Friday, July 30, 2010

Is Obama Telling Rangel to Retire? Sounds Like It

President Obama has offered an opinion on the fate of Representative Charlie Rangel of New York. Recently, the House Ethics Committee charged Rangel with 13 violations.

During an interview with CBS News, President Obama seems to argue that Rangel should hang up his hat:
I think Charlie Rangel served a very long time and served -- his constituents very well. But these -- allegations are very troubling. . . .

And he'll -- he's somebody who's at the end of his career. Eighty years old. I'm sure that -- what he wants is to be able to -- end his career with dignity. And my hope is that -- it happens.
Obama's comments come as some media reports speculate that Rangel will survive the storm. While other commentators have argued that an ethics trial could harm Democrats, it is unclear whether Rangel's situation would actually have national implications. Obama's comments, ironically, will probably bring more attention to the situation and make it an issue that more likely implicates the reputation of the Democratic Party.

Will Rangel heed Obama's "advice"? According to Ben Smith of Politico, Rangel is unfazed by Obama's statement. Quoting an anonymous source, Smith reports that Rangel "doesn’t give a damn about what the president thinks about this."

Another "Beer Summit"? Breitbart Wants To Meet With Sherrod

A day after Shirley Sherrod announced her intent to sue blogger Andrew Breitbart, Breitbart has offered to meet with her privately. During an interview with Newsweek, Breitbart says that "This thing has gotten to a place that’s far beyond where it should be." Breitbart then said he would like to discuss the matter privately with Sherrod :
[Breitbart] I’d be more than happy to meet with her in private and have a discussion with her.

[Interviewer] Is that an invitation?

[Breitbart] Sure, I’ll go whoever she wants. I’ll go to Albany, Ga. I’ll go anywhere to have a private discussion with her.
Although stranger things have happened, I seriously doubt that this "beer summit" will take place.

Thursday, July 29, 2010

Sherrod to Sue Breitbart; Probably Has Stronger Suit Against The USDA

Shirley Sherrod says she will sue conservative blogger Andrew Breitbart. Breitbart posted a heavily edited speech that Sherrod delivered at an NAACP event. The portion of the speech, along with commentary on Breitbart's blog, misleadingly portrays Sherrod as a racist. The full version of the tape, however, paints a completely different story (see here).

It is unclear what type of action Sherrod will bring, but she will probably sue for libel. In order to prevail, she will have to prove that Breitbart acted with actual malice. This standard requires that Sherrod prove that Breitbart published information about her that he knew was false or that he acted with reckless disregard for the truth. Although this is normally a tough standard, Sherrod might prevail, given the circumstances of the scandal. It will be difficult, however, given the First Amendment interests at stake.

Stronger Case Against the USDA
Sherrod probably has an even stronger lawsuit against the government (unless she is a "political appointee," which would change this analysis significantly; update below). USDA officials forced her out of her government job without due process of law. She was not given the opportunity to explain herself, nor did her supervisors listen to the full speech before demanding her resignation.

Federal statutes and constitutional law provide procedural protections for government employees who face potential discharge. Although Sherrod has not indicated that she will sue the government, she would probably have an even better chance with that litigation.

Links to this article: Ta-Nehisi Coates, The Atlantic, Sherrod's Chances

Update: Readers here and elsewhere have made very good points. First, some readers have argued that Sherrod should not sue the government because she can make a stronger statement in a litigation against Breitbart. After all, the government has apologized and offered her another position. I do not question the soundness of those claims. Nonetheless, saying that a particular course of action is stronger from a legal perspective does not mean that the plaintiff should actually take that path.

Second, at least one reader at The Atlantic has pointed out that Sherrod was a "political appointee." If this is true, then her chances against the government under any legal theory are sharply diminished. This does not alter the difficulty of a libel action against Breitbart. Both paths represent an uphill battle.

White House Seeks to Expand FBI Power, Erode Privacy

The Washington Post reports that the White House seeks to expand the power of the FBI to command access to electronic communications without a warrant. According to the Washington Post,
The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.
Agents could compel companies to disclose the information if they believe it will assist anti-terrorism or intelligence investigations.

Naturally, privacy advocates vehemently disapprove of the White House proposal. Critics also argue that President Obama is betraying his promise to back away from President Bush's policies that expanded government authority over civil liberties. These critics have a pretty solid argument.

Wednesday, July 28, 2010

Gaffe A Minute: Sharron Angle Thinks Disclose Act Is Already Law (But It Is Not)

The Las Vegas Sun reports that Sharron Angle has made another major gaffe. During a recent interview, Angle stated that the Disclose Act already exists. It, however, does not. Furthermore, debate over the proposed campaign finance legislation has been tabled because not enough Senators were willing to invoke cloture.

Angle is providing a gaffe a minute. Also, Rasmussen, a conservative pollster, released a poll today showing Harry Reid leading Angle 45-43. Rasmussen says that the Nevada race "leans Democrat." It is not surprising that Angle's handlers are trying to keep her away from the media.

Federal Court Enjoins Enforcement of Bulk of Controversial Arizona Immigration Law

A federal district court has enjoined enforcement of all of the major portions of a controversial Arizona immigration law, including a provision that authorized police officers to check the immigrant status of individuals suspected of criminal activity. The ruling will not surprise most immigration and constitutional law experts. Supreme Court doctrine gives the federal government wide authority over immigration issues. Conflicting state law is preempted by the Supremacy Clause of the Constitution.

The court ruling, however, only grants a preliminary injunction. This kind of injunction will bar enforcement of portions of the law until the court issues a final ruling on its validity. The issuance of a preliminary injunction, however, means that the government has proven that there is a "likelihood" that it will prevail on the merits of its argument that federal law preempts the Arizona statute.

Thursday, July 22, 2010

Shirley Sherrod Wants to Educate President Obama On Issues of Race

Shirley Sherrod might be too much for the Obama administration after all. And I mean that as praise for Sherrod. The Associated Press reports that Sherrod wants to educate President Obama on issues of race. Sherrod believes that Obama has some lessons to learn because his life experiences did not expose him to some of the difficulties that she faced:

I'd like to help him see some of the things that he could do in the future."

"I really regret what they did. But as I said before, he's my president," Sherrod said. "When you get it down to where the rubber meets the road, I think you need to understand a little more what life is like. I'd love to talk to him, though, or people in his administration ... to help them understand."

"I can't say that the president is fully behind me. I would hope that he is," she added. "I would love to talk to him."

Also, George Stephanopoulos interviewed Sherrod on Good Morning America. Stephanopoulos discussed the interview on ABCNews.com. During the interview, Sherrod said the following:

“[Obama] is not someone who has experienced what I have experienced through life, being a person of color. He might need to hear some of what I could say to him. . . .I don’t know if that would guide him in a way that he deals with others like me, but I at least would like to have the opportunity to talk to him about it.”
I doubt this conversation will ever happen. The Obama administration treats race as a form of political kryponite -- something to avoid by any means necessary. Also, I would hate to see something similar to the silly Beer Summit the followed the controversial arrest of Henry Louis Gates. Nevertheless, Sherrod seems like a person who could offer Obama some valuable insight regarding race and social justice.

See also:

This Is How Post-Racialism Looks: Another Take on the Firing of Shirley Sherrod

Lessons For the NAACP From the Shirley Sherrod Fiasco.

UPDATE: This essay was updated to include an analysis of the report by George Stephanopoulos.

Wednesday, July 21, 2010

This Is How Post-Racialism Looks: Another Take on the Firing of Shirley Sherrod

Following an embarrassing turn of events, the White House, via Press Secretary Robert Gibbs, and Secretary of Agriculture Tom Vilsack have apologized to Shirley Sherrod. Sherrod was fired from her position at the USDA following the broadcast of a misleading video by rightwing blogger Andrew Breitbart and Fox News.

During the video, Sherrod appeared to state that she harbors personal biases against whites and that she failed to work diligently on behalf of a white farmer. The longer version of the video, however, reveals that Sherrod explained to the audience that by working with poor farmers, she learned to view poverty, regardless of race, as a disadvantaging factor. She also helped to save the white farmer's land.

Rush to Judgment
Rather than listening to the entire video or to Sherrod, who tried to explain her comments, Secretary of Agriculture Tom Vilsack immediately fired Sherrod, and the White House approved his actions. Now that that media have discredited the misleading video footage, Vilsack and Obama have apologized for the kneejerk and wrongheaded decision.

Vilsack has also offered Sherrod a job within the USDA. It is unclear, however, whether she will take the job. Earlier today, she indicated that she would feel uncomfortable returning to the agency.

The Costs of Post-Racialism: Race = Kryptonite
The Obama administration acted terribly in this situation. Rather than listening to a veteran civil rights advocate, administration officials trusted a misleading broadcast by rightwing Fox News and Breitbart.

The Obama administration, however, has long acted as if race were political kryptonite -- something to avoid at all costs. As Ta-Nehisi Coates of The Atlantic argues, this rush to avoid things racial led Obama to try and settle the stir surrounding the arrest of Henry Louis Gates with a few beers. Obama unwittingly entered the political thicket when he said that the officer acted "stupidly." Once people began to describe Obama's comments in racial terms, he swiftly retreated. Similarly, in this situation, Obama (either before or after Sherrod's dismissal), quickly rushed to distance himself from race.

Many of Obama's supporters have argued that he must avoid discussing race -- even if they generally see value in racial discourse. Others, however, believe that society must abandon race discussions altogether. During Obama's campaign, for example, many of his supporters praised him as a symbol of post-racialism.

Post-racialism, however, is simply a rhetoric of denial. So long as inequality exists along racial grounds, the move to avoid discussions of race will do more harm than good. The post-racial discourse impedes honest conversations about the operation of discrimination and the existence of inequality. It also precludes the development of policies to ameliorate racial inequity. Hopefully, the cheerleaders of post-racialism -- especially those who became fans simply to support Obama's candidacy -- will now rethink this doomed approach.

For more on this subject, see:

Shirley Sherrod Wants to Educate President Obama On Issues of Race

Lessons For the NAACP From the Shirley Sherrod Fiasco

Vilsack Reviewing Sherrod Firing, But She Is Not Sure She Wants the Job

Vilsack Reviewing Sherrod Firing, But She Is Not Sure She Wants the Job

Department of Agriculture Secretary Tom Vilsack is reviewing his decision to fire Shirley Sherrod. Vilsack fired Sherrod after he viewed a misleading video that suggested she discriminated against white farmers.

The misleading video was posted by conservative blogger Andrew Breitbart and subsequently aired on Fox News. Rather than investigating the facts, Vilsack demanded that Sherrod resign.

One day later, after media and blogs have aired the entire content of Sherrod's speech, Breitbart's lie has been made public and Sherrod's name has been cleared. It turns out that Sherrod was encourage the audience not to think of the world in racial terms (rather than condoning bigotry). Vilsack is reviewing the firing in light of these new developments.

Sherrod, however, seems torn about the prospect of working for the USDA again. During an interview with CNN, she describe the possibility as "bittersweet." Sherrod is upset that after such a long career assisting farmers, she was pressured to leave without any investigation into the facts surrounding the controversy. Sherrod says she is unsure how the agency will treat her if she returned.

My Take
Sherrod sounds like a highly rational individual.

See also:

This Is How Post-Racialism Looks: Another Take on the Firing of Shirley Sherrod

Lessons For the NAACP From the Shirley Sherrod Fiasco.

Lessons For the NAACP From the Shirley Sherrod Fiasco

The NAACP has admitted that it was "snookered" by Fox News and Andrew Breitbart. Earlier this week, Breitbart posted a misleading excerpt of a speech that Shirley Sherrod, now a former USDA official, delivered at an NAACP-sponsored event. The portion of the tape suggests that Sherrod, in her capacity as a USDA official, harbored racism towards a white farmer and did not effectively help him to protect his land. Fox News ran a story on the subject that condemned Sherrod. The broader context, portrayed on the full tape, paints a more innocent and inspiring picture.

Sherrod was referring to her representation of a white individual 24 years ago. At the time she worked for a nonprofit organization that assisted farmers seeking to keep their land. Although she thought that her client was privileged by race, she learned through dealing with him that he was vulnerable by poverty. Sherrod offered the story to encourage the audience to move beyond simply thinking of race as a source of inequality.

So, rather than being a bigot, as portrayed by Breitbart and Fox News, Sherrod exhibited the maturity that life experience brings. Also, Sherrod worked to help the farmer she described in her story. In fact, his wife says that she is a "friend for life." Sherrod also has a long record of accomplishment with respect to civil rights.

People who know Sherrod have emailed me, and they describe her as a dignified individual who respects others and who works hard to protect disadvantaged individuals. They also urged me to write on the subject.

Many liberal bloggers and commentators who have addressed this topic have focused on Breitbart and Fox News. These, however, are easy targets. I will instead focus on the NAACP. I believe that the NAACP could learn many lessons from this fiasco.

NAACP Afraid of Race?
The NAACP exhibited a degree of fear about race that is odd for an organization that deals with racial discrimination. Rather than fully investigating the record of events, the NAACP immediately released a terse statement condemning Sherrod. The organization rushed to racial judgment.

It is difficult to separate the organization's reaction to Sherrod from its controversial criticism of racist "elements" in the Tea Party. In response, the Tea Party and conservative bloggers accused the NAACP of being a bigoted organization. Once the misleading footage of Sherrod emerged, the organization dismissed her as a bigot in order to protect its own image.

This rush to judgment is intolerable and, ironically, suggests that the organization feared some of the public backlash that might come from dealing with questions of race in a thoughtful -- rather than kneejerk -- manner. While race remains a delicate and feared topic in the US, the NAACP should not view race in the same manner.

NAACP Technologically Unsavvy
The NAACP also acted in a very unsophisticated fashion, given the state of media technologies. In the age of Youtube, it is very easy to alter or edit a person's words to create misleading footage. Fox News and Breitbart have a history of doing this. For a major civil rights organization to fall for a "gotcha" video and immediately condemn a civil rights veteran is absolutely unacceptable.

More Important Race Issues
At present, the most widely known advocacy of the NAACP in 2010 involves condemning "elements" of the Tea Party and dismissing Sherrod as a bigot. These are not the most pressing racial issues that people of color face in the US or globally.

The organization should have more prominent advocacy on eduction, criminal justice, immigration, healthcare, and other issues that impact the lives of persons of color. These structural concerns are more pertinent than Breibart, Fox News, or "elements" of the Tea Party. Looking for a boogey man represents an outmoded way of thinking about racial inequality. Structural racial inequality matters much more than individual bigotry.

See also:

Shirley Sherrod Wants to Educate President Obama On Issues of Race

This Is How Post-Racialism Looks: Another Take on the Firing of Shirley Sherrod

Vilsack Reviewing Sherrod Firing, But She Is Not Sure She Wants the Job.

Tuesday, July 20, 2010

Marco Rubio: Budget Deficit Hypocrite

US Senate candidate and Tea Party darling Marco Rubio (R-FL) opposes an extension of unemployment benefits. Rubio argues that Congress should make spending cuts before extending benefits to unemployed Americans.

Rubio, however, favors extending the Bush tax cuts that favor wealthier Americans, and he does not seek any spending cuts to justify their extension. Instead, Rubio argues that the tax cuts will pay for themselves. Most of the credible data on this issue, however, show that the tax cuts have actually enlarged the deficit and would continue to do so.

Last week, Rubio released a gimmicky statement detailing "23 Simple Ways To Create Jobs, Grow Our Economy And Help The Gulf Coast Recover." Of the 23 proposals Rubio offers, 13 involve tax cuts or reforms. None of them, however, involve any spending cuts. Rubio's position on government spending is blatantly hypocritical and would cause the deficit to grow even larger.

Monday, July 19, 2010

OUCH II: Another Scathing Review of Sharron Angle by Las Vegas Journalist

John L. Smith, a writer for the Las Vegas Review-Journal, has written a scathing analysis of US Senate candidate Sharron Angle. Angle, a Tea Party-endorsed candidate, has imploded since she won the Republican primary.

Several polls now show the highly unpopular Sen. Harry Reid leading the race. Smith says that Angle can only blame herself -- although she often blames the "liberal media" and Reid's "lies." Here is a clip from the article:
God, the infallible campaign adviser, has a plan for Sharron Angle's U.S. Senate candidacy against Senate Majority Leader Harry Reid.

I have learned this not from the ultimate source, mind you, but from a recent interview Angle gave to David Brody of the Christian Broadcasting Network.

"When God calls you he also equips you and he doesn't just say, 'Well, today you're going to run against Harry Reid,' " Angle said. "There is preparation. Everyone in the Bible, when you read the Bible, you can see that preparatory time. Moses had his preparatory time. Paul had his preparatory time. Even Jesus had his preparatory time. And so my preparation began on a (Nye County) school board."

Moses. Paul. Jesus. Sharron.

That's good company. For a hack politician to compare her journey in any way to the roads traveled by Moses, Paul or Jesus is simply audacious, but in a short few months Angle has gained national notoriety for uttering such jaw-dropping jibberish.
Jon Ralston -- a writer for the Las Vegas Sun -- also published a very critical assessment of Angle today. Even though it is too soon to predict the results of the midterm elections, the tide has certainly turned against Angle (and other Tea Party candidates).

OUCH: Las Vegas Journalist Declares "Sharron Angle Is Dead"

Las Vegas Sun writer Jon Ralston has made a very ominous declaration for Nevada Republicans: "Sharon Angle is dead. . . ." Ralston offers a pretty dreadful picture regarding the future of Angle's campaign to become a US Senator. Here is a clip from the article:
With Angle’s hot air balloon leaking helium about as rapidly as oil left that Gulf well — 45 days and counting and the GOP Senate nominee still has not plugged it — the question is whether she can survive the fall to earth.

At least three polls I know of show Angle trailing Harry Reid, including Friday’s Mason-Dixon survey that has the Senate majority leader ahead, 44-37, outside the margin of error. Even if you don’t believe one of the polls, the trend is inescapable and the race’s dynamic is fundamentally altered.

Coming up on the 100-day mark until the election — and only three months until early voting starts — Reid remains manifestly unpopular, with more than half of those surveyed indicating they will not vote for him. But his strategy of driving people away from Angle and into either a “none of the above” posture or a oh-how-it-pains-me-to-vote-for-him stance has worked to perfection.
For more on the difficulty that Tea Party candidates face in general elections, see: Can Tea Party Candidates Win Elections In Less Conservative States?


UPDATE: Another Nevada journalist has ripped apart Angle's campaign. See: OUCH II: Another Scathing Review of Sharron Angle by Las Vegas Journalist.

Democrats Suddenly Winning Generic Congressional Race

For the first time since March, the Democrats have a statistically significant lead on a generic Congressional ballot, according to the latest Gallup poll. The Democrats lead by 6 points.

The Gallup poll shows that the Democrats' gain comes largely from Independent voters shifting towards Democrats. It is unclear what caused the shift, or whether it will last.

Gallup suggests that passage of the financial reform legislation, which most voters favor, could have caused the jump. Perhaps the shift has less to do with the Democrats' performance, than with disarray among Republicans.

Sunday, July 18, 2010

DOJ Defends Insurance Mandate on Commerce Clause and Taxation Grounds

The New York Times reports that the Department of Justice has defended the insurance mandate, contained in the recent healthcare legislation, as a tax. The primary justification remains the power to regulate interstate commerce. The taxation argument, according to the article, represents a secondary justification.

I have previously argued that the administration should defend the mandate as a commercial regulation and as a tax. During the healthcare debates, however, the White House said that the mandate was not a tax. I grimaced. Cooler, less political heads, have apparently prevailed during the litigation. Certainly, the mandate is not a general income tax. It only impacts individuals who are uninsured and who do not qualify for insurance subsidies.

Friday, July 16, 2010

Can Tea Party Candidates Win Elections In Less Conservative States?

In several Republican primaries, Tea Party-endorsed candidates enjoyed great success. Sharron Angle won the Nevada primary for US Senate by a landslide and started the general election campaign with a huge lead against incumbent Sen. Harry Reid.

In Florida's Senate contest, Tea Party favorite Marco Rubio forced Republican Gov. Charlie Crist to run as an independent. Polls showed that Crist would have lost the primary election to Rubio by a wide margin.

Finally, in Kentucky, Rand Paul defeated his Republican primary challenger by a comfortable margin. Paul emerged from the primary with a huge lead over his Jack Conway, his Democratic opponent.

These victories, combined with a simplistic media narrative that portrays the election results as a bad sign for incumbents, helped to fuel the belief that the Tea Party was a powerful new political force that would wield tremendous political power in November. Many commentators, however, are now rethinking that message.

Once conservative Tea Party candidates began running general election campaigns and receiving scrutiny from the national media, their leads, particularly in politically divided states, evaporated. Today, a Mason-Dixon poll shows that Harry Reid now leads Angle by 7 points. In Florida, most polls have shown Crist leading Rubio since he abandoned the Republican Party. In addition, the latest poll has Conway and Rand tied in Kentucky (which is more conservative than either Nevada or Florida).

It is too soon to call these elections. Nevertheless, the tightening of the races confirms earlier analysis which predicted that Tea Party candidates would encounter difficulty in politically divided states -- even if they trounced opponents in Republican primaries. While Tea Party candidates should have an easy time in reliably conservative states like Utah and South Carolina, how they will perform in other jurisdictions remains an open question.

Thursday, July 15, 2010

OIL LEAK STOPPED?

The BP oil leak has stopped, according to the Washington Post:
BP said Thursday that it has stopped oil from leaking out of its blown-out well in the Gulf of Mexico. The gusher has been throttled for the first time since the April 20 blowout on the drilling rig Deepwater Horizon.
Engineers now have to determine whether the cap can hold. Officials have not yet determined whether this is a permanent fix.

Argentina Legalizes Same-Sex Marriage

Argentina has legalized same-sex marriage. The Senate passed the measure early this morning. The House had already approved the bill, which President Cristina Fernandez supports.

Wednesday, July 14, 2010

Marco Rubio Proposes Heavy Tax Cuts. What About Spending?

US Senate candidate Marco Rubio (R-FL) has released a very gimmicky statement detailing "23 Simple Ways To Create Jobs, Grow Our Economy And Help The Gulf Coast Recover." Of the 23 listed items, 13 involve proposed tax cuts or reforms.

Only one proposal -- "repealing Obamacare" -- involves a specific spending cut. Rubio, however, makes a vague proposal for an alternative healthcare reform measure. This would presumably involve government spending as well. Rubio's plan does not look fiscally conservative at all.

Rubio's campaign website expresses a concern about government spending, but it does not propose any cost-cutting measures. The website, however, lists several categories of tax cuts. Rubio also boasts that he never voted for a tax increase. It is unclear how Rubio would balance the budget, given his support of tax cuts without any specific spending reduction.

Tuesday, July 13, 2010

Silliness From Wall Street Journal: Editorial Demands Kagan Recuse Herself From Healthcare Litigation

A Wall Street Journal editorial demands that Elena Kagan recuse herself from lawsuits challenging the constitutionality of the healthcare reform legislation. The editors, however, lack a legal basis to demand that Kagan recuse herself.

The Senate cannot make this demand because this would violate the separation of powers. And while federal law might require that she recuse herself from cases in which she was directly involved as Solicitor General, she has already promised not to sit on those cases if she is confirmed.

The Wall Street Journal speculates that Kagan probably offered an opinion on the legality of the healthcare statute -- but, of course, the editors cannot prove this. Lacking any factual basis to argue for recusal, the editors argue that Kagan should recuse herself from cases challenging the legislation because they disagree with her answer to questions regarding the Commerce Clause (which is central to the constitutional issue).

Although Kagan's statements reflect current Supreme Court doctrine, the Wall Street Journal editors accuse her of incorrectly supporting an expansive view of the commerce power. Because they disagree with an expansive view of the Commerce Clause, they believe she should recuse herself from the healthcare litigation if it reaches the Court. According to the editors, her view (with which they disagree) proves she is partial:

We also think there are grounds for recusal based on her response during her Senate hearings on the substance of the state legal challenge. The Florida case boils down to whether Congress can compel individuals to buy health insurance under the Commerce Clause. Ms. Kagan danced around the history of Commerce Clause jurisprudence, but in one response to Senator Coburn she did betray a bias for a very expansive reading of Congress's power.

The Commerce Clause has "been interpreted to apply to regulation of any instruments or instrumentalities or channels of commerce," she said, "but it's also been applied to anything that would substantially affect interstate commerce." Anything? This is the core question in the Florida case. If she already believes that the Commerce Clause justifies anything that substantially affects interstate commerce, then she has all but prejudged the individual mandate question.
This is a baseless argument. In US v Lopez, one of the most important cases on the Commerce Clause, the Court held that Congress could "regulate those activities having a substantial relation to interstate commerce . . . i.e., those activities that substantially affect interstate commerce" (emphasis added). This is essentially what Kagan stated during the hearings.

While language in some cases suggests that "activities" only include "economic" activity, the Court has not indicated that this is a requirement. In Gonzales v. Raich, for example, the Court upheld enforcement of the Controlled Substances Act against an individual who consumed homegrown marijuana for medicinal purposes. The individual did not obtain marijuana on the open market. Nevertheless, the Court held that in the aggregate, homegrown marijuana could have a substantial effect on the market for marijuana (making it more available -- contrary to the purpose of the federal statute). Justice Scalia concurred and argued that so long as the activity being regulated is part of a broader statute dealing with interstate commerce, then Congress can regulate the activity pursuant to its Commerce Clause authority. Even one of the most conservative justices has embraced Kagan's view of the Commerce Clause.

The Wall Street Journal editors' demand for Kagan to recuse herself is blatantly political and without merit. Finally, it seems like the editors have conceded the point that the mandate has a substantial relation to interstate commerce. Perhaps the Supreme Court will agree.

UPDATE: Media Matters has published an extensive essay that criticizes the Wall Street Journal editorial.

UPDATE II: Think Progress also has a good article on this subject.

Monday, July 12, 2010

A World Without Air Conditioning

Stan Cox hates air conditioners. He is the author of several articles and a forthcoming book that try to link air conditioners with environmental deterioration.

Today, the Washington Post published an op-ed in which Cox imagines a world without air conditioning. Cox begins his essay by asserting that air conditioners increase global temperatures, which, perversely, lead to greater demand for air conditioners:
In a country that's among the world's highest greenhouse-gas emitters, air conditioning is one of the worst power-guzzlers. The energy required to air-condition American homes and retail spaces has doubled since the early 1990s. Turning buildings into refrigerators burns fossil fuels, which emits greenhouse gases, which raises global temperatures, which creates a need for -- you guessed it -- more air-conditioning.
That is pretty tough claim to substantiate, but is not the most difficult assertion that Cox makes. Cox also argues that substantially reducing the use of air conditioning would dramatically alter society. For example, according to Cox, the air conditioner-free workplace would become a site of relaxation and, well, warmth:
In a world without air conditioning, a warmer, more flexible, more relaxed workplace helps make summer a time to slow down again. Three-digit temperatures prompt siestas. Code-orange days mean offices are closed. Shorter summer business hours and month-long closings -- common in pre-air-conditioned America -- return.

Business suits are out, for both sexes. And with the right to open a window, office employees no longer have to carry sweaters or space heaters to work in the summer. After a long absence, ceiling fans, window fans and desk fans (and, for that matter, paperweights) take back the American office.
Cox also believes that an air conditioning-deprived Congress would change for the better:
Best of all, Washington's biggest business -- government -- is transformed. In 1978, 50 years after air conditioning was installed in Congress, New York Times columnist Russell Baker noted that, pre-A.C., Congress was forced to adjourn to avoid Washington's torturous summers, and "the nation enjoyed a respite from the promulgation of more laws, the depredations of lobbyists, the hatching of new schemes for Federal expansion and, of course, the cost of maintaining a government running at full blast."

Post-A.C., Congress again adjourns for the summer, giving "tea partiers" the smaller government they seek. During unseasonably warm spring and fall days, hearings are held under canopies on the Capitol lawn. What better way to foster open government and prompt politicians to focus on climate change?
It is certainly debatable, however, whether doing less would improve Congress. Besides, national lawmakers take a summer hiatus in August - during the hottest part of the DC summer.

Cox also believes that cutting off the air conditioners would lead to greater socializing in cities and even reduce crime and heat-related deaths:
Saying goodbye to A.C. means saying hello to the world. With more people spending more time outdoors -- particularly in the late afternoon and evening, when temperatures fall more quickly outside than they do inside -- neighborhoods see a boom in spontaneous summertime socializing.

Rather than cowering alone in chilly home-entertainment rooms, neighbors get to know one another. Because there are more people outside, streets in high-crime areas become safer. As a result of all this, a strange thing happens: Deaths from heat decline. Elderly people no longer die alone inside sweltering apartments, too afraid to venture outside for help and too isolated to be noticed. Instead, people look out for one another during heat waves, checking in on their most vulnerable neighbors.
These claims seem far fetched -- and even sound contrary to existing crime statistics that often show a increase during summer months precisely because people spend more time outside of their homes.

Final Take
Conservative bloggers have jumped on Cox's op-ed in order to bash environmental reform movements. I am not a conservative, and I generally support the move to reduce the emission of greenhouse gases. Cox's op-ed, however, does not make a strong case for reducing the use of air conditioning.

Cox does not substantiate his claims with empirical data, and some of them seem to go against longstanding statistics (e.g., crime increasing when people emerge from winters indoors). Furthermore, it is not at all clear that a more relaxed workplace -- including for members of Congress -- would benefit society.

Furthermore, while Cox attacks air conditioners, many of the same arguments could apply to heating systems, which Cox does not criticize. Finally, Cox's analysis does not seem applicable in parts of the country that experience extreme heat more routinely than northern cities.

Greenhouse gases are a serious problem; so is summer heat. Cox's far-fetched claims do not make a persuasive argument for discarding air conditioners. Perhaps he does a better job in his forthcoming book.

UPDATE: Kathy Kattenburg of The Moderate Voice offers a very sensible critique of Cox's article. See Speaking of Simplistic Solutions to Complex Problems.

Althouse approaches the topic with sarcasm. See If you really believed in global warming, you would turn off your air conditioning.

Friday, July 9, 2010

Can You Shower With A Gay Person And Other Questions The Pentagon Is Asking Troops

ABC News (via Jake Tapper) reports that a Pentagon survey for 400,000 non-deployed, active troops regarding Don't Ask, Don't Tell has some very inflammatory questions. For example, the survey asks respondents to say what they would do if they were assigned to a shower with a suspected or known gay or lesbian individual. Another question asks respondents whether they could live on-base if another servicemember lived on-base with his or her same-sex partner. The survey also asks respondents to state how they would respond to the prospect of sharing a room or field tent with a gay or lesbian individual.

These questions are inflammatory and designed in a manner that invites homophobic responses. I am not surprised that the military has designed such a survey. In fact, the whole idea of subjecting an equality issue to a popular vote is extremely problematic. This survey does not represent "change" or "hope" on GLBT issues.

Thursday, July 8, 2010

Federal Court Invalidates Section 3 of DOMA. Is Reversal Likely?

In two separate opinions, a federal district judge in Massachusetts has ruled that section 3 of the Defense of Marriage Act violates the Constitution. Section 3 of DOMA excludes same-sex married couples from over 1,100 federal benefits (including social security survivor benefits and a host of other programs).

In one case, the judge held that Section 3 violated the equal protection rights of same-sex married couples. The judge ruled that the discriminatory policy lacked a rational basis.

The court rejected the government's asserted reasons for discriminating against same-sex couples. The government argued that DOMA encourages responsible procreation and child-bearing, defends and nurtures the institution of traditional heterosexual marriage, defends traditional notions of morality, and preserves scarce resources.

The court found these interests insufficient to warrant discrimination against same-sex married couples. The court also cited the lengthy record of overt homophobia among members of Congress who supported the legislation.

The second opinion held that Section 3 violated the 10th Amendment because it intrudes upon the ability of states to define marriage and because it conditions the receipt of federal benefits upon states depriving gays and lesbians of equal protection. The State of Massachusetts brought this lawsuit.

Final Take
Unless an appeals court reverses these rulings, they will benefit same-sex married couples. The decisions, however, do not provide relief for most gays and lesbians who cannot legally marry.

Also, it is quite possible that an appeals court might reverse one or both of the rulings. The 10th Amendment ruling, in particular, seems quite vulnerable to reversal in my professional opinion. It seems to rest on a more constrained view of federal power than current Supreme Court doctrine mandates. Professor Jack Balkin agrees (arguing that the court's 10th Amendment arguments "prove entirely too much").

Tuesday, July 6, 2010

The Onion Releases Extremely Funny Video That Lampoons American Cable News Personalities

The Onion has released an extremely funny video that lampoons loud-talking, simplistic American cable news personalities. Although Joad Cressbeckler, the fictional host of the video, is a conservative caricature, the video fairly portrays the deplorable status of many programs in the cable news format. Enjoy!

Semi-Literate Former Gold Prospector Given Own Cable News Show


Friday, July 2, 2010

Michael Steele: Afghanistan Was A War of "Obama's Choosing"

Remarkably, RNC Chair Michael Steele recently implied that Obama started the war in Afghanistan. Speaking at a Connecticut fundraiser for Republican candidates, Steele said the following:
"Keep in mind again, federal candidates, this was a war of Obama's choosing. This was not something that the United States had actively prosecuted or wanted to engage in," he said. "But it was the president who was trying to be cute by half by building a script demonizing Iraq, while saying the battle really should be in Afghanistan. Well, if he is such a student of history, has he not understood that you know that's the one thing you don't do, is engage in a land war in Afghanistan?"
Apparently, it was just a fake war until Obama's presidency.

UPDATE: Several anti-war progressives have praised Steele for stating that the war is unwinnable. See, e.g., A cycle of stupidity. For the same reason, several conservatives have demanded that he resign as RNC chair. See, e.g., A Letter to Michael Steele.

Senator Hatch Will Oppose Kagan

Senator Orrin Hatch has announced his opposition to Supreme Court nominee Elena Kagan. Although it seems clear that the Senate will confirm Kagan, it is also obvious that picking a moderate (or closeted liberal) candidate does not negate conservative opposition.

Judicial Deference and "Silly" Laws

Earlier this week, Senator Tom Coburn asked Elena Kagan if she would uphold a federal law that required every American to “to eat three vegetables and three fruits every day.” Kagan said that the hypothetical law sounds "dumb." She also reminded Coburn that Congress must enact wise legislation and that the political process is the best place to weed out irrational proposals.

This argument is a staple of constitutional law. According to established Supreme Court doctrine, unless a law infringes a constitutional right or discriminates on an impermissible basis, the Court will apply a very deferential standard of review. Liberal and conservative judges subscribe to this notion. The conflict centers around naming those moments when laws infringe protected rights or deny equal protection.

Although the notion of judicial deference is fairly established, New York Times reporter Adam Liptak lauds Kagan's approach in a recent article. Liptak, however, fails to consider the more compelling question of Kagan's views on equal protection and due process. Laws can be "dumb" and unconstitutional simultaneously.

For example, Liptak notes that Kagan views the sentencing disparity between crack and powder cocaine as a "policy" issue. That point is unassailable. But the sentencing laws also raise a question of equality, due to their racial impact. Legal scholars have long criticized the disparity, but most courts have held that the policy does not violate the Equal Protection Clause.

When Kagan worked for President Clinton, she advised her boss against eliminating the disparity, on the grounds that it would be unpopular (although Durbin says she once accepted narrowing the disparity). Now, it appears that she also believes that the Court should not undo the disparity. But the Court is often the last refuge for groups seeking protection against "dumb" -- and discriminatory -- legislation. Kagan's centrist responses would leave persons of color without a judicial or political remedy.

Deference and Rights Infringement
Justice Stewart famously made an argument for judicial deference in his dissent in Griswold v. Connecticut. Griswold established the "right of privacy" and invalidated a Connecticut law that banned the sale of contraception. The ruling was limited to married couples.

Stewart dissented and argued that the law was "uncommonly silly." Stewart said that had he been a member of the Connecticut legislature, he would have voted against the law. As a member of the Court, however, Stewart believed that he could not invalidate the measure. The law was simply a policy preference.

Justice Thomas, quoting Stewart, made the exact same argument in his dissent in Lawrence v. Texas. Lawrence, another "privacy" case, invalidated a Texas statute that criminalized same-sex sodomy. Thomas argued that the law was silly but constitutional.

Asking whether the Court can or should invalidate "silly" laws misses the point. This is clearly not the duty of courts, and Supreme Court doctrine already reflects this logic. The broader and more important question is whether silly or sound laws violate the Constitution. On the issue of substantive constitutional law, Kagan -- like others before her -- has not revealed much about her potential approach.

Durbin, however, pressed Kagan on this point -- even raising the issue of Griswold and the right of privacy. Kagan conceded that she believed the Constitution protects substantive liberty interests, but she also admitted that reasonable minds can disagree on the extent of these rights. What Kagan believes, however, remains a mystery on many issues. To her credit, however, the confirmation process does not afford candidates the opportunity to reveal their cards without partisan rancor.

Thursday, July 1, 2010

Sen. Coburn Says Kagan "Ignorant," But He Shows His Own Ignorance

Senator Tom Coburn (R-Ok) said that Elena Kagan was "ignorant" for wanting to follow Supreme Court precedent, rather than "original intent" (which is not what she said). In making this argument, however, Coburn proves his own ignorance about constitutional law.

Coburn made the following statement about Kagan:
"I think the thing that's very worrisome is that she has a very expansive view of the Commerce Clause, and I find that she's ignorant of the Constitution's limitation of that, especially what our Founders wrote,” Coburn, R-Okla., told us.

“And her reliance was that, ‘Well, here's the precedent that's been set, and we can't go back to original intent,’ which comes back to another thing that she said earlier in the hearing -- is that precedent trumps original intent. And I think most Americans would reject that. If that was the case, then we would have never had Brown vs. the Board of Education, and Plessy-Ferguson would still be the law. And to have a Supreme Court nominee that actually says precedent trumps original intent is worrisome, in my opinion.
It is pretty bizarre to call a potential judge "ignorant" for refusing to overturn decades of established caselaw. It is even more bizarre to describe Brown v. Board of Education as reflecting the "original intent" of the Framers of the Fourteenth Amendment.

Legal historians have written many articles on this subject. Most of the leading scholarship concludes either that the Framers would not have supported the result in Brown or that their opinion on the subject is inconclusive. In Brown, the Court itself concluded that the original intent was unclear on this issue.

If Coburn is uncomfortable with this fact, perhaps he should reject originalism as a tool of constitutional interpretation. Distorting history, however, is not an intellectual choice.

Coburn also said that Kagan believes there are "no limits" to the Commerce Power by Congress. This is an absolute lie. Current precedent, which Kagan embraces, contains judicially imposed limitations and has resulted in the invalidation of laws in recent years, most notably an anti-gun law and a portion of the Violence Against Women Act. Even conservatives like Justice Antonin Scalia, however, agreed that Congress could regulate the consumption of homegrown marijuana for medicinal purposes (i.e., pot that is neither sold or bought on the market). Coburn's anger is unprincipled and misguided.

Arlen Specter Upset With Kagan

Arlen Specter is unhappy that Elena Kagan has not revealed her take on substantive legal questions. Given the potentially contentious nature of confirmation hearings, candidates often make general statements about supporting precedent and judicial deference. Kagan has not strayed from this script. This fact has Specter fuming, as The Blog of the Legal Times reports:
"You have followed the pattern which has been in vogue since Bork,” he said, referring to conventional wisdom that Supreme Court nominees have been hesitant to say much about their legal views after the nomination of the very substantive Judge Robert Bork failed in 1987. “It would be my hope that we could find some place between voting no and having some sort of substantive answers, but I don’t know that it would be useful to continue these questions any further."
Kagan's answer to Specter's question (about the legal standard in a particular line of cases) seems abundantly fair. She said that before deciding whether to reverse the test, she would have to read legal arguments and confer with her colleagues. This response, however, did not satisfy Specter. Now that Specter is a "lame duck" Senator, he does not have to appease any political party -- particularly the Democrats (his newly chosen party).

4 Finalists for Site of Democratic Convention

The DNC has narrowed the list of choices for its 2012 convention to four cities: St Louis, Cleveland, Charlotte and Minneapolis. Frankly, I am surprised only one Ohio city appears on the list.
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