Month: June 2014

From a recap of yesterday’s ruling in McCullen v. Coakley:

The US Supreme Court on Thursday unanimously struck down a Massachusetts law that banned protesters within 35 feet of abortion clinics, ruling that the law infringed upon the First Amendment rights of antiabortion activists. The decision effectively overturns about 10 fixed-buffer-zone laws across the country, from San Francisco to Portland, Maine, but offers a framework for more limited restrictions around clinic demonstrations, legal experts said.

The justices’ reasoning:

The court ruled 9-0 that the state law was a violation of the First Amendment, but the justices were split on why, with Chief Justice John Roberts appearing to be the swing vote. He joined the court’s liberal block, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, in saying that the law’s limits on speech were too broad. … In its majority ruling, the court did not establish what distance would be acceptable but made a veiled suggestion that a smaller space would be legal in Massachusetts. … The other justices, the court’s four conservatives, said the law was unfairly aimed at anti-abortion speech because it restricted protesters but not clinic employees.

A seething Dahlia Lithwick notes that SCOTUS maintains a buffer zone around its own building. Kliff predicts that the ruling “will likely have a ripple effect into other states”:

Massachusetts was one of three states with a buffer zone law, according to the Guttmacher Institute, the others being Colorado and and Montana. Massachusetts began moving towards its law to restrict access to the space around clinics in 1994, when there was a national wave of violence against abortion providers. It’s likely that Colorado and Montana will have to re-evaluate their own restrictions in the wake of the Supreme Court decision.

But Morrissey warns against overstating the impact of the case:

It this may not be a big win for abortion opponents in the end, because the Court appears to have upheld the notion of buffer zones in principle:

… According to NBC, the ruling does not affect an earlier ruling upholding an eight-foot “bubble zone” around people entering the clinics. Interestingly and critically, the decision also didn’t rule that the fixed zones were content nor viewpoint based, even though the only obvious outcome was to hinder the pro-life message from being freely disseminated in that zone.

Sally Kohn elaborates:

The McCullen decision strikes down the Massachusetts law because it includes public streets and sidewalks. … Presumably under this ruling, clinic buffer zones that are more tightly drawn and do not include public sidewalks and streets are still completely permissible under the Constitution. (There is some debate about how this will affect clinics that abut sidewalks or public streets.)

Still, Marcotte fears the worst:

Supreme Court decisions are about more than just the law and what it does and does not allow. They also help set social expectations. While anti-choicers continue to believe that they own women’s uteruses, their sense that they are also entitled to control women’s movements has declined since the ’90s, at the height of clinic blockades and violence. This decision may be limited legally, but could very well be taken by the anti-choice movement as “permission” to reassert themselves and their physical presence. If past is any indicator, the frustration of being up close and personal with a woman who is about to have an abortion but being unable to actually stop her can sometimes spiral out of control.

David Harsanyi objects to that line of argument:

The genuine purpose of these buffers is to shelter people from feelings of unease, guilt or embarrassment when they are confronted. How this makes the abortion more “dangerous” for women, as supporters claim, is confusing. It is against the law to impede a person wishing to enter an establishment. It is against the law to physically assault someone (other than a fetus that is). It is against the law to damage private property. It is against the law to harass someone – and by “harass” I am referring to the legal definition not the definition offered by abortion clinics, which is often simply “inconvenience.”

It is not yet against the law to remind them what they are doing, or convince them not to enter or to posit that a doctor inside is in the process of ending human life.

On that point, Kate Pickert examines the data:

Academics who study the effects of anti-abortion protestors on women’s decision-making say it’s difficult to collect data on women who may change their minds as a result of protestors. These women may never have contact with abortion providers or researchers studying the topic. But on a related subject—the effect of protestors on women’s states of mind—there is more data.

A 2013 study published in the journal Contraception found that protestors affect the emotional state of women entering abortion clinics. The study, by researchers at the Bixby Center for Reproductive Health at the University of California, San Francisco, included interviews with almost 1,000 women who had abortions and were asked whether contact with protestors affected them emotionally. Of the women who saw protestors outside clinics, 41% reported feeling upset because of it. In addition, the more contact women had with protestors, the more upset they felt.

But asked if the protestors impacted their feelings about actually having abortions, the women reported their feelings were the same regardless.

To get a sense of women’s feelings when confronting a late-term abortion, check out the “It’s So Personal” series of first-hand accounts from Dish readers.

(Photo: Anti-abortion activists protest outside of a Planned Parenthood health clinic in Washington, DC on July 28, 2005. The group had walked from Maine to protest at pro-choice health clinics along the way. By Mandel Ngan/AFP/Getty Images)

David Bromwich, no right-wing hack, indicts Obama for seeming “far from the scene” during crisis after crisis, from the roll-out of his health care plan to the VA scandal to the turmoil in the Ukraine. Bromwich finds his response to the Newtown shooting emblematic of the problems that would beset Obama as he entered his second term:

After the mass killing of schoolchildren in Newtown, Connecticut in December 2012, he vowed to pass a stringent new measure to strengthen gun control. For anyone who has been watching him, it was the most deeply felt moment of his presidency, and the largest risk he had taken on any issue. The time to publicise the outlines of such a bill was during those December days when the grief of the parents overwhelmed the country. Obama’s solution was characteristic. He announced that Joe Biden would explore the legislative possibilities and report back in a month. As the weeks passed, various weapons bans were drawn up and canvassed in public, but the National Rifle Association had been given time to rally and the moment passed. Much the same happened with the pledge in January 2009 to close Guantánamo. Obama left the room and asked his advisers to call him when they had solved it. A prudential pause was lengthened and became so clearly a sign of unconcern that the issue lost all urgency.

Obama is adept at conveying benevolent feelings that his listeners want to share, feelings that could lead to benevolent actions.

He has seemed in his element in the several grief-counselling speeches given in the wake of mass killings, not only in Newtown but in Aurora, at Fort Hood, in Tucson, in Boston after the marathon bombing; and in his meetings with bereft homeowners and local officials who were granted disaster funds in the aftermath of recent hurricanes. This president delivers compassion with a kind face and from a decorous and understated height. And that seems to be the role he prefers to play in the world too. It was doubtless the posture from which he would have liked to address the Arab Spring, and for that matter the civil war in Syria, if only Assad had obeyed when Obama said he must go. Obama has a larger-spirited wish to help people than any of his predecessors since Jimmy Carter; though caution bordering on timidity has kept him from speaking with Carter even once in the last five years. Obama roots for the good cause but often ends up endorsing the acceptable evil on which the political class or the satisfied classes in society have agreed. He watches the world as its most important spectator.

I have to say that I don’t find this as big of a problem as Bromwich does. From the very beginning, Obama has been a presider rather than a decider. His modus operandi is to marshal existing political forces toward a particular, prgmatic set of goals. When those forces have been ascendant – as with the stimulus, healthcare, marijuana prohibition, ending the Iraq War, and gay rights – he has achieved some profound and truly durable changes in American society and policy. When the actual forces he is trying to use are not as strong as the opposition – and, please, the NRA’s clout is no surprise – he’ll cut his losses after a while. As any politician would.

Yes, he’s as compassionate as Carter; but he has always had a cold, realist streak in him – which is what attracted me to his candidacy. He has a dry conservative view of government even as he wants to use it to advance the general welfare. And the only way to properly judge this, I’d say, is by results. So, to take gay rights, I was venting along Bronwich lines for quite a while – just check out the archive along the theme of “The Fierce Urgency Of Whenever“. But the results have been more spectacular than anything I could have hoped for in 2008.

Or on healthcare reform, where he let the Congressional game play out far longer than it might have – and nearly lost it all at several points. But the law that has resulted – again more successful than many thought possible even a year ago – is road-tested, SCOTUS-approved, and slowly seeping into the core administrative structure of the US. On torture and GTMO, you can fault Obama all you want – but he cannot overrule Congress, and they are still acting like scaredy cats. But the Senate Intelligence report is imminent; torture has ended; and we may see the beginning of a process of truth and accountability. Has he been maddeningly passive at times? Sure. But the direction we’re headed in – as long as pro-torture Republican does not become president in 2017 – is clear. Ditto marijuana prohibition. He has quietly taken the feds off the field in countering state innovations, the support has waxed, and the federal classification may soon change.

If you long for a man on a white horse to lead us on various crusades, Obama is not your man. But that’s not why Obama was elected, or re-elected. And, in my view, it’s not what this country – or the world – needs right now. And I have a feeling that looking back, we’ll be more than a little impressed by how much he still managed to get accomplished. And how durable those accomplishments will be.

(Photo: Nicholas Kamm/AFP/Getty)

Yesterday, in National Labor Relations Board v. Noel Canning, SCOTUS nullified three temporary appointments Obama made to the board last year while the Senate was out of town but holding pro forma sessions to prevent the president from making recess appointments – a tactic devised by Democrats during the Bush administration. The ruling may also nullify the appointment of Richard Cordray to head the Consumer Financial Protection Bureau, which is being challenged in a separate case in federal district court.

However, the court’s first ever opinion on the Recess Appointments Clause largely upheld the president’s powers in this regard. Lyle Denniston outlines the rules it establishes:

First, the president may make a temporary appointment when the Senate is in recess between its annual sessions when it takes a formal break or during interruptions of one of its annual sessions, provided that the Senate actually has made itself unavailable for at least ten days.  The Court turned aside the idea that this power would exist only when the Senate was formally out of town between annual sessions.

Second, the president may make a temporary appointment when the Senate is in recess, even if the vacancy arose before the Senate became unavailable and remained unfilled when it took a recess. The Court refused to embrace the notion that the power applied only to a government post that became vacant during a recess, and had to be filled during that recess. Both of those parts of the decision went in favor of presidential authority to fill vacant posts.

Third, in the only part of the ruling decidedly against presidential prerogative, the Court barred the president from filling a vacancy when the Senate is holding what it, by its own action, treats as a working session even if it does no real work and shuts down fully every three days.  That is too short to be treated as a recess.

The court ruled unanimously but issued two separate opinions: the controlling opinion by Breyer and a concurrence by Scalia that reads more like a dissent. Noah Feldman dives deep into Breyer’s reasoning, which strongly reflects his pragmatic approach to constitutional law:

In essence, Breyer was acknowledging that, as a practical matter, the dispute between the two other coordinate branches of government shouldn’t be resolved by the court simply declaring that it knows the meaning of the Constitution, especially when that meaning is uncertain. … Then, in a still more frankly pragmatic part of the holding, Breyer stated that short breaks of three to 10 days should presumptively be considered not to be recesses at all.

Of course, the numbers three to 10 don’t appear anywhere in the Constitution. It’s a hallmark of pragmatism to add numbers for practicability even where the Constitution is silent. That, for example, is what Justice Sandra Day O’Connor did in her affirmative action opinion in 2003, when she famously said that she expected affirmative action to sunset within 25 years.

Ilya Shapiro, however, prefers Scalia’s originalist argument, which was joined by Roberts, Alito, and Thomas:

The only “rule” that emerges from Justice Breyer’s controlling opinion is that a three-day recess, the longest the Senate can adjourn without the House’s consent, isn’t long enough to enable recess appointments. That’s a very pragmatic decision and seems to confirm executive practice prior to recent years. It also happens to lack any connection to constitutional text (as Justice Scalia points out for four justices in concurrence), whose best reading indicates that only recesses between Senate sessions – not when, e.g., the Senate takes two weeks off around Christmas – count for purposes of activating the recess-appointment power. Moreover, that power is only textually justified to fill vacancies that arise during the recess itself, not for openings that the president didn’t happen to fill while the Senate was sitting.

In other words, Justice Breyer’s unprincipled opinion, while limiting recent presidential practice, cements a much more expansive reading of that power than the Constitution allows.

But Scott Lemieux ridicules Scalia’s “ahistorical” approach:

Scalia’s claim that the text of the recess appointment clause has only one reasonable interpretation simply beggars belief. As Breyer observed, among the people whom Scalia deems incapable of understanding the English language are Thomas Jefferson, who wrote in a letter than the recess appointments clause was “certainly susceptible of [two] constructions”.

Besides which, that a majority of the Supreme Court disagrees with Scalia’s interpretation of the text – even though it agrees with his bottom line on the case – also makes it hard to accept that the alternative, accepted reading of the text is, as Scalia implies, simply irrational. Even worse for Scalia’s assertion is the evidence provided by nearly two centuries of actual government practice.

So what does this ruling mean for now? Not all that much, beyond nullifying these three recess appointments:

[N]othing in the Court’s ruling suggests that it would invalidate other, earlier recess appointments.  To the contrary, the Court made clear that, over two centuries, presidents had made only a very small handful of recess appointments during recesses that were shorter than ten days.  And later on, it contrasted its approach with that of Justice Scalia – whose approach, it contended, “would render illegitimate thousands of recess appointments reaching all the way back to the founding era.”

But what about other recess appointments in the future?  The short answer is that it really will depend on which parties are in power.

Morrissey asks what happens to the decisions the NLRB made when the invalidated appointments provided it with a quorum:

The answer appears to be that they can be successfully challenged and set aside. That was the context of the challenge to the recess appointments in the first place — lawsuits against regulation created in that period that alleged they were illegitimate. This ruling means that the Supreme Court unanimously agrees on that point, a severe rebuke to the “constitutional scholar” President and his abuse of power. More practically, though, the recent appointments to the NLRB can reconstitute that regulation if they wish, so the victory may be short lived for the plaintiffs.

Serwer raises the same question:

It’s unclear where the high court’s ruling leaves decisions made by the NLRB while its members were recess appointed. Richard Cordray, the recess appointed director of the CFPB, was later confirmed by the Senate. He then ratified past decisions made prior to his confirmation.

“It’s possible that the NLRB members could go back and ratify the decisions that were made when they were recess appointed, but it’s unclear if that would hold up in court. So that is something that would be litigated going forward,” said Brianne Gorod, appellate counsel with the Constitutional Accountability Center. ”The CFPB is in a slightly different position. Richard Cordray ratified all of his decisions after he was confirmed, and so I believe there’s no legal problem with those decisions at this point.”

“In the immediate term,” David Graham answers, “it’s not clear that this will make a big difference”:

What precipitated Obama’s NLRB appointments was a standoff in the Senate between Obama and Senate Democrats, who wanted to confirm nominees, and Senate Republicans, who vowed to block them. That crisis came to a head when Majority Leader Harry Reid invoked the “nuclear option,” lowering the threshold on confirmation votes to a simple majority and eliminating the threat of a filibuster. So even though Republicans still control the House, Obama hasn’t had to rely on recess appointments to fill posts.

But Republicans are generally favored to win back the Senate in November. If they do, they’ll have new power to block presidential appointments, and Obama will have a new incentive to find ways to work around them.

Damon Root cheers the court for placing some limits on a form of executive power that he says Obama has abused extensively:

This ruling represents a resounding and well-deserved defeat for the Obama administration, which failed to garner even a single vote for its expansive theory of executive power. Indeed, in terms of recess appointments, President Obama has revealed a tendency towards unilateral action that exceeds even that of his predecessor George W. Bush, who was no slouch in the executive power department. Yet unlike Obama, Bush adhered to the independence of Congress and stopped making purported recess appointments in 2007 when Senate Democrats first introduced the tactic of holding pro forma sessions to thwart his nominees.

But Jeff Shesol argues that it’s the congressional Republicans, not the president, who have abused their constitutional prerogatives:

[Alexander] Hamilton thought it “not very probable” that the Senate would block a Presidential nominee unless there were “special and strong reasons for the refusal.” That improbable event is now routine.

What the founding generation did not (and probably could not) imagine was obstruction as the first and sometimes the only order of business; what they did not foresee was a Senate faction that does not believe, as they believed, that “the true test of a good government is its aptitude and tendency to produce a good administration.” The prevailing idea on the right today is that no government is a good government, and that members of Congress discharge their patriotic duty not by producing, but by precluding, a good administration. Historical practice may point, as the majority opinion affirms, in one clear direction, but it sure isn’t the direction we’re going.