as the tactics Guyot suffered, if unchecked by the Voting Rights Act, their effects still present discriminatory voting obstacles.
In his November 29 column, Taranto used CAC's Guyot obituary to attack Section 5 of the VRA, which Congress and federal courts have consistently reauthorized and utilized as essential for protecting the voting rights of millions of citizens who aren't white. Taranto also criticized the absence of extensive legal analysis in the obituary, complaining that it instead had "adjectives and adverbs," and more than one use of the word "iconic."
For a pair who work for something called the Constitutional Accountability Center, [Doug] Kendall and [Emily] Phelps don't have a lot to say about the constitution. Their defense of Section 5 is purely sentimental, with lots of intensifying adjectives and adverbs. Shelby County v. Holder, they exclaim, is "a monumentally important challenge to a key part of the Voting Rights Act, the iconic law for which for which [sic] Mr. Guyot shed blood."
Taranto, who cites a map and the Supreme Court brief for the Alabama county challenging the constitutionality of the VRA, focuses solely on the obituary to accuse CAC of not discussing the Constitution more in their tribute to Guyot. Yet Taranto fails to mention the extensive legal analyses and legal briefs CAC has written on the constitutionality of the VRA, all easily accessible on their website, as well as in other news outlets.
It is true that that CAC used the word "iconic" four times. It is also true that Taranto managed to write an entire column on the inappropriateness of Section 5 of the Voting Rights Act without once using the words Jim Crow, and only referencing voter suppression in quotes. Discussion of these topics is crucial to any analysis of the VRA.
Throughout his column, Taranto questions why only certain areas must get approval for changes to their election practices under the VRA. The answer is simple: even with the passage of the Fourteenth and Fifteenth Amendments to the Constitution following the Civil War, states of the Old Confederacy in the South refused to recognize equal protection and voting rights for African-Americans, through Reconstruction to the late Jim Crow era. From the U.S. Commission on Civil Rights' 1971 introduction to the 1970 VRA amendments:
Despite these constitutional protections [of the Reconstruction amendments], blacks in the South were virtually disenfranchised from the end of the Reconstruction Period until 1965, and members of other minority groups have also frequently been denied the right to vote.
It was not until the passage of the Voting Rights Act of 1965, however, that this right was extended to black people in the South in a meaningful way.
As Congress discovered more evidence of discrimination against racial, ethnic, and national origin minorities, more geographic areas were added to the scope of the VRA's anti-discrimination protections. Evidence of this discrimination can be shown by disproportionate effects or basic logic, which is why one appellate court recently found evidence of the former in South Carolina, and another appellate court utilized the latter to explain that if the predominant number of "young,...elderly and poor voters" affected by voter suppression in Texas are racial minorities, the VRA applies.
The reason that non-Southern areas remain uncovered by Section 5 of the VRA despite recent evidence of similar voter suppression is also unexplained in Taranto's column. States uncovered by the VRA do indeed engage in the same discriminatory tactics that have been overwhelmingly rejected in the courts. The answer to this omission is not complicated: it was difficult enough to pass the 2006 reauthorization of the Voting Rights Act during a Republican presidency, and as evidenced by current Republican obstruction, updating the VRA to cover additional areas has become increasingly unlikely.
Taranto was correct that CAC's obituary of Guyot did not go into a detailed legal analysis of whether the reauthorization of the VRA in 2006 was appropriate. If he wants to see their legal analyses, however, he can read the briefs they have filed in the case or he could read any of the many blogs and articles they have written on the issue. From the CAC's Text & History:
To anyone who takes the Constitution's text seriously, there are glaring holes in the conservative constitutional attack on the Voting Rights Act. Shelby County's primary argument is that the Act's preclearance requirement is outdated and unnecessary, given changes in Alabama (where Shelby County is located) and elsewhere, but the Constitution, in fact, assigns to Congress the job of deciding how to enforce the Constitution's ban on racial discrimination in voting.
It is certainly true that the coverage formula relies on decades-old data that has less relevance today. But, as the D.C. Circuit concluded, the formula was always less important than the jurisdictions it covered. Going all the way back to 1965, "Congress identified the jurisdictions it sought to cover - those for which it had 'evidence of actual voting discrimination' - and then worked backward, reverse-engineering a formula to cover those jurisdictions." And, as the record described by Judge Bates and Judge Tatel in Shelby County shows, these jurisdictions continue to be the worst offenders, consistently refusing to live up to the Constitution's promise of a multi-racial democracy.
Major papers, including The New York Times, The Washington Post, and The Wall Street Journal, are hiding compromises in a White House proposal on federal spending and budgets, claiming that the proposal was "loaded with Democratic priorities" and lacking in cuts. In fact the White House plan made many compromises, such as $400 billion in savings to entitlement programs that many progressives have opposed.
Reports by major media outlets, including The Wall Street Journal, The Washington Post, the Los Angeles Times, and CNN, are giving credence to Republicans' baseless attacks on Ambassador Susan Rice over statements she made in September appearances on Sunday morning political shows regarding an attack on U.S. facilities in Benghazi, Libya. In fact, Rice's remarks were based on the intelligence available at the time, and commentators from across the political spectrum agree that the attacks on Rice are inaccurate and driven by partisanship.
A Wall Street Journal editorial hid the relative health of Social Security, in order to argue that immediate cuts to the program should be part of any deficit reduction deal. In fact, economists say that Social Security is not a major driver of deficits. Unfortunately, mainstream media have not reported this fact, which has given the Journal cover to push for Social Security cuts.
Nobel Prize winning economist Paul Krugman has pointed out: "While the United States does have a long-run budget problem, Social Security is not a major factor in that problem." Social Security does face a shortfall between the revenue the program receives and the estimated benefits it will pay out beginning in 2034. But Center for Budget and Policy Priorities economist Kathy Ruffing has also noted that, far from being in crisis, Social Security's shortfall over the next 75 years would be almost completely restored by letting the Bush tax cuts expire for the wealthiest Americans.
Furthermore, the Congressional Budget Office has said that Social Security spending, which amounted to 4.69 percent of Gross Domestic Product, will rise only to 6.63 percent of GDP by 2086 if the program pays out full benefits. These facts have led economist Dean Baker to conclude that with regards to Social Security that "there is no plausible story in which our children or grandchildren will have to worry that there won't be anything there for them."
Nevertheless, the Wall Street Journal editorial board demanded that Democrats make immediate cuts to Social Security as the price for any deficit deal that raises federal revenues:
President Obama's re-election means that taxes for upper-income earners are going up one way or another. The Bush rates expire on December 31 unless Mr. Obama signs an extension, and he shows no inclination to do so except for anyone earning less than $250,000 a year ($200,000 if you're single). The question is how Republicans should handle this reality while staying true to their principles and doing the least harm to the economy.
Speaker John Boehner deserves some leeway to try to mitigate the damage by negotiating a larger tax reform.
All the more so if Mr. Boehner can also get Mr. Obama to agree to significant spending and entitlement reform. This means more than the usual suspects of cuts to doctors and hospitals and means-testing benefits for the affluent.
It means reforms -- dotted-line commitments, not promises -- that immediately reduce Medicare and Social Security liabilities, that terminate some discretionary programs, and that rein in such scandals as runaway Social Security disability payments.
Unfortunately, the Journal is not the only media outlet hiding the relative health of the Social Security program.
A November 25 Washington Post article on progressive resistance to conservative demands for Social Security cuts falsely claimed that Social Security's costs are "skyrocketing" and "fast-growing." In addition, a New York Times article reported that Republicans were pushing for Social Security cuts to restrain the deficit while the White House said the program "is not currently a driver of the deficit," but made no attempt to ascertain whether Republicans or the White House were correct.
And the Post and Times misleading reporting on Social Security provided the Journal cover to push for major cuts to the program.
As Chief Justice John Roberts receives end-of-year accolades for not striking down health care reform, The Wall Street Journal is mocking this "strange new respect" on its editorial page. But the WSJ's criticism is a thin veil for its clear preference that Roberts return to his conservative ideology, while failing to acknowledge Roberts' record as a clear conservative on issues like corporate power and civil rights.
The WSJ has already called Roberts' refusal to join his conservative colleagues on the Court and declare the Affordable Care Act unconstitutional "misbegotten." It is no surprise that a November 20 WSJ editorial treated with disdain the praise for Roberts's late switch, mocking his place on Atlantic Monthly's list of "Brave Thinkers" and being named one of Esquire's "Americans of the Year" along with actress Lena Dunham. From the editorial:
Chief Justice Roberts shares the Esquire honor with Lena Dunham, the star of an Obama campaign ad and the creator and star of the HBO series about 20-something sexual angst called "Girls."
She and the Chief Justice also make the Atlantic Monthly's list of "Brave Thinkers" of 2012, by which they mean thinkers who agree with the Atlantic's liberal editors. Ms. Dunham is praised for taking "the soft glow off the 'chick flick,'" for instance when her character acts "like an underage street hooker to turn her boyfriend on," while the Chief Justice gets credit for "maintaining the Court's legitimacy" with a ruling "both brave and shrewd." President Obama probably has Time's "Person of the Year" nailed down, but expect the Chief to finish a close second.
Such is the strange new respect a conservative receives for sustaining liberal priorities. Our own view is less effusive, and to expiate his ObamaCare legal sins, a fair punishment would be that he hire Ms. Dunham as a clerk.
Yet Roberts' conservative bona fides are well established, which makes the editorial seem like an exercise in "ref-working," essentially haranguing the Chief Justice to ensure future conservative behavior. In Roberts' case, this would not be a stretch. On issues of corporate power, the Roberts Court is unprecedented in its well-reported conservatism and has given the WSJ much to celebrate.
Similarly, Roberts' record on civil rights is sufficiently right-wing. With cases addressing affirmative action, voting rights, and marriage equality in the pipeline, the current docket gives him ample opportunity to return to the conservative fold. Excepting same-sex marriage (which has yet to be accepted for review), Roberts' positions on the other two issues - presented in Fisher v. University of Texas and Shelby County v. Holder - clearly parallel those of the WSJ.
The WSJ has characterized precedent affirming the constitutionality of race-conscious admissions policies in school desegregation efforts a "large legal mistake," and has called enforcement of the Voting Rights Act the "grossest kind of racial politics." The editorial board appears to have an ally in Roberts, who has already recorded his opposition to both affirmative action and the Voting Rights Act as Chief Justice. As Supreme Court expert Joan Biskupic has reported:
[T]he kinds of social policy issues that play to Roberts' true conservatism, such as affirmative action and other race-based remedies are on the agenda for the term that starts in October.
From his early days in the Reagan administration, Roberts has sought to roll back the government's use of racial remedies.[As Chief Justice, in] a 2006 case involving the drawing of "majority minority" voting districts to enhance the political power of blacks and Latinos, Roberts referred to "this sordid business (of) divvying us up by race." The following year, in a case involving school integration plans, he wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
On marriage equality, Roberts' position is more unpredictable, as he "has not yet voted in a major gay rights case." The WSJ, on the other hand, has already preemptively declared as "activist" any Court decision finding unequal restrictions on same-sex marriage unconstitutional. But both liberal and conservative reporting has questioned whether Roberts would join the WSJ's aversion to a constitutional right to marriage for all, irrespective of sexual orientation. Perhaps this is where the WSJ's pressure is most directed, out of fear that Roberts does not want to be on the wrong side of history.
Ultimately, regardless of the reasons behind the WSJ's attempt to embarrass the Chief Justice of the Supreme Court, it might consider the reflections of conservative federal Judge Richard Posner on the "serious mistake" of right-wing media attacks against Roberts. From an interview with NPR:
"Because if you put [yourself] in his position ... what's he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, 'What am I doing with this crowd of lunatics?' Right? Maybe you have to re-examine your position."
The Wall Street Journal editorial board debunked what it labeled "talk radio myths" about immigration in order to promote efforts from some Republican leaders to appeal to Hispanic voters. But the myths haven't been limited to "talk radio" -- fellow News Corp. outlet Fox News has spent years propagating many of these same false claims.
In the wake of the presidential election, National Review Online's Ed Whelan made it clear that the country can expect more of the unprecedented right-wing opposition of the past four years to President Obama's judicial nominees. However, news outlets often neglect this obstructionism and ignore the role of the GOP and conservative media in creating "judicial emergencies" where courtrooms across the country suffer from vacancies on the bench, an omission highlighted by a prominent judicial nominations expert.
Fresh off of ascribing a lack of virtues to the majority of the nation who re-elected the president, conservative legal analyst Ed Whelan urged the Republican party on November 8 to redouble its efforts in blocking judicial picks by expanding the obstruction to any and all Supreme Court nominees. In the NRO blog, Whelan wrote:
I'm surprised to see, in [a November 8] Wall Street Journal article, that one conservative legal commentator has opined (according to the article's paraphrase and internal quote) that "[b]ecause Republicans lost the presidential election and a couple of Senate seats, ... Mr. Obama was entitled to 'a lot of deference' should he wish to replace Justice Ginsburg or another liberal with a like-minded nominee."
I think that this view is badly misguided.
[C]onservatives shouldn't set a lower bar for a nominee who is replacing a liberal justice than for one who is replacing a conservative. Instead, we should make the case that conservative judicial principles are the right judicial principles and that anyone who doesn't embrace those principles is unfit for the Court.
This sentiment serves as a reminder of just how intransigent the right-wing has become in objecting to judicial nominees who aren't conservative ideologues. Although the named WSJ article at least referenced the prospect that Republicans would filibuster anyone left of centrist U.S. Court of Appeals for the District of Columbia Judge Merrick Garland for the Supreme Court, it ignored the rampant obstructionism that has ground the lower court confirmations process to a halt. The unprecedented nature of this bottleneck could become even more apparent this week, when multiple stalled nominations will be sent to the lame-duck Senate floor in hopes of receiving the due consideration of an up-or-down vote that was accorded President George W. Bush's nominees exactly ten years ago. As recounted by the Constitutional Accountability Center's Doug Kendall:
There is certainly precedent for a big crop of lame-duck confirmations--in a five-day period in November 2002, a Senate controlled by Democrats confirmed 20 Bush judicial nominees on a voice vote, including contentious picks for appellate court slots, such as Michael McConnell (confirmed to a seat on the 10th Circuit) and Dennis Shedd (confirmed to a seat on the 4th Circuit).
This precedent may be overlooked, as it has become unfortunately common for the news media to downplay the GOP's role in blocking the President's nominees. But as judicial nominations expert and University of Richmond Professor of Law Carl Tobias has repeatedly noted, ignoring obvious obstructionism and instead claiming the administration fails to prioritize nominations - "overstat[ing] Democratic responsibility, and understat[ing] Republican" - does not adequately explain the unacceptably high number of vacancies in the federal judiciary. From Tobias' November 11 editorial in the Baltimore Sun:
Some critics blamed Mr. Obama for recommending an insufficient number of nominees in 2009, but he subsequently quickened the pace. Before making nominations official, the White House has robustly pursued the advice and support of Republican and Democratic senators who represent jurisdictions where vacancies have arisen. Mr. Obama has in most cases tapped noncontroversial individuals who are intelligent, ethical, industrious and independent, possess balanced temperament, and enhance diversity vis-á-vis ethnicity, gender and ideology.
The Senate Judiciary Committee has quickly scheduled hearings and votes, sending nominees to the floor. There, many of them have languished. For instance, on Sept. 22, the Senate approved two nominees even though it could easily have voted on 19 others, most of whom the Judiciary Committee had approved with minimal opposition. The Senate recessed without acting on any of those excellent nominees because the GOP refused to vote on them.
Republicans should cooperate better. The GOP has automatically held over committee ballots for seven days without persuasive reasons. However, the major problem has been the chamber floor. Republicans have infrequently entered time accords for votes. The unanimous consent procedure, which the GOP employed in September, allows one senator to halt floor ballots. Most troubling has been the Republican refusal to vote on uncontroversial, talented nominees -- inaction that contravenes Senate traditions. When senators have eventually voted, they overwhelmingly approved many nominees.
Whelan's post is not only an excellent reminder that the Republican obstructionism highlighted by Tobias may continue unabated, but also that Republican Senators have refused to be cooperative on centrist choices. Indeed, the prospect of Republicans only filibustering those "to the left of Merrick Garland," as suggested by the WSJ article, is highly suspect in light of the treatment of similarly centrist nominees this past Congressional session.
Future coverage of federal court nominees should thus look to the influential Whelan as to why these vacancies are not being confirmed. Whatever responsibility the administration may have in not offering nominees in a timely manner, the real reasons lie in Whelan's admitted goal of a Supreme Court with a "supermajority" of conservative Scalia clones.
Wall Street Journal columnist Karl Rove contradicted his previous analysis of the election to deflect responsibility for President Obama's reelection away from himself.
Throughout 2012, Rove used his Journal column to further the political and financial ends of his pro-Mitt Romney groups often without disclosure of his interests. After Romney lost, Rove's November 7 column blamed a wide variety of factors other than himself, including Hurricane Sandy, the "New York Times headline writer who affixed 'Let Detroit Go Bankrupt' " to Mitt Romney's 2008 op-ed opposing the auto industry rescue, and the release of a secretly taped video in which Romney disparaged 47 percent of Americans as people who are "dependent on government" and see themselves as victims.
Rove also said that part of the reason Obama won because of a relentlessly negative campaign:
Mr. Obama was ruthlessly efficient in executing what his campaign manager, Jim Messina, told the New Yorker's Ryan Lizza was "a grand bet" -- an early negative campaign that started in May and targeted Mr. Romney's character, business ethics and wealth. A massive volunteer army armed with these same arguments then worked in the fall to convince family, neighbors and friends to support Mr. Obama.
This strategy required money, lots of it. Team Obama convinced the president to attend a record-shattering 220 fundraising events over 20 months, with the campaign and Democratic National Committee raising around $900 million.
If this grand bet had failed to raise serious doubts about Mr. Romney among ordinary voters -- or if the attacks on the GOP challenger's character and business background had been effectively rebutted -- the Obama campaign would have been without money or time enough to pursue a different strategy.
But it succeeded.
But this directly contradicts what Rove said during the campaign itself. In prior Journal columns, Rove asserted that the Obama's campaigns supposed negative strategy would not work, in part, because Rove's own groups were in place to counter the strategy.
For instance, in a September 19 Journal column, Rove asserted that Obama planned "to bury Romney under negative ads over the summer," but that strategy didn't work because of ads from Rove's own group, American Crossroads:
His strategy hasn't worked. Team Obama planned to use its big financial edge to bury Mr. Romney under negative ads over the summer. From April 15 to Labor Day, they spent an estimated $215 million on TV. But this was more than offset by conservative groups (principally American Crossroads, which I helped found). While Mr. Obama drained his coffers his own negatives climbed, and Mr. Romney partially repaired his image with voters.
Mr. Obama needs a different strategy, but his team seems stubbornly focused merely on disqualifying Mitt Romney by whatever argument or means necessary.
A Wall Street Journal article pushed the myth that Mitt Romney's tax plan adds up.
Romney has proposed a 20 percent across-the-board income tax rate, a $5 trillion tax cut that largely benefits the wealthiest Americans. Romney has promised to pay for that tax cut through the elimination of unnamed tax deductions and the closing of loopholes and has promised not to raise taxes on the middle class. But experts and independent fact-checkers have found that it is impossible for Romney to eliminate enough tax deductions and loopholes to pay for his tax cuts.
Nevertheless, in an article discussing President Obama's and Romney's tax plans, the Journal suggested that Romney will eliminate tax breaks in order to ensure that his proposed "rate cuts don't add to the government's budget deficit":
Mr. Romney is open to narrowing or ending some large tax breaks on savings and investment for upper-income households. An aide said last week that it would be "incorrect to assume" that such changes are off the table for Mr. Romney. Among the possibilities he might consider are curbing the tax exemption on the interest from municipal bonds and on life-insurance investments for higher-income households, the aide said.
Mr. Romney would use the extra revenue from curbing tax breaks to help offset the cost of reducing by 20% the rates on wages and salaries, so those rate cuts don't add to the government's budget deficit. Mr. Obama wants to use the added revenue to reduce the deficit.
However, the non-partisan Tax Policy Center found that even if Romney eliminated all itemized deductions, his proposal would bring in at most $2.6 trillion over 10 years and therefore would not come close to covering the $5 trillion cost of Romney's proposed tax cut. As a result, independent fact-checkers have said it's not possible for to cut taxes as Romney has pledged to do without adding to the deficit or increasing taxes on the middle class.
The Journal's editorial page has previously pushed the myth that Romney's tax plan adds up. Now, the myth has left the opinion pages and embedded itself in the Journal's straight news reporting.
In the continuing campaign against effective civil rights law, right-wing media have recently stepped up their attacks against a federal statute that prohibits acts that have a discriminatory effect on housing patterns. Contrary to this misinformation campaign, "disparate impact" analysis (as this technique is known) is not unconstitutional under the Fair Housing Act of 1968, and conservatives' rejection of this analysis abandons its bipartisan origins.
Disparate impact is the legal term for antidiscrimination law that prohibits actions that have a disproportionate effect on vulnerable groups. Despite its effectiveness - most recently, blocking discriminatory mortgage policies and voter suppression that targeted communities of color - conservative media have attacked disparate impact's legitimacy and dismissed it as a partisan technique only progressives support.
The National Review Online is a frequent critic, calling civil rights litigation based on disparate impact "not grounded...in sound constitutional theory" and part of a "partisan policy agenda." The Wall Street Journal has echoed claims about this "dubious legal theory," joining NRO in criticizing a recent withdrawal of a disparate impact Supreme Court case under the Fair Housing Act, Magner v. Gallagher. This week, WSJ columnist Mary Kissel recycled her conspiracy theory that the Obama administration's participation in convincing the parties to withdraw the case was "shady" because the administration "didn't want the High Court to rule on the legal theory[.]"
But these right-wing critics ignore that disparate impact has been legally accepted under numerous civil rights laws for decades, and in the housing context was part of a bipartisan effort to aggressively prevent the segregation of American society. They also ignore basic Supreme Court litigation strategy.
The constitutionality of disparate impact under the Fair Housing Act has never been addressed by the Supreme Court. There has been no need to take up the issue, as all 11 Circuit Courts have recognized it as a legal method of fair housing enforcement. As explained in a recent ProPublica report, this unanimity is expected given that aggressive government attempts to reverse discriminatory effects in housing patterns were originally considered a core function of the bipartisan Fair Housing Act:
The plan, [Republican Secretary of Housing and Urban Development] George Romney wrote in a confidential memo to aides, was to use his power as secretary of Housing and Urban Development to remake America's housing patterns, which he described as a "high-income white noose" around the black inner city.
The 1968 Fair Housing Act, passed months earlier in the tumultuous aftermath of the Rev. Martin Luther King Jr.'s assassination, directed the government to "affirmatively further" fair housing. Romney believed those words gave him the authority to pressure predominantly white communities to build more affordable housing and end discriminatory zoning practices.
Furthermore, with regards to the Obama administration's alleged influence in the Magner dismissal, there is nothing unusual about Supreme Court litigators considering the Court's ideological composition in deciding whether to pursue a legal theory that breaks on ideological lines. The ability to calculate a majority is basic Supreme Court litigation strategy. Indeed, it would be surprising if the Department of Justice did not calculate the odds regarding how justices are likely to rule in its cases. This is especially true of civil rights cases, in which conservative and progressive justices have sharply diverging views on the law. As Reuters recently reported, this is why DOJ's opponents are currently rushing to the Court in their attempts to overturn decades of civil rights law:
[I]n recent years liberals have sought to avoid going to the Supreme Court in cases ranging from affirmative action to voting rights. Advocates for liberal concerns such as abortion rights and gay marriage have also kept a wary eye on the justices while devising strategy in lower courts. Some abortion-rights advocates, for example, have so far declined to challenge state restrictions on abortion based on the notion that a fetus can feel pain, even though they believe the restrictions unconstitutional.
Those on the other side have taken the opposite tack. Conservatives who have labored to get their cases to the court include Edward Blum, director of the Project on Fair Representation, founded in 2005 to challenge race-based policies in education and voting. He recently helped lawyers bring an appeal by a white student who said she was denied admission to the University of Texas because of a policy favoring minorities.
"The timing is fortuitous," said Blum, who for two decades has worked with lawyers to challenge racial policies in education and voting districts. Citing the makeup of the Supreme Court, he said: "It's well-known that there are three members of a conservative bloc who have already expressed opinions on this and it's likely that the two new members of the conservative bloc will fall into that camp as well."
If the right-wing media do not like disparate impact theory because the modern conservative movement has abandoned it, or because the theory rejects the dissenting "colorblind" perspective on modern equal protection law, it should say so and leave it at that. By instead falsely asserting disparate impact laws are illegitimate and thereby calling for the reversal of decades of precedent - and bipartisan legislation - the right-wing media not only misinform their audience, they also disregard the words of Justice Antonin Scalia in one of the Court's most recent Civil Rights Act cases: "If [disparate impact litigation] was unintended, it is a problem for Congress, not one that federal courts can fix."
There has been strong criticism from Chrysler, GM, fact checkers, and local media in Ohio of the Mitt Romney campaign's false claims that Chrysler is shifting its Jeep production line from the United States to China. But in reporting on the story, MSNBC's Chuck Todd attempted to shield Romney from criticism by claiming that the campaign would not have run its Jeep ad in Ohio had it known there would be such strong pushback from Chrysler and GM.
In fact, the Romney campaign went ahead with its television ad in Ohio on October 27 even after Chrysler had already pushed back on erroneous claims that Jeep is sending U.S. jobs to China. In a statement on October 25, Chrysler wrote on its website that "Jeep has no intention of shifting production of its Jeep models out of North America to China."
Yet, on October 26, Romney falsely claimed that "one of the great manufacturers in this state, Jeep -- now owned by the Italians -- is thinking of moving all production to China." The next day, the campaign debuted a TV ad in Ohio that echoed that false claim.
Another ad repeating the same debunked claim started airing on October 30.
But during a discussion of the Romney ad on MSNBC's Morning Joe, Todd stated: "I don't know whether they thought the ad would actually encourage GM and Chrysler to repudiate them. I think -- I wonder if they thought that was going to happen, whether -- if they knew that was gonna happen, whether they would have gone up with this ad."
On the same day that the Romney campaign released its false radio ad, both Chrysler and GM issued statements condemning the ads as untrue. GM spokesman Greg Martin stated: "No amount of campaign politics at its cynical worst will diminish our record of creating jobs in the U.S. and repatriating profits back to this country." Chrysler CEO Sergio Marchionne reaffirmed that "Jeep production will not be moved from the United States to China," adding: "It is inaccurate to suggest anything different."
Similarly, the Wall Street Journal cast the repudiation of the Romney ads by Chrysler, GM, and the Obama campaign as mere controversy between dueling campaigns, writing that the "two campaigns sparred Tuesday" over the ads.
A Wall Street Journal op-ed covered up the fact that the Koch brothers and other business owners have warned their employees that there would be consequences to their economic well-being if Mitt Romney and other pro-corporate candidates are not elected.
Progressives have highlighted a mailing the Koch brothers' company sent to 45,000 of their employees stating that they had endorsed Mitt Romney for president in addition to other political candidates. The mailing's cover letter warned that if the nation elected the wrong candidates, "many of our more than 50,000 U.S. employees and contractors may suffer the consequences, including higher gasoline prices, runaway inflation, and other ills."
Other business executives have sent emails endorsing Romney, making statements such as "[i]f any new taxes are levied on me, or my company, as our current President plans, I will have no choice but to reduce the size of this company" and "I am asking you to give us one more chance to stay independent by voting in a new President and administration on November 6th. Even then, we still might not be able to remain independent, but it will at least give us a chance. If we don't, that chance goes away."
In response to resulting criticism from progressives, the Journal published an op-ed by Republican activist Bradley A. Smith, a frequent contributor to the Journal and other papers. Smith claimed that most Americans wouldn't find the mailing from the Kochs or other messages from business owners to their workers about whom to vote for threatening.
One day you return home from work, go to your mailbox, and find a packet from your employer concerning the coming Nov. 6 election. It includes information about the candidates and a letter from the company president that reads:
"To help you engage in the political process, we have enclosed several items in this packet. For most of you, this includes information about voter registration deadlines and early voting options in your state. At the request of many employees, we have also provided a list of candidates in your state that have been supported by . . . our employee political action committee.
"I want to emphasize two things about these lists. First, and most important, we believe any decision about which candidates to support is--as always--yours and yours alone, based on the factors that are most important to you. Second, we do not support candidates based on their political affiliation."
If you're like most Americans, you probably wouldn't find these words threatening. But they have many denizens of the anticorporate American left apoplectic. "
Smith later claimed that "those who think corporations are inherently bad want to prevent business owners and managers from providing this valuable information to their employees. It is disturbing, on many levels, that these so-called activists would rather keep employees in the dark than have them get information from the 'wrong' sources."
In order to make the claim that employees will feel informed rather than threatened by messages from their bosses, the op-ed ignored the warnings employers are giving their workers. While Smith quoted two paragraphs from the Koch mailing, he left out its warning of the consequences if Romney and other Koch-approved candidates don't win.