Obama, Immigration & the Supreme Court: Executive, or Judicial, Overreach?

On Tuesday we learned the Supreme Court is going to hear the Texas case that put a halt to President Obama’s 2014 executive action on immigration.  We’re likely to hear arguments in the Spring and a decision in the Summer.  Given the fact that it’s an election year, expect GOP nominees to continue to talk about the steps taken by the Department of Homeland Security to prioritize deportations as an overreach of executive power.

In the case, United States v. Texas, Texas and other states asked a federal district court to halt a program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), announced by the Secretary of Homeland Security in November 2014, that prioritized the removal of removing serious criminals, terrorists, recently arrived aliens and aliens who have abused the immigration system, and stated that DHS would use its discretion to defer action on removing parents of US citizens or permanent residents who had resided in the US for the last five years. Texas complained that because these parents would have “deferred action” status, they would be eligible for Texas drivers licenses, which Texas subsidizes. The argument goes, because there would be more licenses issued, it would cost Texas more money.  And that’s the “harm” that Texas insists gives it standing to bring the case.  Even though Texas could just pass a law ending drivers license subsidies for people with “deferred action” status.

 Ultimately, this case is about is power and partisanship.  The big questions raised are:

  • Can or should a single federal court be able to cripple a nationwide federal immigration program, as it has in this case?  Is this not judicial overreach?
  • Do the states have standing to sue over an immigration program, where the “injury” that their standing is based on can be rectified by a simple law change at the state level?
  • Does the President have the power to direct the Secretary of Homeland Security to prioritize certain immigration policies and allocate resources accordingly?
  • Should there have been a period of review and comment before the Secretary acted?
Clearly, the President was frustrated with Congress’ inability to pass bipartisan immigration reform. So he acted. The big questions here will be whether the Supreme Court will allow the program to go forward, or whether it will restrict this executive action, or future executive actions, as an over-reach of presidential power.

 

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Planned Parenthood Gears Up for Battle Against “Sting” Video Maker

Yesterday, Planned Parenthood Federation of America (PPFA) filed a 65-page lawsuit in California federal court against the Center for Medical Progress (CMP), the group that conducted sting operations in PPFA facilities and affiliate’s conferences and posted online heavily edited videos that have led to a huge increase in violence and threats against PPFA centers and staff and more calls from the #GOP to halt PPFA’s federal funding.

The complaint is a vessel into which PPFA has poured all the vitriol, harassment and harm caused by CMP, Operation Rescue and the broader network of anti-abortion groups over the years, including murders of abortion doctors, arson and other crimes committed against PPFA property, and the Colorado PPFA shooting.  It alleges “a complex criminal enterprise” that committed mail and wire fraud in violation of RICO, and also violated California privacy, fraud, contract, trespass and consumer laws.

At minimum, the Complaint gives PPFA a chance to defend its own practices, and counter-attack in public in a 65 page writing.  It will likely also allow PPFA to obtain documents and deposition testimony from some of its most enduring and harshest critics, on some pretty embarrassing topics (such as illegally obtaining California drivers licenses in fake names and making fraudulent statements to the state and federal government) (that is, if CMP isn’t successful in having the entire Complaint dismissed, which, given the level of detail in the complaint, is unlikely).  PPFA will also try to unearth information on the extent to which the videos were edited and manipulated in order to represent PPFA employees as the “corrupt abortion and baby body parts profiteers” CMP believes them to be.

Constitutional issues are likely to come into play in this case, as they have in a similar case against CMP brought by the National Abortion Federation, whose conferences CMP secretly recorded as part of its sting against PPFA.  There, CMP and the “fake” company, Biomax, tried to “plead the Fifth” to avoid giving incriminating evidence.  The judge refused.  CMP and Biomax also continue to make a number of First Amendment freedom of speech arguments in this and related cases, arguing against restraining orders that have halted the dissemination of new videos, and against providing any documents or testimony in the discovery phase of the case.

Expect to see similar fights in the PPFA case. And expect them to drag on, and on.  Because even if PPFA doesn’t ultimately prevail, this lawsuit presents an opportunity to collect a huge amount of information on CMP and discredit it as, in PPFA’s words, an extremist group that built a smear campaign on the back of “fraud, illegal acts and a web of lies.”

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1/11/16 Quinnipiac Poll: Who is John Kasich?

Much has been made about the Trump – Cruz match up in the January 11 Quinnipiac poll of Iowa likely Republican caucus participants.  The untold stories? Nobody knows who John Kasich is (o.k., about half of respondents do); Bush is horribly, horribly unpopular; voters are disinterested in social issues like same sex marriage and abortion; the poll gives more support to the idea that Trump “fans” won’t become Trump “voters;” and GOP voters are lukewarm about their own front runners beating a democrat to the Presidency.  Details below….

- Kasich still lacks name recognition.  42% of potential voters don’t know enough about Kasich to form a favorable or unfavorable impression of him.

- People’s minds still aren’t made up.  46% of voters who identified a candidate they are most likely to vote for might still change their minds.  This, along with my view that Trump “fans” might not translate into Trump “voters” supports the idea that Trump’s current popularity might not bear out in the primaries.

-  It’s bad for Bush.  He’s not faring well in the fight for the moderate / establishment vote. He might also be a victim of unmet expectations (and/or anti-legacy candidacies). Bush has a 56% unfavorability rating.

- The economy, terrorism and immigration polled as the most important issues.  Terrorism and immigration are intertwined in this election cycle, which is a first.  Trump polls first in all three categories. Kasich, Fiorina, Santorum and Huckabee struggle to get above 3% in any of these categories.

- Social issues like racial equality, abortion and same sex marriage are of the least importance to voters.  Cruz polls highest here.

- Trump and Cruz, head to head:  Cruz comes out on top by virtually all measures.

— Who cares about the needs and problems of “people like you ?” 81% said Cruz does,    while 64% said Trump does.

— Who has the right experience? 54% think Trump has the right kind of experience to be President, while 76% think Cruz does.

— Who shares your values? 53% think Trump shares their values, while 75% think Cruz shares their values.

— As for the chances of the GOP nominee, 65% think Trump can defeat the democratic nominee and 69% think Cruz can.  This doesn’t seem particularly optimistic to me.

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Can Ben Carson “heal, inspire, or revive” his campaign?

On the last day of 2015, Dr. Ben Carson’s campaign manager, deputy campaign manager, communications manager and 20 staffers abruptly left the campaign.  This is the latest in an escalating string of snafus that practically guarantee Carson’s departure from the GOP race.  A few days prior, Carson told the AP there would be a shake-up of his team.  Hours later he retracted that statement. Then, the departures, and then, the explanation by Carson’s former campaign manager that he left because a long-time business adviser to Carson, Armstrong Williams, was attempting to run the campaign from the sidelines (including setting up the media interviews out of which the shake-up story emanated).  Carson’s slide started with his ineptitude in the foreign policy arena.  Poor debate responses, his own advisers publicly discussing the problems he was having “learning” foreign policy (for which Williams may also be to blame).  Then, Paris and San Bernardino.  A cruel twist of fate for those harmed. A random event that impacted the political chances of every candidate and refocused voters.  It was a time to show chops and leadership to a concerned electorate.  Carson couldn’t do it.  He talked about the impropriety of electing a Muslim President.  Some cheered, some jeered.  He just didn’t seem, well, Presidential.

On the one hand, Carson has an impressive war chest, devoted followers, and a campaign that has been re-staffed and will be re-invigorated.  The elevation of his ex-military foreign policy adviser to campaign chairman is of particular note.  And the RNC isn’t until July.  But on the other hand, the Iowa Caucus and the New Hampshire Primary are only weeks away.  And, Carson’s situation reflects some truisms of American politics.  First, if your own team cannot articulate the vision of your presidency among themselves, they cannot present it to voters.  Carson’s departing team members could not say what kind of President he would be (and, worse, they are saying it publicly).  Second, and related, a candidate will always have a core constituency – but that’s not enough to get elected. It was never that clear who else, beyond evangelicals, was in the Carson tent. Third, we have never elected a president who lacks political, government, or military experience. I believe it was Newt Gingrich who said you can learn to be president, but so far, no-one has done that without a base in some form of government.  Carson’s snafus smack of political inexperience (like Fiorina’s Rose Bowl tweet). And he has fumbled too often with the material he needed to command.

I do not doubt Carson’s sincerely held religious beliefs.  And his extraordinary professional and personal achievements cannot be denied.  But these alone do not a President make. It seems that not even Ben Carson can “heal, inspire, or revive” his campaign.

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Cruz “religious liberty” victories actually won by minimizing religious content of ten commandments and cross

Ted Cruz’s newest ad to Iowans focuses on his defense of the ten commandments and a cross as evidence of his “religious liberty” bona fides.  Here’s the rub: Cruz’ success  defending the placement of the ten commandments on the Texas state capitol grounds and a cross on federal land in the Mojave desert were both based on the argument that they were predominantly non-religious displays.

How does this work, you ask? Well. Although the Right often accuses the Left of pretending the Bill of Rights doesn’t exist, there are a couple of constitutional clauses that conservatives have worked very hard to minimize.  For example, the  “establishment clause” of the First Amendment.  No, not the guarantee of religious liberty that each GOP candidate shouts from the rooftops (a-la Kim Davis), but the  equally important language that ensures that the government does not by law either establish an official religion, or prefer one religion over the other.

In the Ten Commandments case, Van Orden v. Perry, Cruz as Texas Solicitor General argued before the Supreme Court that the ten commandments monument was gifted by a secular organization and surrounded by a number of other symbols on the Capitol grounds, in a “museum-like” setting,  such that the commandments  would not be considered as an (unconstitutional) government endorsement of religion, but rather a message about civic morals.

In the cross case, Salazar v. Buono, where Cruz’s involvement was limited to a “friend of the court” brief on behalf of a number of veteran’s organizations, he used Van Orden to argue that the cross should remain on federal land because the cross carried less of a religious message than the ten commandments:

“The context and history of the Ten Commandments monument in Van Orden suggested that the State “intended the nonreligious aspects of the tablets’ message to predominate” by conveying “an illustrative message reflecting the historical ‘ideals’ of Texans . . . . Here, it is even clearer that the Memorial’s predominant message – to commemorate American war dead – is secular because similar monuments are used for similar purposes throughout the world.

Cruz and others seeking to uphold the placement of the cross argued that the cross is a non-religious symbol commemorating war dead, which lead to a now infamous exchange (by court-watchers at least) between Justice Scalia and a lawyer for the ACLU, where Scalia seemed incredulous at the notion that a cross was a symbol that only honored Christians, with the ACLU lawyer responding “there is never a cross on a tombstone of a Jew.”

Well, this is politics.  All candidates are talking half- and three-quarter truths (some more, some less).  But perhaps a candidate running on a platform of constitutionalism and religious liberty should at least be intellectually honest about religious liberty “victories” that were in fact argued by minimizing the religious content and meaning of the symbols he sought to protect.

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Ted Cruz: Can the GOP almost-front runner secure the Presidency?

Ted Cruz is running the smartest campaign in the entire republican field, and it shows.  He is steadily rising, by any measure of popularity. First, the Ground Game. Cruz has a veritable army of organizers, he is collecting, and utilizing, highly personal information about voters and targeting his message specifically to them. His use of social media and technology platforms (and the data collection that comes with them) has been masterful. Even the vernacular of his campaign – the #Cruzcrew, the use of his first name in campaign imagery “TrusTED.” Abolishing the IRS is made to look like god’s work (“One Nation, One Tax” – sound familiar?) Like Obama before him, Cruz is creating the idea of his presidency as something people can actually participate in.

Second, the Trump Tactic. Cruz has been carefully drafting behind the recently-annointed “most vulgar” candidate. And careful is the operative word here. Even in a closed door donor meeting (recently leaked), Cruz was measured in his assessment of Trump’s readiness for the Oval office. He has avoided personal attacks, and fostered a bromance with the front-runner. Because of his conservative platform and evangelical appeal, he’s benefited the most from a declining Carson. And he’s just waiting for the Donald to implode to scoop up the fed up anti-establishment Trump voters.

Third, the Holy Trinity.  The three key indicators of a candidate’s success according to the NY Times are polling in early states, endorsements, and fundraising.  Cruz is rising in national polls and is likely to win Iowa,  he is attracting endorsements (though few have been forthcoming to any GOP candidate this early on), and has raised the most money as a candidate (and is second for outside groups, behind Bush).

But here is where it gets interesting (and tricky for Cruz): Winning the Presidency. He’s running on a pure conservative platform, and as we’ve seen in the Senate, he has a no-compromise approach to government. To govern, well, government is an exercise in compromise. Cruz will not be able to do any of the things he promises without bi-partisan support. And the problem with being a dyed in the wool conservative is that it’s a narrow approach (that has never won the Presidency-we could argue about whether Reagan was as principled a conservative, but I’ll leave that to another day). To ultimately prevail, Cruz needs moderate republicans, independents, and he also needs democrats. He needs youth, and he needs non-white voters. His position on women’s health and planned parenthood fly in the face of the views of most Americans. He wants to ban abortion, with no exceptions. He is a climate change denier. He wants to abolish the IRS and eliminate five governmental agencies, including the departments of energy and education. He wants to defund the National Endowment for the Arts and Humanities, HUD, and many federal climate and environmental research programs. This is pretty extreme stuff, and while it resonates with many on the right, it does not resonate with many in the middle. And to win, Cruz needs the middle.

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The GOP Debate & War Crimes

Tuesday’s GOP debate featured an enormous amount of highly aggressive interventionist-speak on foreign policy and national security matters, particularly Syria and ISIS. Perhaps most frightening was Ted Cruz’s re-assertion that he would “carpet bomb” areas where ISIS fighters were embedded, and Donald Trump’s refusal to back down from an earlier assertion that he would kill the family members of ISIS terrorists. In fact the aggression and war-speak was so wide-spread among candidates, save Rand Paul, that over the course of the debate, I found myself almost normalizing to the tone and tenor of the conversation.

In the cold light of day, a few thoughts come to mind. Any of these candidates, if and when they become the GOP nominee, are going to have to stand behind what they said on Tuesday. For Rubio, that’s Bush doctrine interventionism – remember those hugely unpopular wars in Afghanistan and Iraq? For Trump, that’s a plan that is illegal under both U.S. and international law, including the Geneva Conventions (which, by the way have been adopted into the U.S. Uniform Code of Military Justice). For Cruz, this is the second time he’s talked about carpet bombing until the “sand glows.” First, carpet bombing is considered a war crime, and something the U.S. has not engaged in since the Vietnam War. Second, he said “carpet bombing” on Tuesday night, but then went on to describe something that is actually the opposite of carpet bombing.

Rubio is more knowledgeable in this space, as a member of the Senate Committees on Foreign Relations and Intelligence, but he was offering what the country rejected after eight years and two costly (in all senses of the word) wars under George W. Bush. What Trump and Cruz offered was an uber-aggressive solution, that violated all sorts of U.S. and international laws, that seemed to be backed up by limited (in the case of Trump, very limited) knowledge of national security, military tactics, and the enemy itself.

 

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Affirmative Action on the Chopping Block?

The outsized (and largely unknown) power of conservative public interest law groups to bring fundamental change to important constitutional principles is on display this week in the Supreme Court.  Two cases scheduled for oral argument have been brought by the Project on Fair Representation, a group opposed to affirmative action in education and government contract awards, and the creation of what it calls racially gerrymandered voting districts. PFR and other similar groups have been punching above their weight for decades, a force in striking down labor laws, placing increased burdens on women seeking abortion (such as requiring abortion clinics to meet highly stringent health and safety standards and requiring doctors to have admitting  privileges at local hospitals), and enhancing corporations’ free speech rights, enabling the creation of Super PACs (a-la Citizens United).

PFR this week is seeking to remove any kind of race-based preferences at the University of Austin, Texas, in Fisher v. University of Texas at Austin. Any kind of affirmative action measure is required to be examined with the highest level of court review – “strict scrutiny” – PFR and Fisher (a white student who sought, and was denied, admission to UT) argue that UT’s admissions system violates Fisher’s (and others’) 14th amendment right to equal protection under law.   Technically, this case is about whether the Fifth Circuit (to whom the Supreme Court referred this case back to in 2013) actually applied strict scrutiny when it upheld UT’s race conscious admissions process.  But more broadly, it could present an opportunity for the Court to strike down affirmative action in university admissions in their entirety on the basis that they are racially discriminatory and therefore prohibited by the Constitution.

PFR this week is also seeking to bring down the way Texas state legislative voting districts are drawn in Evenwell v. Abbott, arguing that because they are drawn to encompass equal numbers of people, rather than equal numbers of voters, the districts violate the “one person, one vote” principle of the 14th Amendment’s Equal Protection clause. Put simply, the voters who brought the case argue that because they vote in senate districts with a high proportion of people who actually vote, their votes are worth less than other voters in districts with a smaller proportion of people who actually vote. As Adam Liptak explained in the New York Times, like in Texas, “most places count everybody. That amplifies the voting power of places with large numbers of residents who cannot vote – including children, immigrants who are here legally but are not citizens, unauthorized immigrants, and people disenfranchised after committing felonies.  Those places tend to be urban and to vote Democratic.”  A victory for PFR and Evenwell would favor Republicans, because voting power would be shifted from more highly populated urban areas (that tend to vote Democratic) to rural areas (that tend to vote Republican).  Importantly, this decision won’t have any effect on federal level congressional districts apportioned to each state because the U.S. Constitution sets out clearly that those districts are to be divided based on number of people (and not number of voters).

For both these cases, expect to see decisions along ideological lines.  As to affirmative action, Justice Thomas, himself a beneficiary of race-based admissions at Yale Law School, has been the court’s harshest critic of affirmative action.  Chief Justice John Roberts agrees, writing in 2007 that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The statement might have superficial allure, but it ignores the deep roots of institutional racism and discrimination that cannot be remedied by pretending it does not exist.  Justice Sonia Sotomayor, Like Justice Thomas, benefited from race-based admissions programs.  Unlike Thomas, she has spoken publicly and personally about the virtues of affirmative action, writing that “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

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Supreme Court Could Rule Assault Weapon Ban Constitutional

People on both sides of the gun debate have been waiting since the middle of September to hear whether the Supreme Court will take up Friedman v. City of Highland Park, the most important Second Amendment case since District of Columbia  v. Heller – the 2008 case where the court threw out a DC handgun ban (and other gun restrictions) and ruled that the Second Amendment right to bear arms is an individual right, not a right connected to service in a militia (and weakening the position of advocates for greater gun control).  Ironically, language in the Heller decision, which was written by uber-conservative Justice Scalia, might pave the way to protecting Highland Park’s assault weapons ban.  In Heller, Scalia wrote that the Second Amendment isn’t universal and unrestricted or absolute – that it doesn’t protect the “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”  He went on to say that the right to possess military-grade weapons (arguably, like the assault weapons banned by Highland Park) is not protected by the Second Amendment because those are not the kind of weapons typically possessed by ordinary citizens. Remember, Scalia is an “originalist,” looking to the meaning of the term “arms” when the Second Amendment was drafted…

Of the three possible outcomes here, two would be victories for gun control advocates: If the court doesn’t take up the case, Highland Park’s assault weapon ban will stay in place, and you can expect to see similar bans enacted across the country.  If the court takes up the case and Highland Park wins, its assault weapon ban stays in place.  Again, expect to see similar bans enacted across the country.  But if Highland Park loses, it could lay wide open the right to own and use some pretty serious weaponry.  This is important.  Stay tuned….

A quick reminder of the full text of the Second Amendment below:

A well regulated militia, being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed

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Donald Trump, Branding Virtuoso

Whether you love him or hate him (and polls widely indicate that it’s one or the other), it’s hard to deny that Donald Trump is a marketing genius.  His campaign for the GOP nomination is, quite literally, reality TV.  It’s “America’s Got Talent” meets “Survivor” meets “The Amazing Race.”  Seeking approval from the American public in a closed quarters elimination match, he travels the country – a showman with a soap box, from debate stage to football arena – asking if we’ll vote everyone else off the Island.  He picks fights, switches allegiances, and makes grandiose promises (like that wall the Mexicans are going to build for us).  Trump smashed the old rules and wrote new ones.  And guess what. He’s winning at his own game.

Disliked by many because of his shameless self-aggrandizement, Trump’s latest genius move was his self-deprecating turn guest hosting Saturday Night Live. There are few things more universally appealing than when the gods of sport, entertainment, or politics, whom we assume (often, rightfully) have lashings of ego and cool, tear down that façade with kooky dance moves and chicken costumes.  Such anti-celebrity behavior has become a cornerstone of SNL.  Think Tom Brady sexually harassing co-workers in tighty whiteys.  Peyton Manning pelting kids with footballs as United Way warns parents to spend more time with their kids (so he doesn’t).  Donald Trump as a CPA in a wide tie and milk bottle glasses dancing awkwardly to a Drake tune…

Trump’s decision to run for President, which had to be understood to be a profile-raising endeavor regardless of its outcome, has turned into a real campaign, with longevity that exceeded the expectations of many pundits (myself included), as well as many in the GOP establishment.  The beauty of it all for Trump is that whatever happens now, win or lose, he’s won. Trump has gained a certain kind of omnipotence, if not as POTUS, but as “Trump being Trump.”   A Cruz or Rubio presidency can only last eight years.  But being the Donald? Well, that’s forever.

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