Law

Don't Let the Bush Administration Off the Hook For Torture

There's a new report out today from McClatchey on the CIA's torture program based on that Intelligence Committee report. They got a closer look at it than journalists have before, so there are some more details. But there's a danger in how this could be interpreted that will serve to let people who were complicit in the torture program off the hook, so we need to be careful about how we deal with this information. But first, here are their bullets: The CIA used interrogation methods that weren’t approved by the Justice Department or CIA headquarters. The agency impeded effective White House oversight and decision-making regarding the program. The CIA actively evaded or impeded congressional oversight of the program. The agency hindered oversight of the program by its own Inspector General's Office. And now to put this in context: The Justice Department's Office of Legal Counsel found that the methods wouldn't breach the law because those applying them didn't have the specific intent...

How John Paul Stevens Would Amend the Constitution

AP Images/Manuel Balce Ceneta
What made John Paul Stevens's contributions in his 35 years on the Supreme Court so invaluable was not just the votes he cast but his fiercely intelligent idiosyncrasies. On issues ranging from the fundamental incoherence of trying to use different categories of scrutiny to apply the equal protection clause to the Establishment Clause, to problems presented by the Religious Freedom Restoration Act, to racial discrimination in the War on Drugs, Stevens carved out unique positions that have generally aged much better than the alternatives. So it's gratifying that Stevens has not retired in silence, instead providing valuable commentary on constitutional controversies including the right to vote and the American criminal justice system . Stevens's new book , Six Amendments: How and Why We Should Change the Constitution , represents another valuable and accessible contribution to the country's constitutional discourse. The premise of the book is accurately captured by the title, which...

Yes, Being a Woman Makes You Poorer

AP Images/Susan Walsh
S enate Republicans blocked the Paycheck Fairness Act yesterday, a bill that would make it illegal for employers to punish workers for discussing wages and would require them to share pay information with the Employment Opportunity Commission. President Barack Obama has already signed an executive order prohibiting federal contractors from punishing employees who talk about their pay. These two actions were pegged to the somewhat made up holiday called “Equal Pay Day” celebrated Tuesday, and were discussed by many in Washington in merely political terms : evidence of attempts by Democrats to woo women voters and a continuing sign of Republicans' “difficulties” with them. Elsewhere, pundits and writers wanted to discuss whether the pay gap really existed. A few years ago, some conservatives and a few liberals began to attack the much-talked-about fact that women make 77 cents to every man’s dollar as untrue, based largely on the idea that the gap itself was mostly accounted for by...

Fetal Abnormalities: The Next Minefield in the Abortion Wars?

AP Images/Steve Helber
I n January, two legislators in Virginia’s House of Delegates introduced a bill that should have been uncontroversial. The bulk of HB 612 created new rules for genetic counselors practicing in the state, who had been unregulated and unlicensed. The roughly 95 genetic counselors already working in the state, screening pregnant women and adults for serious inheritable conditions, favored the law, which they saw as an extra layer of patient protection. The bill was so innocuous that by the time it passed in the House in late February, no one seemed to have noticed that it contained a conscience clause so sweeping that could allow counselors to refuse to provide fetal test results for conditions like Down Syndrome or Tay-Sachs Disease—the information patients came to them for in the first place—if they believed it could cause a woman to terminate her pregnancy. Originally, the bill had only created a loophole for genetic counselors who want to refrain from offering information about...

Beyond Corruption

AP Images/Mark Lennihan
T here was a time in our history, thankfully long past now, when bribery was common and money's slithery movement through the passages of American government was all but invisible, save for the occasional scandal that would burst forth into public consciousness. Today, we know much more about who's getting what from whom. Members of Congress have to declare their assets, lobbyists have to register and disclose their activities, and contributions are reported and tracked. Whatever you think about the current campaign finance system, it's much more transparent than it once was. But if outright bribery is rare, should we say that the system is good enough? It's a question we have to answer as we move into a new phase of the debate over money in politics. In the wake of last week's Supreme Court decision in McCutcheon v. F.E.C. , many liberals are nervous that the Court's conservative majority is poised to remove all limits on how much can be donated to candidates and parties. For their...

It’s Andrew Cuomo’s Fault!

AP Images/Evan Agostini
T his year was supposed to be different in New York. After failing to pass a comprehensive public financing system during the last legislative session, advocates for the measure believed this year, they would get the deed done, and New York state would match small-dollar donations with public funds, allowing campaigns with low-level donors to compete with those whose supporters can write big checks. But on Tuesday, the effort to get public financing in New York had been dealt a major (if not a fatal) blow. Highlighting the stakes of such legislation, Wednesday morning the United States Supreme Court removed one of the last vestiges of the nation’s campaign finance system, banning caps on the total amount individuals can give to candidates in the McCutcheon v. FEC decision. Now, the progressives who formed the Fair Elections Campaign have begun a new set of strategies to pass their public financing plan, largely by going to war with the most powerful Democrat in the state—Governor...

The Obscure Heroes Behind Congress’s Great Moment

AP Images
O n Tuesday July 2, 1963, Assistant Attorney General Burke Marshall caught an early morning flight to Dayton, Ohio. Six days before, Marshall’s boss, Attorney General Robert F. Kennedy, had appeared before a House Judiciary Subcommittee to present the newly introduced civil-rights bill that his brother, President John F. Kennedy, had committed himself to enacting during a powerful nationwide television address on June 11. The Kennedy brothers’ outspoken attachment to advancing racial equality was entirely newfound. For the first two years of the Kennedy administration, civil-rights activists had been repeatedly disappointed by the brothers’ unwillingness to live up to the promises John Kennedy had voiced during the 1960 presidential campaign. Only the horrific violence visited upon interracial groups of “Freedom Riders” in May 1961, as they sought desegregation of interstate bus stations, and white racists’ attacks upon federal officers during the October 1962 desegregation of the...

Will Disclosure Save Us From the Corrupting Influence of Big Money?

You'll have to do a lot better than that. (stockmonkeys.com)
There is going to be a lot of speculation about how the Supreme Court's decision in McCutcheon v. FEC to eliminate the aggregate limits on campaign contributions will affect the influence of big money in politics. That's because it serves to make an already complex system a little more complex, and there are multiple ways the decision could matter; on the other hand, it might make no difference at all. For the moment, I want to consider the role of disclosure, because I think it's going to become increasingly important in the near future, particularly if the Court goes all the way and eliminates all contribution limits. It should be said that in this case, they could have done that, but decided not to (only Clarence Thomas, in a concurring opinion, advocated eliminating all limits). But there is some reason to believe that the conservatives on the Court will go there eventually. And if they do, disclosure is going to be their justification: that as long as we know who's giving money...

Roberts Court: Government Must Be By, and For, the Wealthy

AP Images/Dana Verkouteren
Everyone who thinks that the rich don't have enough influence on American politics can rest easier. In an expected but still depressing decision today, the Supreme Court struck down aggregate limits on how much an individual can donate to politicians and political parties within a 2-year window as a violation of the First Amendment. Having already made it impossible for Congress to place significant restrictions on campaign spending, a bare majority of the Court is now chipping away at the ability of Congress to place limits on donations as well. It must be said that Chief Justice Roberts's plurality opinion in McCutcheon v. FEC has a certain logic if one accepts the key underlying premise. Relying on the Court's 1976 opinion Buckley v. Valeo , Roberts argues that the only legitimate reason for limiting campaign donations or spending is to address corruption. (Under this logic, Buckley gave Congress and state governments very little leeway to restrict campaign spending, but left them...

Federal Court Upholds Texas's War On Roe v. Wade

AP Images/RON T. ENNIS/Fort Worth Star-Telegram
Last year, as much of the nation is aware thanks to Wendy Davis , Texas passed a particularly draconian abortion law. Predictably, the law has already caused abortion clinics to close, and by the end of the year there are expected to be only 6 clinics remaining to serve the nation's second-largest state. Despite the huge burdens that the statute will undeniably place on the women of Texas and despite the fact that the laws aren't designed to accomplish anything but to make abortion less accessible, a 3-judge panel of the 5th Circuit Court of Appeals has upheld the law . And, depressingly, the court's decision could well survive review by a Supreme Court that is almost as hostile to the reproductive rights of women. Under the Supreme Court's 1992 decision Planned Parenthood v. Casey , which at least formally upheld Roe v. Wade , pre-viability regulations of abortion are constitutional if they do not impose an "undue burden" on a woman's right to choose. One might think it obvious that...

More Than Corruption Threatens the Integrity of Our Democracy

AP Images/Pablo Martinez Monsivais
W hat does it mean to corrupt an elected official? A coal executive walks into a member of Congress’s office with a $100,000 check in hand and says, “I will hand you this check if, and only if, you vote against any fracking permits on federal land—it’s bad for the local water supply, and besides I don’t need the competition.” The Representative accepts the check and then votes “nay” when the time comes. Is that corrupt? Most people would say yes—it’s a paradigm case. After all, there is a quid pro quo exchange—you do this, I give you that. Does it make a difference if that check goes into the Congressman’s personal pocket, his campaign account, or to an allied Super PAC? Probably not to most people. The Congressman wants to be re-elected, probably more than he wants a Porsche, so either of the latter scenarios certainly provides a thing of value. Now what if an environmental group walks into the same Congressman’s office and says “We’re here to talk to you about the upcoming vote on...

Yet Another Legal Attack on Obamacare

AP Images/Pablo Martinez Monsivais
On Tuesday, federal courts heard two of the seemingly endless ad hoc legal challenges generated by Republicans opposed to the Affordable Care Act. Most of the attention was captured, for good reason, by the arguments at the Supreme Court , which concerned the claims by Hobby Lobby and other corporations that they should be exempt from the Affordable Care Act's requirements that insurance cover contraceptives. But a lawsuit with the potential to do far greater damage to the Affordable Care Act went before the D.C. Circuit as well. In a more rational universe, these arguments would be laughed out of court—but the oral arguments suggest that there are still numerous Republican judges willing to damage the Affordable Care Act by any means necessary , even if it means accepting arguments virtually nobody would have taken seriously five years ago. This challenge to the ACA is based on a drafting error in the law. In addition to a major expansion of Medicaid (which the Supreme Court severely...

Hobby Lobby and the Return of the "Negro Travelers' Green Book"

Jalopnik
V ictor Green loved to travel. Being a mail carrier in the mid-20th century was a good, solid job, and the heyday of the American automobile was just beginning. Americans felt more mobile than ever before, especially once Eisenhower's interstate highway system expanded like a web through the country. The freedom of the open road beckoned. But Victor did not feel particularly free. As an African American, much of the nation was closed off to him and his family. Hotels rented rooms only to whites; restaurants wouldn't take his money; shops and markets kept their doors shut. Jim Crow was everywhere. So he wrote the first travel guide for African Americans, listing restaurants, hotels, gas stations, and even private homes that would aid the “Negro Traveler.” Known as The Green Book, it was an essential part of African American life for more than 20 years. By 1952, it had expanded its listings to include barbershops, bars, and nightclubs. Such a guide was essential, since each particular...

Ruth Bader Ginsburg, Retirement, and the Value of Term Limits

AP Images/J. Scott Applewhite
T here is a debate among liberal intellectuals about whether it's appropriate to urge Ruth Bader Ginsburg to step down with the Democrats still in control of the Senate and White House. It's a discussion that brings up a lot of fascinating questions of public obligation and the respect due to individuals. But the key takeaway should be this: The decision about whether to retire should be taken out of the hands of individual justices. The argument for Ginsburg stepping down now, made most recentl y by the eminent legal scholar and dean of the law school at the University of California-Irvine, Erwin Chemerinsky, is straightforward and compelling on its own terms. If Ginsburg remains on the Court and leaves the Court with a Republican occupying the White House, the most likely result would be Antonin Scalia or John Roberts being the median vote on the Supreme Court. This would be a disaster for the country and, more to the point, for the values that Justice Ginsburg has spent her life...

The Strange Bedfellows of the Anti-Contraception Alliance

AP Images/Patrick Semansky
AP Images/Patrick Semansky O n March 25, lawyers representing the owners of a large purveyor of craft supplies and a much smaller cabinetry business will appear before the Supreme Court in what has become the cornerstone case for opponents of the Affordable Care Act’s “contraception mandate.” Under the mandate, all employers—with the exception of religious organizations like churches—must include free birth control under their insurance plans. Catholic schools, hospitals, and social service agencies immediately raised a ruckus. Dozens of Catholic nonprofits filed lawsuits against the government, arguing that because their tradition forbids them from using birth control, paying for it—even indirectly through insurance—would violate their religious liberty. The cases that will appear before the highest court deal with a different question: whether the owners of corporations can claim religious liberty exemptions. But there’s a stranger and less remarked-upon twist. The owners of both...

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