2012 - %3, June

National Review: Still Publishing Bigoted Contributors

| Tue Jun. 19, 2012 4:00 AM EDT

Months after dismissing contributors John Derbyshire and Robert Weissberg for expressing flagrantly racist views, National Review is publishing a writer who suggested blacks are "the most murderous of peoples" and declared that "there's a reason the founding fathers did not give women or black slaves the right to vote."

David Yerushalmi is perhaps best known as the author of model anti-Shariah legislation that has been pushed by Republican state lawmakers across the country. Yerushalmi once proposed blocking "Shariah-adherent" immigration into the US and making it a "felony punishable by 20 years in prison to knowingly act in furtherance of, or to support the, adherence to Shariah." Since any observant Muslim could be considered "Shariah adherent," this language could apply to any religious Muslim.

As my colleague Tim Murphy reported last year, Yerushalmi has expressed an array of controversial views on race. "Some races perform better in sports, some better in mathematical problem solving, some better in language, some better in Western societies and some better in tribal ones," Yerushalmi explained in a 2006 essay. The Anti-Defamation League describes Yerushalmi as having a "record of anti-Muslim, anti-immigrant and anti-black bigotry." Though he is Jewish, he's no fan of liberal Jews either, having compared them to "a fatal parasite," according to the ADL. As Think Progress' Matt Duss noted, Yerushalmi also once wrote that "Jews of the modern age are the most radical, aggressive and effective of the liberal Elite." (Thanks?) 

At National Review, Yerushalmi is currently debating conservative writer Matthew Schmitz, who has made the perfectly reasonable argument that anti-Shariah laws at best "solve" an issue that doesn't exist (the implementation of Taliban-style Islamic law in the United States) and at worst could be used to restrict the religious freedoms of Americans who are not Muslim as well. Worst of all, Schmitz worries that "the anti-sharia movement’s implication that all Muslims are radicals amplifies resentments and fuels hate by encouraging Americans to view their neighbors with suspicion and distrust." He is hopelessly outnumbered at National Review, where many of the writers and commenters weighing in are confused at Schmitz' inability to perceive Muslim Americans as the collective Fifth Column everyone understands them to be. 

No one, however, is more outraged at Schmitz' suggestion that anti-Muslim prejudice might be at work in the Shariah-panic industry than Yerushalmi, who writes, "To even suggest, as Mr. Schmitz does, that those of us confronting the reality of transnationalism and Islamism are harboring some darker motives is, to put it mildly, patently offensive."

National Review editor Rich Lowry didn't respond to a request for comment. But when he fired Derbyshire, Lowry wrote that Derbyshire's essay (which appeared in another publication) about teaching his children to, among other things, "[a]void concentrations of blacks not all known to you personally" was "nasty and indefensible." Yerushalmi, to be sure, has a history of making statements that rise to the same category. So why, after two recent high profile episodes involving the race-tinged views of its contributors, is the National Review publishing someone whose incendiary record on race seemingly violates its standards?

 

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Corn on "Hardball": Romney's Rough Record on Immigration

Mon Jun. 18, 2012 9:18 PM EDT

David Corn and New York Magazine's John Heilemann joined Chris Matthews on MSNBC's "Hardball" to discuss Obama's immigration order and Mitt Romney's struggle to defend his own stance on immigration.

David Corn is Mother Jones' Washington bureau chief. For more of his stories, click here. He's also on Twitter.

Dealing With the Dog Days

| Mon Jun. 18, 2012 8:10 PM EDT

Last week I finally decided that summer had come early this year. It's normal for me to struggle to fill the blog during the dog days of July and August, but June? And yet, I've been struggling ever since I got back from vacation. There's just not much going on aside from campaign inanities. Summer has come early.

Boo hoo, you say? Well, Jonathan Bernstein says there's more at stake here than whether my job is a little harder than usual:

Here’s the story. First of all, the whole political world is, basically, in hurry-up-and-wait mode right now. One huge story, at least, will break soon; the Supreme Court decision on the Affordable Care Act will show up sometime in the next couple of weeks, although two weeks is still an eternity of time on the cable news networks. [But there's not much else]....All of this creates a whole lot of reporters with little to report on — and a whole lot of empty time on the cable news networks, the newspapers, the blogs, the new talk radio shows and the rest of it.

And what academic research tells us is that slow news days create scandals. That’s what Brendan Nyhan and other media researchers have found....[So] it’s no surprise that mid-summer, when lots of newsmakers are on vacation (and when little is happening even in the sports world), is when stories such as the “ground zero mosque” or Shirley Sherrod’s supposed racism took off. Not just those; any kind of meaningless hype, whether it’s a supposed gaffe or some meaningless polling random variation, is going to get far more attention than it deserves.

That sounds pretty plausible. If there's no news, you have to make up some news of your own. So you get the WaWa touchpad and "the private sector is doing fine" and tax breaks for Ann Romney's horses and a thousand other micro-gaffes to fill the dead air. Jonathan says there isn't much to be done about this except to beg reporters to at least be aware of what's driving all this fluff. However, he does have a few suggestions, including this one:

Second: substance, substance, substance. The candidates really do have positions on issues of public policy. They really would enact them if elected. Some of those are, I promise, about things that will affect readers and viewers in fascinating ways. You’re not going to be able to fit much of that in once the fall campaign starts; between polling (much more meaningful then, by the way), and charges and countercharges, and whatever other real news is out there. This is a great time to get a little substance reporting in. Hey, another advantage: It’ll pay off for reporters who actually know the issues in the fall.

That would be nice. Of course, most candidates aren't willing to commit themselves on the details of their policy preferences, and Mitt Romney in particular has already straightforwardly admitted that he isn't going to tell us squat until after the election. Too dangerous. People might vote against him if they knew the details of his policies. And there are only so many times you can write policy pieces if the candidates give you nothing but sound bites to work with.

And speaking of sound bites, here's a pet peeve for the dog days of the summer: can we banish forever the idiotic misspelling sound byte? I know they sound the same, but seriously, sound byte doesn't even make sense. So just stop it, OK?

Global Obesity Weighs On Resource Requirements

| Mon Jun. 18, 2012 4:45 PM EDT

Getting fatter is just as bad for the environment as reproducing, according to new research published Monday by the scientific journal BMC Public Health. The journal's "The Weight of the Nations" study determined the ecological implications of increasing "population fatness," are similar to those of population growth.

According to the study, obesity in the global population could have the same implications for food energy demands as an extra 500 million people living on the planet. Simply looking at population growth to estimate resource consumption is no longer sufficient, the researchers argue. They determined that the human race is collectively 17 million tons (15 million metric tons) overweight. As Live Science noted, that tonnage is equivalent to about 170 military aircraft carriers. The extra stress on resources stems from the greater energy that is required to move a heavier body—i.e., it's because fat people need more food.

Currently, more than one billion adults are overweight, and North America is responsible for a large portion of the problem. "Population increases in the USA will carry more weight than would be implied by numbers alone," the researchers wrote. Asia, for example, has 61 percent of the world population and only 13 percent of the extra weight. But North America has 34 percent of the excess weight but only 6 percent of the world population. That's a problem.

Scalia Changes His Mind on Key Obamacare Precedent

| Mon Jun. 18, 2012 2:10 PM EDT

Justice Antonin Scalia has changed his mind about a key Supreme Court precedent that supporters of the Affordable Care Act have been using to argue that the law is constitutional. Scalia's new position leaves little doubt that he'll vote to overturn the law. 

As TPM's Sahil Kapur notes, a New York Times review of Scalia's new book describes the Justice arguing that the 1942 Supreme Case Wickard v. Filburn, which featured a broad interpretation of the Commerce Clause that has been key to pro-Obamacare legal arguments, was wrongly decided.

In that 1942 decision, Justice Scalia writes, the Supreme Court "expanded the Commerce Clause beyond all reason" by ruling that "a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

[...]

Justice Scalia’s treatment of the Wickard case had been far more respectful in his judicial writings. In the book’s preface, he explains (referring to himself in the third person) that he "knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here." Some inconsistencies can be explained by respect for precedent, he writes, others "because wisdom has come late."

Yet Scalia cited Wickard in his 2005 concurrence in Gonzales v. Raich, holding that the Commerce Clause gave Congress the authority to prohibit individuals from growing their own marijuana for medical use. In the opinion, Scalia made an argument often cited by Obamacare supporters in defense of the law, stating that "where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective." In other words, since Congress has the authority to regulate interstate commerce, and health insurance falls into this category, it has the power to implement the individual mandate. 

Conservatives were so fearful that the precedent set by Raich would prove insurmountable to their effort to kill Obamacare that Republican-appointed judges developed an argument that would allow the court to avoid overturning Raich, and allow Scalia to avoid contradicting his concurrence. That argument was the much touted "activity/inactivity" distinction, the idea that by taxing Americans who avoid purchasing health insurance Congress was trying to regulate commercial "inactivity" rather than activity. The argument makes little sense, both because the plaintiffs in Raich were not engaging in commercial activity and because health care is something all humans eventually require. But the reasoning nontheless seemed carefully tailored to allow the court to rule against Obamacare without engaging in a potentially embarrassing reversal of their prior rulings. Georgetown University law rofessor Randy Barnett, one of the most influential legal minds among Affordable Care Act opponents, predicted Scalia would adopt this rationale back in December 2010

Scalia's explanation of his current views on Wickard shows that the lower court judges needn't have bothered providing Scalia with an escape hatchInstead of wisdom "coming late" to Scalia, it may have arrived just in time to justify a vote to overturn the Affordable Care Act.

Blame Congress if the President Attacks Iran

| Mon Jun. 18, 2012 2:03 PM EDT

Doug Mataconis notes that although plenty of conservatives criticized President Obama for intervening in Libya last year, none are willing to criticize candidate Mitt Romney for saying that President Mitt Romney wouldn't "need to have a war powers approval or special authorization for military force" in the case of Iran. But why not?

If anything, this is an even more brazen thumb in the eye of Separation of Powers and Congressional War Powers than Obama’s decision to intervene in Libya, which was limited mostly to Americans acting in a support role while the British and French conducted most of the combat operations. What Romney is saying is that he, as President, [can] decide on his own to commit an act of war on behalf of the United States that nearly every analyst who has looked at the issue concludes poses an extremely high risk of exploding into a wider regional war and/or inspiring acts of terrorism against the United States, Israel, and American interests abroad. Economically, the consequences of such a decision could be catastrophic if it results in the explosion in oil prices that most experts in that field expect would come out of any attack against Iran. And Romney believes that, under the Constitution, he would be perfectly free to make the decision to take that down that road all by himself.

True enough, and I'm on Doug's side here. I'm willing to cut presidents some slack on small bombing operations1, but a military strike on Iran would pretty clearly not be a small operation. It would consume days or even weeks and would obviously be a major act of war. As far as I'm concerned, major acts of war require congressional approval.

Still, I think Republicans are mostly off the hook on charges of hypocrisy. I wish it weren't so, but as near as I can tell, Romney's position is the same as Obama's, which in turn is the same as George Bush's and Bill Clinton's. The majority view in both parties, I think, is that the president could order a massive air strike against Iran on his own authority.

Would this be legal? You can argue otherwise — and I would — but in practical terms it's unquestionably legal. If the executive branch thinks it's legal; the legislative branch thinks it's legal (or, at least, declines to oppose it); and the judicial branch refuses to interfere, then it's legal by the only standard that matters. I don't even really blame either Obama or Romney for claiming this authority. I probably would too if I were president and Congress didn't have the guts to call me on it. If Congress routinely refuses to exert its own authority in the national security realm, it's Congress that's to blame when presidents arrogate too much of it. They could put a stop to it anytime they wanted.

1Yes, yes, I know. This makes me a small-scale warmonger. So be it.

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Republicans' Bad-Faith Objections to Letting DREAMers Stay

| Mon Jun. 18, 2012 12:46 PM EDT
DREAM Act supporters protest in Austin, Texas in 2011.

Last week, President Barack Obama announced a Department of Homeland Security directive allowing undocumented immigrants eligible for the DREAM Act to avoid deportation and acquire work authorization. People who were brought to the country under the age of 16, have been here longer than five years, and are under the age of 30 are eligible, but only if they don't have a criminal record and they have graduated high school, obtained a GED, or served in the armed forces. 

Republicans have voiced a number of objections to the new policy, but many of them are complete nonsense. Here are just a few of the false narratives we've seen repeated over the past few days:

This is amnesty! The Daily Beast's David Frum writes that the move is a "conditional amnesty, yes, but amnesty." Except it's not amnesty, unless we're changing the definition of amnesty. Let's go by the Webster's definition, which is an "act of an authority (as a government) by which pardon is granted to a large group of individuals." The DHS directive does not "pardon" anyone. It is a statement of policy that says DHS will not deport certain unauthorized immigrants and that they will be given permission to work. This can be reversed by the next president. It does not grant even temporary legal status in the country, let alone citizenship or permanent residency, the only two outcomes that could be credibly described as "amnesty." A more appropriate metaphor to describe the order would be a "stay of execution," since in a year these people could find themselves in deportation proceedings.

This is the DREAM Act by fiat! It isn't, because Obama's DHS order does not offer a path to citizenship, which is what the DREAM Act would have granted. All it does is defer deportation and offer work authorization for a limited number of unauthorized immigrants.

It's a power grab! Some of these objections are more sincere than others. But deciding which cases to pursue and which to ignore has long been a prerogative of the executive branch. There are 11 million undocumented immigrants in the US. The federal government claims it only has the resources to deport about 400,000 a year. Deciding not to devote those limited resources to kicking out a group of unauthorized immigrants who didn't make the decision to end up here and could eventually gain legal status is a defensible use of executive authority. 

Republicans would have compromised, if only Obama had let them! Sadly, no. Senator Lindsey Graham (R-S.C.) claimed to support comprehensive immigration reform in 2010, but Graham proclaimed the effort "dead" after Democrats had the gall to pass the Affordable Care Act. If you're not buying that excuse for killing the bill, Graham was also really upset that Democrats decided to prioritize immigration reform over cap and trade—another Democratic priority he claimed to support and then walked away from. It's almost as if the only Republican in the Senate even talking like he wanted to get something done on immigration wasn't really serious about it. By the time the DREAM Act, originally a Republican proposal, came up during the lame duck session in 2010, only a sprinkling of Senate Republicans were willing to cross the aisle to vote for the bill—and not enough to make up for skittish centrist Democrats who voted no. Senator Orrin Hatch (R-Utah), one of the original sponsors, skipped the vote, and other former co-sponsors like John McCain (R-Ariz), Chuck Grassley (R-Iowa), Susan Collins (R-Maine) and Mike Crapo (R-Idaho) voted no. 

Republicans would compromise, if only Obama secured the border! The Obama administration has overseen more than a million deportations, devoted more personnel and resources to border security, and net migration from Mexico is zero and possibly even negative. Whether that's due to the economy or security measures or some combination of both, Obama's political strategy of prioritizing deportations and border security in order to induce Republicans to compromise on immigration reform has only resulted in Republicans offering louder, harsher denounciations of the president's supposedly lax enforcement of immigration laws.

Obama had his chance to reform immigration and didn't make it a priority! This is a matter of opinion, and it's one shared by many immigration reform activists. But coming from Republicans, it's not the kind of criticism that can be taken seriously. Republicans did their best to block immigration reform efforts, and having done so, they are now attacking the president for being unable to overcome their successful obstruction. 

Obama messed things up for Rubio! Well, sure. But Senator Marco Rubio (R-Fla.) started floating a proposal to offer temporary legal status to potential DREAM Act beneficiaries back in April. As of mid-June, he hadn't even put forth a bill. House Speaker John Boehner (R-Ohio) had publicly said getting Rubio's proposal through the GOP-run House of Representatives would be "difficult at best." Following the announcement of the DHS directive, Rubio said he might not even bother trying anymore. For all the complaints about Obama playing politics on immigration, it's hard not to view Rubio's entire proposal as an attempt to make Republicans look more moderate on immigration than they actually are without committing to any concrete policy changes. If Republicans had been serious about granting lasting relief to potential DREAM Act beneficiaries, Obama's move would have made them prioritize such efforts rather than abandon them. There's always Rep. David Rivera's (R-Fla.) bill. But unlike Rubio, Rivera's not assumed to be in the running to join Romney on the GOP ticket. So no one cares. 

Why Liberals Lose

| Mon Jun. 18, 2012 11:54 AM EDT

In primary contests, why are conservatives more successful at nominating conservatives than liberals are at nominating liberals? There are dozens and dozens of theories about this, most of them focused on something to do with organizational power, but in addition to all the theories, there's an actual answer to this question. Nick Baumann has it here. It should probably be tattooed on every liberal's forehead until we all finally face up to it and figure out how to address it.

What It Will Mean If the Supreme Court Strikes Down Obamacare

| Mon Jun. 18, 2012 11:34 AM EDT

Two years ago, when President Obama signed the Affordable Care Act into law, the idea that its individual mandate provision was unconstitutional was laughable. There was no case law, no precedent, and frankly, no serious argument that the federal government's Commerce Clause power didn't give it the authority to mandate purchase of health insurance if it wanted to. That's why Democrats didn't bother looking for a clever alternative—many of which were available—in order to avoid including an explicit mandate in the law. They didn't think they needed to. Of course it was constitutional. Even Randy Barnett, the law professor who popularized the activity/inactivity distinction that opponents latched onto as their best bet against the mandate, initially didn't really think it was anything but a long shot.

So how did that conventional wisdom change so dramatically in only two years? Ezra Klein writes about this in the New Yorker this week, but hell, Ezra's a liberal. He's probably sort of flummoxed too. Instead, let's hear what a nonliberal has to say about it:

Orin Kerr says that, in the two years since he gave the individual mandate only a one-percent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. "That legitimized the argument in a way we haven't really seen before," Kerr said. "We haven't seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage." Finally, he says, "there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame."

This is, needless to say, a powerfully depressing analysis. For all practical purposes, Kerr is agreeing that conservative judges don't even bother pretending to be neutral anymore. They listen to Fox News, and if something becomes a conservative talking point then they're on board. And that goes all the way up to the Supreme Court.

Maybe. The Supremes haven't handed down their ruling yet, and they could still surprise us. Because the truth is still the same as it was two years ago: the distinction between activity and inactivity—i.e., whether the federal government can mandate specific activity in addition to prohibiting it—has no historical basis at all. It was invented out of whole cloth. There's no precedent, no language in the Constitution, and for the most part, not even any discussion about it in the legal literature prior to 2009. It's simply not something that anyone ever took seriously until it became the only plausible attack line against a piece of liberal legislation that conservatives wanted to overturn.

If the court does overturn the mandate, it's going to be hard to know how to react. It's been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can't think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock—but it was also a unanimous decision and, despite FDR's pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don't like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that's pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.

Conservatives Decide Not to Take Obama's Mini-DREAM Bait

| Mon Jun. 18, 2012 10:42 AM EDT

WARNING: I didn't watch any Fox News this weekend so I might be wrong about this. But so far, it seems to me that the leading lights of conservatism have managed to keep their troops under control on the immigration front. President Obama announced his mini-DREAM DHS directive on Friday, and Time's Massimo Calabresi describes Mitt Romney's choices:

He could play it safe, accentuating whatever slight differences might exist between the nascent Rubio plan and the one Obama had just unveiled with full fanfare. That would be a tough sell, since Obama appeared to have crafted his measure explicitly to steal Rubio’s thunder. Alternatively, Romney could go bold, embrace the President’s plan, perhaps even go a step further, become a champion of immigration reform and shift his bets from the base to Latinos.

In an interview for Sunday’s Face the Nation on CBS, taped Saturday in Pennsylvania where Romney was campaigning, Romney showed he was opting for the cautious response.

Other conservatives seem to have mostly followed suit. I did read several items over the weekend complaining that Obama was abusing presidential power by declaring which laws he'd enforce and which ones he wouldn't, but frankly, even those seemed a little pro forma. For the most part, everyone seemed to be lying low, afraid that furious denunciations of the usual sort would torpedo their chance of winning any Latino votes this November.

So have conservatives really decided to back down on this? Have they kept their troops pretty much in line? Is the spittle-flecked stuff being restricted to private email lists? Any Fox News watchers out there care to weigh in?