Law

Checks and Balances on the Western Front

Wikimedia commons
AP Photo/Brennan Linsley T he release of the white paper justifying the Obama administration's targeted killings program—as well as the confirmation hearings for President Obama's CIA nominee John Brennan —has brought attention back to the role the executive branch plays in the abuses and overreaching that have come to define the "War on Terror." This is how it should be. While the president's power over domestic policy tends to be overrated, the president is the dominant force in military affairs. It's also true that Congress shouldn't be left off the hook. The legislative branch has substantial constitutional authority over military affairs. In the case of the War on Terror, Congress has repeatedly deferred to the White House, starting with the extremely broad Authorization for Use of Military Force against al-Qaeda in 2001. While the targeted killings memo did cite the president's Article II powers to defend the country, the most commonly cited authority for the administration's...

Can We Live Without the Assault Weapons Ban?

Flickr/mr.smashy
So yesterday, Harry Reid hinted that he'll be introducing a gun-control measure that doesn't include a new ban on assault weapons. If we assume for a moment that other proposed measures eventually pass, but an assault-weapons ban doesn't, how bad an outcome would it be? Let's start by stipulating that it is utterly insane that in this country, anybody can walk into a gun shop and walk out a few minutes later with a military-style rifle whose sole purpose is to enable its user to kill human beings as quickly and efficiently as possible. They're not for hunting, and they're not for defending your home, unless you're Tony Montana. The fact that a lot of people find shooting them fun shouldn't carry any weight as a policy argument. And as we know all too well, they turn mass shootings more deadly. On the other hand, one of the arguments gun advocates make is that the kind of weapons that would be outlawed (for future sales, anyway) under an assault-weapons ban don't kill all that many...

License to Kill

WikiMedia Commons
In a major reportorial coup, NBC's Michael Isikoff has uncovered the "white paper" that the Obama administration used to internally justify extrajudicial killings in the "war on terror." Not only has Isikoff performed a valuable service by making the memo available to the public, this will also be the first time it had been made available to most members of Congress . The memo, unfortunately, will not reassure anyone who thinks that the Obama administration has continued much of the Bush administration's overreaching. The document lays out three conditions justifying killings ordered by the executive branch. First, an "informed, high-level official" in the United States government must determine that an individual poses an "imminent threat of violent attack against the United States." Second, the capture of the individual must be "infeasible." And, third, the operation must be conducted in a "manner consistent with applicable law of war principles." When these conditions are met, the...

How the NRA Is Helping to Pass Gun Control

We're in the early stages of a lengthy process that will involve hearings, competing bills, horse-trading, and the usual ugliness of life in the Capitol Hill sausage factory, but the contours of gun legislation are beginning to take shape. Though President Obama is out campaigning for the full package of reforms he has been advocating, there are indications that the assault weapons ban may get dropped in order to forestall a Republican filibuster in the Senate, and a bipartisan group is about to introduce a bill in the House on gun trafficking and straw purchases. (I'll discuss the assault weapons question in a later post). In other words, the actual legislative process is getting underway. And though it's by no means assured that some gun measures will pass Congress, if any do, we'll partly have the NRA to thank. That's because, I believe, the organization fundamentally misread the role it plays in the minds of the average voter. They've become more extremist in the last two decades...

Our Customers Don't Want a Pregnant Waitress

Fox Searchlight
Having a family shouldn’t cost you your job. It does, again and again—especially if you’re female. Which is one of the reasons women’s pay still isn’t equal. I’ll be writing about this in the months to come, but for today, here’s one way having a family can cost you your job: women still get fired for being pregnant. Although it’s been illegal since the 1978 Pregnancy Discrimination Act , women are still refused a job or let go if they’re pregnant. You’d be shocked, EEOC and employment law folks tell me, at how often employers say so point-blank: Come back after you have the baby . The guys don’t want to look at a pregnant waitress . Housekeeping is hard work; your pregnancy is a potential liability. Our customers are uncomfortable with a pregnant driver . All that’s illegal. It’s wonderful that we can talk about Sheryl Sandberg going home every day at 5:30 to be with her kids. And it’s wonderful that we can have the advanced conversation about women needing to stand up for themselves...

How to Vote Down Voter ID

Minnesotans defeat the GOP’s plan to restrict the franchise.

Flickr/cursedthing
Flickr/cursedthing I n late October, two weeks before the election, amid the glut of attack ads, a TV commercial appeared in Minnesota that grabbed everyone’s attention. It opens on former Governor Arne Carlson, a Republican, who is a familiar and beloved figure in the state, looking into the camera. “This voter-restriction amendment is way too costly,” he tells viewers. An image of $100 bills flashes to his right. Carlson’s jowls quiver as he solemnly shakes his head. An American flag hangs behind his shoulder. Fade and cut to Mark Dayton, the state’s current governor, a Democrat, on the right half of the screen. “And it would keep thousands of seniors from voting,” Dayton continues, his Minnesota accent especially thick. As he speaks, a black-and-white photo of a forlorn elderly woman appears. In a year when the two parties seemed to agree on little except their mutual distaste for each other, here was a split-screen commercial with a Democrat and a Republican, the only bipartisan...

New Marijuana Laws: Just a Smokescreen

Flickr/Rupert Ganzer
Flickr/Rupert Ganzer A medical marijuana dispensary across the border in Portland, Oregon. B efore Washington state voters legalized marijuana in the 2012 election, pot was easy enough to access on the black market. Five percent of state residents have used the drug in one form or another while burning through a remarkable 187,000 pounds per year, according to estimates by Washington’s Office of Financial Management. Getting high without getting arrested wasn’t much of a problem, either. Washington decriminalized medical marijuana 15 years ago, and today dozens of dispensaries are operating under protection of state law. In addition, Washington’s biggest city, Seattle, had instructed its police force to treat personal possession of marijuana as the lowest law-enforcement priority. So what’s the big deal about legalization in this already weed-friendly state? The new law doesn’t end the legal battle over marijuana so much as it changes the rules of engagement: Growers and dealers can...

Why Playwrights Aren't Political Analysts

Flickr/David Shankbone
During last year's presidential campaign, journalist Buzz Bissinger got some attention for writing an opinion piece explaining that he was voting for Mitt Romney because Barack Obama hasn't done enough to end poverty, which is kind of like saying you're switching from salad to Big Macs for lunch because you're trying to lose weight and salad has calories. For people familiar with Bissinger's extraordinary reportage, including books like Friday Night Lights and A Prayer for the City (one of the best books about big-city politics ever written), it was a shock. How could such a great reporter produce something so infantile and bereft of the simplest familiarity with logic? Then people took a look at Bissinger's Twitter feed and discovered that he spews out a puzzling combination of incomprehensibility and general assholishness. (sample tweet: "Romney lost was a suck candidate as it turned out. But every fucking liberal who whines about pro football should be forced to play it." Um,...

Employees? Consumers? Feh!

Flickr/Scott Lenger
Should the Supreme Court uphold it, last Friday’s decision by three Reagan-appointees to the D.C. Circuit Appellate Court appears at first glance to rejigger the balance of power between Congress and the president. The appellate justices struck down three recess appointments that President Obama had made to the five-member National Labor Relations Board during the break between the 2011 and 2012 sessions of Congress partly on the grounds that Congress wasn’t formally in recess, since one and sometimes two Republicans showed up to nominally keep it in session for the sole reason of denying Obama the right to recess appointments. Two of the three justices went further, ruling that the president can’t really make recess appointments at all. It’s not that Obama has made a lot of recess appointments. He’s only made 32—compared to the 171 made by George W. Bush; one of Bush’s appointees was John Bolton to the post of UN ambassador. Presidents have been making recess appointments since the...

The D.C. Circuit Court's Chaos Theory

Flickr/Kim Davies
O n Friday, a three-judge panel on the D.C. Circuit Court of Appeals ruled that President Obama's recess appointments to the National Labor Relations Board—the U.S. agency charged with remedying unfair labor practices—were unconstitutional. The opinion—written by highly partisan Reagan appointee David Sentelle—would effectively remove the president's power to make any recess appointments at a time when counterbalances to an obstructionist Senate are more necessary than ever. The key legal question addressed by the court concerns the president's power to make appointments without the "consent" of the Senate while it is in recess. There is no question that the Senate is in "recess" after a session of Congress has formally adjourned. In a longstanding practice going back to the administration of Andrew Johnson, however, presidents have considered the Senate in "recess" during any substantial break. As the Obama administration noted in its legal memo defending its recess appointments, the...

Freedom to Choose, Freedom to Marry

Is sex evil unless it leads directly to babies? Is marriage only legitimate if it fosters offspring, or is it also for intimacy? The U.S. Supreme Court issued three decisions between June 7, 1965 and Jan. 22, 1973 that collectively give the answer: No. Roe , the last of them, can be thought of as the exclamation mark. As we reflect on the 40th anniversary of that decision, there's another group that has Roe to thank for the rights it enjoys today: LGBT Americans. While many of us in the LGBT community see parallels between the gay and women's rights movements, we often overlook the direct role of Roe in establishing a right to same-sex marriage: If women are permitted to have sex without offspring—even if their contraception fails and those little cells start dividing inside them—then it must also be okay for women and women, or men and men, to have sex without the possibility of fertility. Reproductive freedom and LGBT freedom are two sides of the same idea. To explain, let me take...

Mississippi's Last Abortion Provider

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T welve years ago, Dr. Willie Parker was at home listening to Martin Luther King, Jr.’s “I’ve been to the mountaintop” sermon. Parker had heard the words many times before. But this time, he found himself focusing on King’s interpretation of the Bible story of the “good Samaritan,” who stopped to help a man who had been left for dead by robbers. Though others had passed the man by, the Samaritan stopped, King explained, because he didn’t think about the harm that might befall him if he did. Instead, he asked what might happen to the dying man if he did not. Parker, an ob-gyn who had been practicing for 12 years at the time, suddenly felt that King’s words held meaning for his own work. Having grown up in a religious family that was active in the Baptist church (Parker was “born again” and preaching the gospel at 15), he had been brought up to believe that abortion was wrong. Up to that point, he had never provided one. He’d refer women to other providers, but was too conflicted about...

Bill Clinton, Still Wrong about Guns

Flickr/Tim Hamilton
I've spent a good deal of time in the last year pushing back against the twin myths that the NRA delivered Congress to the Republicans in 1994, and then delivered the White House to George W. Bush in 2000. And no one is more responsible for the propagation of those myths, and the fear they inspire among Democratic office-holders, than Bill Clinton. For years, he has told anyone who'd listen that Democrats lost the House in 1994 because he passed an assault weapons ban and gun owners punished his party for it. He'll also say that guns were the reason Al Gore lost to George W. Bush in 2000. And now, at a moment when the prospects for meaningful restrictions on gun proliferation are greater than they have been in two decades, he's at it again. In a speech to Democratic donors, Clinton said the following: Clinton recalled Al Gore's 2000 campaign against George W. Bush in Colorado, where a referendum designed to close the so-called gun show loophole shared the ballot with the presidential...

What's Left of Roe

Barack Obama's re-election might make the landmark decision safe for now, but its meaning has eroded over the years.

(AP Photo/Pablo Martinez Monsivais, file)
Since the ruling was handed down 40 years ago today, Roe v. Wade— which held that the constitutionally guaranteed right to privacy included a woman's right to choose to have an abortion—has been subject to an ongoing legal and political assault. This assault has not succeeded in getting the decision overturned. But it has caused the scope of the opinion to become narrower in ways that have disproportionately affected the rights of women of color, poor women, and women in isolated, rural areas. The re-election of Barack Obama might make Roe safe for the time being, but it is worth taking stock of how its meaning is being eroded and what the future battles would be. The first major conservative victory in the struggle to narrow Roe v. Wade was the Hyde Amendment, which prohibited Medicaid funds from being used to provide abortion services. The Hyde Amendment split the pro- Roe v. Wade coalition on the Supreme Court, and was ultimately upheld in a 1980 5-4 decision . Three of the...

Here a Gun, There a Gun, Everywhere a Gun

A gentleman exercising his rights in a way that won't make anyone else uncomfortable. (Flickr/Teknorat)
As Jaime and I noted yesterday, many Democratic politicians feel the need to preface any discussion of guns with an assurance that they, too, own guns and love to shoot, as though that were the price of admission to a debate on the topic. But what you seldom hear is anyone, politician or otherwise, say, "I don't own a gun and I don't ever intend to" as a statement of identity, defining a perspective that carries moral weight equal to that of gun owners. So it was good to see Josh Marshall, in a thoughtful post , say, "Well, I want to be part of this debate too. I'm not a gun owner and, as I think as is the case for the more than half the people in the country who also aren't gun owners, that means that for me guns are alien. And I have my own set of rights not to have gun culture run roughshod over me." Let me tell you my perspective on this, and offer some thoughts on the question of what sort of a society we want to have when it comes to the question of guns. Because there are two...

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