Last week, a decision by the D.C. Circuit Court of Appeals provided an excellent example of how both presidential action and inaction can matter. Because of the former, the National Labor Relations Board had issued a rule intending to alleviate the power disparities between workers and employers. But in part because of action by Republican presidents and inaction by Democratic presidents, the rule is no longer in effect. And while the outcome of the case is hardly surprising, the sheer radicalism of the court's holding is yet another sign of how in the tank much of the powerful D.C. Circuit is for powerful business interests.
In today's Washington, the formation of a bipartisan committee and/or commission is generally reason to cringe. Today, however, Congress created a bipartisan committee that could deserve optimism. The House Committee on the Judiciary Over-Criminalization Task Force will address an extremely severe problem: mass incarceration in the United States.
There is very good reason for the formation of the committee. The rates of incarceration in this country are staggering. The United States imprisons more people per capita than any country in the world—not only far more than any comparable liberal democracy, but more than the world's authoritarian regimes as well. Even worse, this mass incarceration reflects and exacerbates racial and economic inequalities. As scholars such as Michelle Alexander and Becky Pettit have shown in chilling detail, mass incarceration has taken a massive toll on racial minorities. One in every 36 Hispanic men over the age of 18—and one in 15 African-American males over the age of 18—are in prison. In many states, convicted felons continue to be formally sanctioned by the state, losing the right to vote or to join certain professions. The informal effects of having a felony conviction are even greater; particularly in a buyer's market for labor, the economic prospects of convicted felons attempting to get a job and put their lives in order are generally bleak.
Last month, federal judge Edward Korman held that the Obama administration's override of the FDA's recommendation for over-the-counter emergency contraception was illegal. The "compromise" of making Plan B available without a prescription only to women over 17, Korman persuasively argued, was "arbitrary and capricious" and hence exceeded the power of the secretary of health and human services.
The capture of Dzhokhar Tsarnaev presents an important test for federal and state authorities: Can the United States resist the temptation to violate the civil liberties of people suspected of engaging in acts of terrorism? In some important respects, we seem to have avoided the systematic civil-liberties violations of the Bush administration. But when it comes to informing Tsarnaev of his Fifth Amendment rights, Obama is buying into the myth that ordinary police process is inadequate to dealing with domestic terrorism.