David Lyle

  • May 9, 2017

    by David Lyle

    President Donald Trump has received a lot of attention – and widespread condemnation – for his attacks on federal judges. But as Assaults on the Courts: A Legislative Roundup, a new report by the Brennan Center for Justice, makes clear, Trump’s conservative allies in the states have prosecuted a far-reaching campaign to undermine state courts, strip them of their constitutionally-designated powers and deny people the rights and protections the courts are supposed to protect. That these attacks on fair and impartial courts have received so much less attention than Trump’s judge-bashing tweets makes them all the more dangerous.

    Attacks on state courts are especially troubling because these courts are the only judicial bodies most American will ever encounter. State courts handle 95 percent of the nation’s judicial business, and decide cases involving vitally important issues ranging from voting rights to criminal justice to reproductive freedom and environmental protections. As a result, powerful conservative interests have flooded state court elections with money over the past decade. As a series of ACS-sponsored studies have shown, this spending undermines justice in our courts.

    The Assaults on the Courts study documents the new fronts conservative interests have opened up in their war on the courts in the form of legislative actions that strips courts of their powers or the ability to do their jobs. It finds that:

     This year, at least 41 bills in 15 states have targeted state courts, including efforts to control the ways by which judges reach the bench, to unseat judges currently on courts and generally to restrict courts’ jurisdiction and power. While lawmakers have employed similar tactics in the past, one new trend is a group of bills that would allow state legislatures to override or refuse to enforce court decisions, potentially undermining the role of the courts in our constitutional system. So far this year, nine such bills have been introduced in seven states.

  • June 27, 2012

    by Jeremy Leaming

    Up until the $2 billion trading loss debacle at JPMorgan Chase, right-wing lawmakers in Congress, primarily the House, were feverishly working to water down with new legislative measures Dodd-Frank, the financial reform law passed in the wake of the Great Recession.

    But, as CQ Today reported, House Republicans halted their efforts “at least for now” to undercut the law aimed at ending the shady tactics employed by financial industry giants that led to the financial meltdown of 2008. Part of Dodd-Frank created the Consumer Financial Protection Bureau or CFPB, which is tasked with trying to bring some sanity to the financial industry.

    As CFPB Director Richard Cordray (pictured) said during the ACS 2012 Convention the agency is the first ever “created with the sole purpose of protecting consumers in the financial marketplace. It is not an easy task, but it is crucial because the financial marketplace is no easy place for our fellow citizens as they seek to manage their affairs.

    Cordray continued, “Our task is so crucial because, as we saw with the recent financial crisis, unregulated or poorly regulated financial markets can undermine the stability of the economy and with it the promotion of the general welfare that, as specified in the preamble to the Constitution, stands as one of the basic purposes of the federal government. For that reason, the new Consumer Bureau was also created to help ensure that the recent financial panic and economic meltdown does not repeat itself.”

    But government efforts to help the nation’s less fortunate or vulnerable run counter to the interests of the nation’s super wealthy. Columbia University business school professor Joseph Stiglitz, author of Freefall, has noted that the nation’ top one percent has the greatest sway in the nation’s capital, and that it is largely not interested in progressive legislation.

    So like the efforts to reform the nation’s health care system, which includes tens of millions of uninsured, the Right is turning to the federal bench to try stymie progress. And as noted by the Constitutional Accountability Center’s Simon Lazarus the Right and libertarians have proven their acumen in advancing their views of a radically cramped Constitution and selling wobbly legal claims to the public. 

    Media Matters’ David Lyle in a post for the organization’s County Fair blog called “First Health Care, Now Dodd-Frank: The Tea Party Constitution Rises Again,” urges progressives to be better prepared.

    “Although the legal arguments made in the suit [lawsuit lodged in federal court last week challenging the constitutionality of Dodd-Frank] are questionable, the case should not be dismissed as harmless,” Lyle writes. “The right-wing media’s proven ability to move dubious legal claims into mainstream debate combined with a conservative federal judiciary sympathetic to corporate interests mean the CFPB suit bears close scrutiny.”

    Lyle notes experts doubt the challengers have standing to lodge the lawsuit, and that at least one “financial services regulatory lawyer” has concluded it doubtful “that a court would find significant provisions of Dodd-Frank unconstitutional because of ‘general vagueness considerations.’”

  • June 6, 2012

    by Jeremy Leaming

    The libertarian argument wielded against the Obama administration’s health care reform law was propelled quickly and effectively by a right-wing “infrastructure” that has its sights set on longstanding, but weakened social safety net laws.

    Media Matters’ David Lyle says those concerned about the nation’s social safety net and the Constitution’s progressive values, “should remember how aggressively and efficiently the right was able to deploy its view of the Constitution as a weapon, and meet future attempts to do so head on.”

    Lyle cites a recent Salon piece by Northwestern University law and political science professor Andrew Koppelman, which provides a detailed examination of the evolution of the wildly libertarian argument used against the Affordable Care Act’s minimum coverage provision. That provision of the law requires Americans who can afford it, to purchase a minimum amount of health care insurance starting in 2014.

    Lyle writes:

    Koppelman's research shows that within a few months in mid-2009 the constitutional argument against health care reform went from nonexistent to a subject of mainstream discussion. Koppelman was unable to find any published claim that the individual mandate would be unconstitutional prior to a July 2009 Federalist Society issue brief written by two former Bush administration officials. In August 2009, conservative lawyers David Rivkin and Lee Casey, who regularly write on issues the right-wing legal infrastructure wishes to move into the mainstream, published a Washington Post op-ed attacking the mandate on constitutional grounds. On September 18, law professor Randy Barnett, who would play a leading role in the subsequent litigation against the act, first weighed in on the issue with a post on Politico. Koppelman notes that days later CBS News reported that "[i]n the last few days, a new argument has emerged in the debate over Democratic healthcare proposals," and that CBS mentioned that the constitutionality issue had emerged on The O'Reilly Factor and Fox News.

    The Right’s ability, Lyle continues, to define the constitutional debate “is all the more potent because it so effectively complements a highly ideological, bordering on politically partisan, conservative pro-corporate wing of the federal judiciary.”

    He notes, among other instances, a recent concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, appointed to the federal appeals court bench by George W. Bush, used her opinion to launch a screed against the federal government’s efforts to battle poverty and provide a sturdy social safety net.

  • February 9, 2012

    by Jeremy Leaming

    Earlier this week, we noted a forthcoming study by a couple of law school professors, rich with data, which reveals the U.S. Constitution’s dwindling global influence. It’s not terribly surprising, other nations' governing documents, such as the Canadian Charter of Rights and Freedoms, are more expansive than the Constitution.

    As cogently noted in this blog post by David Lyle of Media Matters For America, right-wing pundits and bloggers are going ballistic, especially over Justice Ruth Bader Ginsburg’s comments to an Egypt interviewer that there are other governing documents, such as South Africa’s constitution that she might consult if she were to draft a constitution “in the year 2012.”

    Her comment sent the right-wing blogosphere and activists into frenzy, to say the least.

    Religious Right activist Mat Staver, head of the Liberty Counsel and founder of the late Jerry Falwell’s law school, fired off a press statement calling Ginsburg’s comments “unacceptable.” He said she spoke “derisively” of the nation’s founding document, and that she has undermined the “Supreme Court as an institution dedicated to the rule of law, as well as our founding document.”

    This is typical for Staver, who is given to over-the-top rhetoric. But it’s also ridiculous. Ginsburg did not knock or degrade the U.S. Constitution in anyway, she merely pointed out the fact that there are newer governing documents that are also worthy of emulation.