April 2012

  • April 18, 2012

    by Jeremy Leaming

    Do we need another chart or study or poll to remind us of how clueless a nation we can be at times? More than likely the answer is a resounding “no.” 

    But nonetheless, The Washington Post’s Chris Cillizza points us to 2010 Pew poll, which shows that many do not know the basics about the nation’s top court. According to the survey, 54 percent do not know who the Supreme Court’s Chief Justice is, and eight percent believe that Thurgood Marshall, who died in 1993, is the Chief Justice. At the time, four percent thought Sen. Majority Leader Harry Reid was the Chief Justice.

    Cillizza suggests that a survey might not look so sad now, especially since the high court’s opinion in Citizens United v. FEC, and recent oral argument in the health care reform law case, have garnered widespread attention. Still Cillizza concludes we must remember, “Regular people are simply not engaged – they don’t know or care – about the intricacies of the government in a way that people who live inside the Beltway and spend their lives in politics are.”

    But really, are we talking about the “intricacies of the government”? Yes, there are state Supreme Courts, but there’s only one U.S. Supreme Court with nine sitting justices, including the chief justice – that’s John Roberts Jr.  

  • April 18, 2012

    by Nicole Flatow

    During Supreme Court oral argument yesterday on whether the law that reduced the disparity in crack/powder cocaine sentencing should be applied to those already convicted, Justice Sonia Sotomayor honed in on the discriminatory history that led to the passage of the Fair Sentencing Act.  

    “I always thought that when discrimination was at issue, that we should do as speedy a remedy as we could, because it is one of the most fundamental tenets of our Constitution, as has been  repeatedly emphasized in case after case, that our laws  should be -- should be enforced in a race-neutral way,” she said.

    She added: “I've been a judge for nearly 20 years, and I don't know that there's one law that has created more controversy or more discussion about its racial impact than this one.”

    The 2010 law did not eliminate the disparity between those convicted of crack offenses and those convicted of powder cocaine offenses, but it did drastically reduce the ratio from 100-to-1 to 18-to-1. Before the law was passed, the penalties for crack cocaine were “the harshest ever adopted by the U.S. Congress” and 79 percent of defendants in crack cocaine cases in 2010 were African American, the Sentencing Project’s Kara Gotsch explains in a recent American Constitution Society Issue Brief on the Fair Sentencing Act’s passage.

    She writes:

  • April 18, 2012

    by Jeremy Leaming

    The public interest groups fighting to temper the influence of the well-funded rightist outfit that helped write Florida’s so-called Stand Your Ground law, and lobby other states to enact similar measures, are not easing their efforts to encourage corporate America to rethink its support of the group.

    After ALEC, the American Legislative Exchange Council, announced that it was shuttering its dubiously dubbed “Public Safety and Elections” task force, which pushed the Stand Your Ground laws and other measures to suppress voting, groups, such as ColorOfChange denounced the move as a desperate effort to stop corporate sponsors from fleeing.

    ALEC’s latest statement is nothing more than a PR stunt aimed at diverting attention from its agenda, which has done serious damage to our communities,” said ColorOfChange Executive Director Rashad Robinson.

    In announcing its move, ALEC said in a press release that it was redoubling its “efforts on the economic front, a priority that has been the hallmark of our organization for decades,” which is apparently all about helping corporations reap greater profits.

    The tragic death of the Florida youngster Trayvon Martin (pictured) at the hands of a so-called neighborhood watchman, sparked national outrage and drew attention to the Stand Your Ground Laws, which a New York Times columnist wrote is “tempting to dismiss” as “the work of ignorant yahoos.” (For instance one could image a yahoo, such as the lame, one-hit-wonder, washed-out “rocker,” Ted Nugent, as itching for this type of law, which essentially gives legal protection to those who kill others outside their homes, if they claim they did so in self-defense.)

    But, the Stand Your Ground law was strongly backed by the NRA, which the yahoo Nugent is a member, and essentially the product of ALEC, which has enjoyed years of corporate backing.

    After Martin’s death, ColorOfChange and other public interest groups launched a campaign to educate corporations about ALEC’s real agenda.

    The campaign has had success, prompting 11 corporations to cut its ties to ALEC, and irking the right-wing editorial board of The Wall Street Journal, which whined about “the bullying of big business.”

  • April 17, 2012

    by Joseph Jerome

    When an undercover investigation by the Humane Society last week revealed “extreme animal abuse” and deplorable conditions at a massive Pennsylvania egg factory, Iowa lawmakers assuredly breathed a giant sigh of relief. Recently Iowa became the first in the nation to enact an “ag-gag” law designed to prevent and criminalize similar undercover investigations at industrial farms.

    The original version of the law introduced last year was draconian in scope, making it a crime to take or even to possess pictures from industrial farms taken without the owner’s consent. In the face of obvious First Amendment concerns that banning pictures of abused farm animals would be unconstitutional, the final law only criminalizes false statements used to obtain employment at these farms or, more ominously, attacks anyone “with an intent to commit an act not authorized by the owner.” 

    Despite the recent use of undercover reporting to reveal real problems at Iowa farms, the law’s proponents provided a litany of justifications for the law. Governor Terry Branstad (pictured) insisted that undercover films had become a serious problem and claimed H.F. 589 was necessary to protect farmers.

    Annette Sweeney, a member of the Iowa House of Representatives and a key sponsor of the legislation, argued that the law protects family farms from political motivated crime. Though the law’s only provisions detail penalties for “agricultural production facility fraud,” Sweeney actually believes the law encourages individuals to immediately report abusive farming practices.  “No person would be stopped from reporting alleged abuse,” she wrote in The Des Moines Register. “Rather, only those who have no respect for Iowa laws would be prevented from endangering animals and people in the creation of propaganda designed to support an extremist agenda.”

  • April 16, 2012

    by Jeremy Leaming

    Plenty of legal scholars and others have been unmoved by the primary argument leveled against the Affordable Care Act, the broccoli argument, and justifiably so.

    But after oral argument in HHS v. Florida, where Supreme Court Justices Antonin Scalia and Samuel Alito appeared to embrace the simplicity of the argument – if Congress can make you purchase health care insurance, there will be no limiting principle on congressional power and it will soon mandate us all to buy broccoli – expressions of astonishment and concern abound.

    In a piece for The Atlantic, Harvard Law School Professor Einer Elhauge details why the broccoli argument is not only wobbly, but dangerously flawed.

    Scalia cited the the broccoli concern during oral argument when demanding the government’s lawyer to articulate a limiting principle on Congress’s power to regulate commerce among the states.  

    Elhauge notes first that the limiting principle has already been articulated the Supreme Court as follows: “a federal law must (1) involve economic regulation (2) that addresses a national problem (3) that affects interstate commerce.”  

    Walter Dellinger, former Solicitor General, articulated a limiting principle slightly differently during an ACS briefing on oral argument, saying “the power to regulate commerce among the states extends to regulation of those purchases, which are inevitable, of goods and services, which will be provided to the individual even if they have made no arrangements to pay for them, where the cost will be shifted to others in a way that undermines an undoubtedly constitutional regulatory scheme.”

    It’s the limiting principle already adopted by the Supreme Court through other cases that the challenges are itching to change, Elhauge says. (In an ACS Issue Brief, Simon Lazarus explains the radical nature of the challengers’ agenda to topple health care reform.)

    “They want the justices to read into the Commerce Clause a new limiting principle, one that bars laws mandating the purchase of any product,” Elhauge writes. “But however attractive that kind of new limiting principle might seem, it cannot be inserted into the Constitution by judicial fiat when it lacks support in constitutional text, history, or precedent.”