Freedom Line Blog

Despite premature rejoicing among immigration restrictionists not once but twice — first after oral argument, where Obama Solicitor General Donald Verrilli seemed to really take it on the chin, and then when the first reports of this morning’s decision were Tweeted out — the reality is that the Obama administration won much more than it lost today in the Supreme Court ruling on the Arizona immigration law. The part that restrictionists were cheering was that which allows police who have arrested somebody for other reasons to also check their citizenship/residency status. That is, of course, the most prominent part of the law; hence the rejoicing on the hard right.

A closer look, however, shows that the provision survived only because A) it applies only with strict limitations on its reach, and B) because state courts have not had a chance to officially construe its meaning. In other words, depending on how state courts interpret the law, even that provision may in the future by thrown out by the Supremes.

Meanwhile, three other important provisions, including one making it unlawful for illegal aliens to take jobs in Arizona, were thrown out. This is a big deal. What the high court — with not only Kennedy but also Chief Justice Roberts joining the liberals — is saying is that federal law should be construed, even without express provision, to pre-empt (or preclude) state law in those same areas. This is a big loss for state’s autonomous powers. To quote from the court’s syllabus (with my emphasis added), “Because Congress has occupied the field, even complementary state regulation is impermissible”. This is, frankly, a shock to me. It means that on any subject even remotely touching on foreign policy on which Congress legislates, the states are not permitted even to pass their own laws in pursuit of the same objectives.

Restrictionists also might gag at this line from the syllabus: “As a general rule, it is not a crime for a removable alien to remain in the United States.”

I count myself as a “moderate restrictionist.” On the merits, however, I thought Arizona was entirely right, and the administration entirely wrong. I therefore am not happy with this decision. I think it amounts to a huge infringement upon state policing authority. It certainly supports much of the Obama argument — an argument which, to me and many others, still seems ludicrous.

Oh, well.

Most Americans are unfamiliar with the environmental activist group ForestEthics.  But its recent activities reaffirm that something you don’t know can hurt you.

More specifically, ForestEthics has commenced a sabotage campaign against something called the Sustainable Forestry Initiative (SFI).  SFI, which was established back in 1994, essentially certifies that forest products are environmentally sustainable.  ForestEthics, however, alleges that SFI is some sort of corporate ruse, and has undertaken a sustained effort to pressure private companies not to use SFI’s green certification program or apply its labels on products.   As detailed by a letter from eight members of Congress, such efforts can result in punishing American industry.  Specifically, products from such countries as Brazil, China and Russia would be certified, but enormous amounts of U.S. areas certified by SFI would be eliminated.  Moreover, it can have such perverse effects as harvesting 600-year-old Russian trees.

While we don’t necessarily take sides in this sort of intra-environmentalist debate, ForestEthics illustrates once again the recurring and inherent contradictions of environmental activism.  In this case, the price paid in terms of American jobs and old-growth forests in the name of ForestEthics dogma.

Archbishop William Lori of Baltimore has an otherwise excellent column in today’s Washington Post about the need to protect religious liberty from the assault represented by the HHS abortifacient mandate. But he makes an important misstatement, a wholly gratuitous one, that MUST be corrected, and will be in a moment.

First, here’s what is good, indeed terrific, about the column: It captures the essence of the state’s intrusion into internal religious affairs. As in:

According to HHS, an entity deserves religious freedom only if it primarily hires and primarily serves its co-religionists. But the state has no competence or authority to define the church and her ministries, let alone to impose on her such a restrictive, inward-looking definition.

This definition is a blow to any religious community, but especially to Catholics, who are called to serve anyone in need. As we often say, we serve people because we are Catholic, not because they are. It is why so many Catholic schools enroll so many non-Catholics; Catholic hospitals don’t ask for baptismal certificates upon admission; and Catholic soup kitchens don’t quiz the hungry on the Catechism.

Do read the whole thing. It’s good.

That said, there is a terrible mistake in the column that appears again and again in the talking points of Catholic clergy across the country. I’ll first quote Lori’s claim, and then show why it is flatly inaccurate. Here’s what he wrote:

And the federal government is not the only problem either. In Alabama and other states anti-immigrant legislation is so draconian as to make it a crime to give basic help–such as food, or a ride to church, or counseling–to an undocumented immigrant. This imperils the good work of pastors who are called to care for all souls, not just those recognized by government.

Not to put too fine a point on it, but this is an ignorant re-statement of an assertion that was never true in the first place. In a Weekly Standard piece last December, I showed how and why the assertion is false:

Then there is the absurd notion that priests or pastors might be arrested while providing humanitarian assistance under the part of the law that would make it unlawful to “harbor” an illegal alien. For one thing, the anti-harboring provisions match, almost word for word, an extensive anti-harboring section of federal law (8 U.S. Code 1324) that similarly makes it unlawful to “conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation”​—​a federal law that never before has been thought to put clergy in the slightest danger. For another thing, the Alabama law contains a host of exceptions for primary and secondary education and for just the sorts of humanitarian actions Obama described​—​among others, any “emergency medical condition,” “emergency disaster relief,” and “soup kitchens, crisis counseling and intervention, and short-term shelter.”

To add to the protections for those in the ministry, Alabama’s constitution contains a “Religious Freedom Amendment” more extensive than the First Amendment to the U.S. Constitution, namely “to guarantee that the freedom of religion is not burdened by state and local law; and to provide a claim or defense to persons whose religious freedom is burdened by government.”

Finally, when Obama was using the Hispanic media to spread alarm, a federal judge had already enjoined the Alabama law’s “harboring” sections on technical grounds, mooting (at least for now) the entire alleged danger.

“I’ve made it clear in every public statement that there is nothing in this law that would prohibit anyone from being a good Samaritan,” said Luther Strange, Alabama’s mild-mannered, moderate-conservative attorney general cast by the New York Times in the role of the viciously segregationist former governor George Wallace, with all of Wallace’s “defiant history of intolerance and minority oppression.” The characterization fits Strange about as well as a tuxedo would fit a porpoise.

There. That just about sums it up: No different from federal law/mutliple specific exemptions/state constitutional protections/federal court enjoinment/state AG assurances.

It’s time the bishops, in the course of their brave and noble opposition to the HHS mandate, stop reaching for an unnecessary and unfair additional point that obviously is intended merely to make their complaint look bipartisan.

The following is an excerpt from White House Press Secretary Jay Carney’s media briefing earlier today, where he was dogged by questions about President Obama’s assertion of executive privilege in the Fast and Furious case:

Q: Jay, you said to an earlier question that there was no White House cover-up involved in these documents that the President had declared privilege on. And you also said that, just again, that the President is just trying to protect the constitutionally enshrined power of the executive power to make decisions independently. In the documents in question is there any information that if put on the public record would jeopardize national security interest or embarrass the White House?

MR. CARNEY: Well, those are — (audience laughter) — I’m not going to give you a readout of documents that are under question here and relate to the assertion of privilege. What I can tell you is that there is nothing in these documents that pertains to the Fast and Furious operation. And I would simply note and have you ponder the fact that the Attorney General referred this to the Inspector General for investigation, and the Inspector General has access to all documentation as a member of the executive branch.

Q I guess the question is are you declaring it mostly on principle to ensure the separation of power or is there an issue of national security —

MR. CARNEY: Thank you for phrasing that. This is entirely about principle. It has nothing to do — (audience laughter) — no, no, this has nothing to do — we have been absolutely clear about the fact that this operation used a tactic that originated in a field office that was flawed, that was wrong, and that had terrible consequences for the Terry family, and should not have been employed. And this Attorney General, when he learned about it, put an end to it and referred it for investigation.

There was a time when the Briefing Room media wouldn’t have laid a finger on the president over something like this. Now they’re laughing in his Press Secretary’s face.

Probably not a bad time to update that resume, Jay. And Barack, you might want to have a spare handy too.

Nancy Pelosi today made the risible claim that the contempt citation against Eric Holder is part of an effort at voter suppression. What bunk. But it is true that Holder is heavily involved with the flip side of vote suppression, which is that he is deliberately taking steps that enable vote fraud, via his lawsuits against Texas, Florida, Alabama, South Carolina, etcetera, concerning voter ID and cleaning up voter rolls.

Well, here is the little-known background to all this:

It goes back to the Clinton Administration’s very first big battle — which wasn’t about health care, or energy taxes, or spending. The first battle involved the Motor Voter bill, which Democrats in Congress introduced on the very first legislative day in 1993, several weeks before Bill Clinton was inaugurated. Motor Voter was assigned to the House Administration Committee – and Louisiana Congressman Bob Livingston, the committee’s ranking Republican, had the job of deciding whether to object. I happened to be Livingston’s press secretary back then…. Livingston didn’t object to registration at drivers’-license bureaus, but he argued that other bill provisions (too numerous to list here) would promote vote fraud. Livingston’s legislative aide Tripp Funderburk had the brilliant idea to say that “Motor Voter” would better be described as “Auto Fraudo.” Using Tripp’s new catch-phrase, I started a media pushback, including a column in the Washington Times and many radio appearances for Livingston.

The pushback failed to kill the bill – but it did succeed in forcing acceptance of some anti-fraud provisions into the bill’s Section 8…. But, as reported by whistleblowers J. Christian Adams and Christopher Coates, DoJ official Julie Fernandes announced in late 2009 that the department would refuse to enforce Section 8’s anti-fraud provisions because “it has nothing to do with increasing turnout, and we are just not going to do it.” Now that Florida is doing its job to enforce it anyway, DoJ is trying to stop the state’s efforts.

From breaking state budgets to disrupting private airline industry reorganization, CFIF’s Timothy Lee discusses the latest antics of big labor unions.

Listen to the interview here.

Tim Stanley of Britain’s Telegraph explains how the argument can be made that President Barack Obama’s role in the Fast and Furious scandal – if proven – could be worse than Richard Nixon’s involvement in Watergate:

A lot of conservatives are writing at the moment that not only is Obama turning into Nixon Mark II, but Obama is worse because no one actually got killed during Watergate. The comparison is based on the myth that Nixon ordered the Watergate break in and that’s what he eventually had to resign over. But that’s not true. Nixon’s guilt was in trying to pervert the course of justice by persuading the FBI to drop its investigation of the crime. Mistake number one, then, was to involve the White House in covering up the errors of a separate, autonomous political department. Mistake number two was that when Congress discovered that evidence about the scandal might be recorded on the White House bugging system, Nixon invoked executive privilege to protect the tapes. In both cases, it was the cover up that destroyed Tricky Dick – not the original crime.

And, forty years later almost to the day, here we have Obama making the same mistake. Perhaps it’s an act of chivalry to stand by Holder; perhaps it’s an admission of guilt. Either way, it sinks the Oval Office ever further into the swamp that is Fast and Furious. Make no mistake about: Fast and Furious was perhaps the most shameful domestic law and order operation since the Waco siege. It’s big government at its worst: big, incompetent and capable of ruining lives.

As an update to my previous post, here’s the latest from The Hill:

A House panel voted Wednesday to place Attorney General Eric Holder in contempt of Congress for his failure to comply with a subpoena, defying an assertion of executive privilege from President Obama.

The House Oversight and Government Reform Committee, led by Republican Chairman Darrell Issa (Calif.), approved a resolution along party lines to place Holder in contempt after battling him for months over access to internal agency documents about the gun-tracking operation Fast and Furious.

…

All 23 Republicans on the committee voted for the contempt resolution, while all 17 Democrats voted against it. Every member of the panel was present for the vote.

There are still many off-ramps on the road towards Eric Holder being perp walked into federal prison for being found guilty of contempt of Congress.

Next week the full House will vote on the Oversight Committee’s contempt citation.  If it passes, the U.S. Attorney for the District of Columbia will convene a grand jury to decide on an indictment.  If that is successful, then Holder would have to be found guilty by another jury.  Only then would he be eligible to serve the one-year sentence for refusing to comply with Issa’s repeated requests for documents related to the Fast and Furious scandal.

The process is lengthy, and anyway is beside the point.  The reason Issa and the Republicans are pushing the contempt process forward isn’t to see the U.S. Attorney General go to prison.  It’s to apply the necessary pressure on a recalcitrant Obama administration to release information about one of the dumbest and most tragic federal misadventures in recent memory.

Hiding behind eleventh hour claims of executive privilege won’t make that task any easier.  If Holder and President Barack Obama want to avoid letting Fast and Furious become this administration’s Iran Contra, Holder better personally deliver assurances to Issa that he’s ready to fully cooperate.

And if he can’t because there’s damning information about a DOJ-White House cover-up, get ready for a Watergate role reversal with Republicans in Congress making a Democratic president’s life miserable.

Today marks a dramatic turn in the Fast and Furious scandal with the Obama White House announcing this morning that the documents sought by House Republicans are protected from disclosure by executive privilege.

For the first time since news broke of the Department of Justice gun-walking fiasco, the President of the United States is claiming an interest in DOJ’s internal deliberations about a program that purposefully armed Mexican drug cartels and ultimately allowed a drug runner to murder a U.S. Border Patrol agent.

In the short term, the president’s announcement may make House Oversight Chairman Darrell Issa’s contempt vote closer than it would have been, if some members decide that an executive privilege claim inoculates Holder from punishment.  My guess is that Obama’s announcement will embolden Republicans on the committee to go ahead with the contempt vote and give Democrats a talking point after they lose.

In the long term, today’s executive privilege claim finally elevates Fast and Furious into a surefire campaign topic for the fall.  As long as the scandal was defended as a policy decision gone bad – especially one that was until today linked to the previous Republican administration – it was unlikely that conservatives would make Fast and Furious into a campaign theme.

But now that’s changed for two reasons.  First, as of today DOJ has rescinded its claim that Bush’s Attorney General Michael Mukasey knew about Fast and Furious, thus admitting that the idea and its consequences belong completely to the Obama administration.  Second, Obama’s claim of executive privilege means that he is now claiming ownership of the program.

I suspect that the documents being withheld would make the case for the resignation or impeachment of Eric Holder or another high-ranking DOJ official.  Claiming executive privilege helps delay the reckoning, but it opens the door for Mitt Romney and others – most notably Issa and other congressional investigators – to ask White House officials directly – and President Obama indirectly – about the president’s knowledge, involvement, and approval of Fast and Furious.

Game on.

Further evidence that the Obama Administration’s green jobs fetish defies all logic, economic or otherwise, comes from this report from CNS News:

An Obama administration green jobs grant program that spent $11 billion lacks a verifiable job-counting system and likely created only a fraction of the jobs it claims, according to a staff report by the House Energy and Commerce Committee.

While Energy Secretary Steven Chu said the grants “created tens of thousands of jobs,” the government’s own National Renewal Energy Laboratory estimates it created 910 direct jobs.

The House report criticized even those numbers, saying: “The job creation numbers that exist for Section 1603 are based on models, not actual data from completed projects. Neither Treasury nor DOE have turned over actual jobs data on the Section 1603 grants program to the committee.”

In the spirit of generosity, let’s assume the 910 number is correct. At $11 billion, that comes out to well over $12 million per job. A ludicrous amount to be sure, but also one that comes with an enormous opportunity cost. Scroll down the page to Ashton’s post on the cost-effectiveness of Washington D.C.’s Opportunity Scholarship program and you’ll find that the whole thing (which the Obama Administration has consistently targeted for elimination) could be funded at the cost of less than two of those green jobs.

The character of this administration can be defined by its priorities. Does anything more need to be said than that they would rather slip millions of taxpayer dollars to tech firms who haven’t so much as worked up a business model than to poor children in the inner city? Hope indeed.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

God bless New Hampshire, an outpost of sanity in otherwise deep-blue New England. In keeping with the Granite State’s strongly libertarian political culture, New Hampshire’s legislative Republicans led a charge to prevent the state from implementing a health insurance exchange program under Obamacare. The result: the state’s Democratic governor buckled. From the state’s free-market think tank, the Josiah Bartlett Center for Public Policy:

Governor John Lynch this morning signed legislation blocking implementation of a health insurance exchange in New Hampshire. The Obama Administration has been urging states to set up exchanges under the Patient Protection and Affordable Care Act, known as ObamaCare.

Lynch has supported setting up a New Hampshire exchange, including the proposal in his State of the State address in February. Senate legislation setting up an exchange, SB 163, won Committee approval in January before stalling on the Senate floor. Opponents argued that a state-run exchange would put New Hampshire taxpayers on the hook for the costs of administering much of the federal health care law, while giving the state little flexibility from federal mandates.

New Hampshire’s state motto — perhaps the nation’s most iconic — is “Live Free or Die.” It’s nice to know that those are more than just words on a license plate.

h/t: Adam Freedman at Ricochet

Buried in a Roll Call story on the political fallout from President Barack Obama’s decision to unilaterally impose DREAM Act-like amnesty for up to 800,000 illegal immigrants is the reaction by Rep. Steve King (R-IA):

“Americans should be outraged that President Obama is planning to usurp the Constitutional authority of the United States Congress and grant amnesty by edict to 1 million illegal aliens,” King said in a statement. “There is no ambiguity in Congress about whether the DREAM Act’s amnesty program should be the law of the land. It has been rejected by Congress, and yet President Obama has decided that he will move forward with it anyway. President Obama, an ex constitutional law professor, whose favorite word is audacity, is prepared to violate the principles of Constitutional Law that he taught.”

King is right.  The DREAM Act – a proposal to exchange American citizenship for completing college or serving in the military – cannot pass Congress because “the American people have rejected amnesty because it will erode the Rule of Law.”

Contra the Obama administration’s apparent belief, conservative opposition to amnesty does not rest on intrinsic racism.  The problem with illegal immigration isn’t immigration.  It’s that it is illegal immigration.  That the president is choosing to implement a policy without a law to base it on drives home the point that liberals see laws as formalities that can be ignored.  Conservatives like King and yours truly see them as the guarantees of a free and orderly society.

Like so many other fundamental disagreements being argued this cycle, this issue needs a lot of attention.

Finally, an election evolution that puts President Barack Obama on the side of the angels.

From the Washington Post:

House Speaker John A. Boehner (R-Ohio) and Sen. Joseph I. Lieberman (I-Conn.), the authors of legislation that reauthorized and expanded the Opportunity Scholarship Program, said they had reached an agreement with the White House to ensure that enrollment in the program can grow and that parents can apply to have their children stay in or join the program and get a response as soon as possible.

“I’m pleased that an agreement has been reached to expand the program, consistent with the law already on the books,” Boehner said, praising the scholarships as “both effective and cost-effective.”

How cost-effective?  The price of a D.C. Opportunity Scholarship is $8,000 per year.  The cost of educating the same child in the D.C. public school system is $18,000 per year.

Here’s a Heritage Foundation graph showing how much the D.C. school voucher program costs federal taxpayers:

So, not only are kids receiving D.C. school vouchers getting the education their parents want; they’re doing it for less than half of what it would cost if the vouchers didn’t exist.

Let’s hope President Obama evolves to the point where every D.C. child gets an Opportunity Scholarship.  They – and the taxpayers – will be better off.

The margin of victory in the 2008 presidential race was so wide — and the election of Barack Obama so historic — that we rarely stop to imagine what it would have been like were we now well into the third year of John McCain’s presidency.

Needless to say, we’d be better off on a wide variety of fronts. McCain, a consistent fiscal hawk, not only wouldn’t have indulged in a record-setting debt binge like Barack Obama, he may well have made a serious run at entitlement reform. And as a stalwart advocate for a strong national defense, it seems overwhelmingly obvious that McCain would have taken a harder line with Iran than the “diplomacy at all costs” approach embraced by the Obama Administration.

In other areas, however, McCain would have been an utter nightmare. Can anyone imagine how one of the namesakes of the McCain-Feingold political speech law would have reacted to the Supreme Court’s Citizens United decision? Based on this report from the New York Times, it may have been even worse than Obama:

In his 2010 State of the Union address, President Obama roundly criticized the Supreme Court’s Citizens United decision, arguing that it had “reversed a century of law.” That practically sounds like a hymn of praise compared to what Senator John McCain had to say on “Meet the Press” this weekend. He called Citizens United: “arrogant, uninformed, naïve.” …

“I think there will be scandals associated with the worst decision of the United States Supreme Court in the 21^st century,” he said. Referring to the justices on the Court, he added, “I just wish one of them had run for county sheriff.”

This was on the heels of McCain criticizing casino magnate Sheldon Adelson’s contributions to Republican causes, saying that the fact that he owns a gaming facility in Macau could mean that “foreign money is coming into American political campaigns.”

This serves as one more reminder that, as McCain himself essentially told us four years ago, he’s basically an economic illiterate. Someone with foreign business interests donating to a political campaign is subversive of the integrity of domestic elections? Does Merrill Lynch, McCain’s biggest donor in 2008, only invest in domestic entities? Does Fed-Ex, another major donor, only ship within the 50 states? Since the obvious answer is no, how was McCain able to escape the corrupting influence of foreign money?

The point here is not to hammer those companies; quite the contrary. They were completely within their rights to give political donations, as is Adelson. The point is that McCain’s fetish for regulating political speech is both hypocritical and inimical to a free society. Giving government the power to regulate what free citizens may say about the government (and when and where they may say it) is a fundamental threat to liberty.

On this one front, at least, we can be happy that McCain was never able to bring the powers of the White House to bear.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

I have a piece out in the new Weekly Standard about how Alabama failed in its efforts to allow charter schools. My friend RiShawn Biddle just sent me a piece of his own from some time back that I had not seen, that makes some of the same points. Biddle’s piece is a broader overview, and it is excellent.

Anyway, here’s an excerpt from my piece:

A powerful union won’t stay down long unless a strong governor, like Jindal, keeps a reformist agenda front and center. Lack of gubernatorial leadership, as in Alabama, can lead to a major fiasco. This is especially true when the union finds unlikely allies to carry its water. Most of the state’s county school superintendents, usually at odds with the union, and most local school boards, sometimes at odds with the AEA, along with the statewide school superintendent, appointed by a non-union-friendly state board, all came out vociferously against charters. ….Finally, Governor Robert Bentley, elected with the indirect help of the AEA (which spent some $3 million attacking his Republican primary opponent), provided only the most tepid of support for charters.

Governors matter. Biddle pushes the same themes, opening thusly:

If you want to understand why gubernatorial leadership matters in overhauling American public education — and why school reformers must mobilize politically in order to gain traction for their efforts — consider the profiles in courage -(or lack thereof) of Alabama Gov. Robert Bentley and Louisiana’s Bobby Jindal in advancing their respective school choice and systemic reform plans. 

Somehow, with each passing day, Barack Obama appears less presidential while Mitt Romney appears more so.

Today provided perhaps the most stark illustration yet, as Obama publicly lost his temper and descended into argument with a reporter.  While announcing his unilateral decision to effectively impose “Dream Act” immunity to illegal immigrants via executive order, a reporter pressed Obama on whether he was favoring foreign citizens over American citizens when it came to jobs.  Scowling and angrily pointing his finger, Obama engaged in a back-and-forth hostile argument, interrupting himself multiple times to stutter, “Not while I’m speaking,” and “I didn’t ask for an argument, I’m answering your question.”

The spectacle can be seen here.

Perhaps Obama should simply stop speaking to the press on Fridays – recall last week’s “the private sector is doing fine” gaffe.

ABC News put together a helpful graphic showing different scenarios of how the Supreme Court might rule.

A decision is expected sometime in the next two weeks.