Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, by a 7–2 margin, the Supreme Court struck down a Tennessee law that prohibited newcomers (like IJ clients Doug and Mary Ketchum) from obtaining a retail liquor license until they’d resided in the state for two years. Moreover, the law also barred newcomers from renewing their license (which must be done annually) until they’d resided in the state for 10 years. Yup, you could get a license after two years, but then it would lapse for seven years. Lame! The law served only to protect existing liquor stores from competition, and indeed a private association of liquor retailers, rather than the state AG, defended the law at the high court. Click here to read more.

  • 42 U.S.C. § 7545(a)(2) would be a run-of-the-mill subsection of the Energy Independence and Security Act of 2007. Except that it doesn’t exist. Which is a problem because Congress mandates that the EPA periodically review the Act’s mandates, including the requirements of the nonexistent section (a)(2). EPA (2017): Our legal opinion is we should just ignore that section. D.C. Circuit: We don’t have jurisdiction to review that mere legal opinion.
  • As winged pigs passed overhead, Satan pulled on a cardigan, grabbed a mug of hot cocoa, and settled in to read this First Circuit opinion, in which a prosecutor is denied absolute immunity for withholding exculpatory evidence.
  • Plaistow, N.H. man misses mortgage payment; following a loan servicing rep’s advice, he mails in a check. Alas, the company returns his checks, says it’ll foreclose. He calls the loan rep back, who instructs him to send a cashier’s check. He does so, but the company forecloses anyway. Can he sue Fannie Mae, who appointed the loan servicing company, for service so bad it was tortious? First Circuit: It’s pellucid that Fannie Mae (a sorta gov’t instrumentality) cannot be liable for the unauthorized misdeeds of its agents, so his case is defenestrated.
  • Does the label “Diet Coke” (and the use of fit models in advertising) mislead consumers (in violation of New York law) into thinking the drink will assist in weight loss or at least not cause weight gain? The Second Circuit says no (and same deal with the same attorneys’ recent claims against Pepsi and Dr. Pepper). “Diet” means contains fewer calories than non-diet, and Diet Coke doesn’t have any calories.
  • In a brief order Tuesday, the Fourth Circuit remanded a case about the inclusion of a citizenship question on the 2020 census back to district court in Maryland. The district court case will go forward because of newly discovered evidence about whether the citizenship question was unconstitutionally intended to shift political power to white voters. (On Thursday, the U.S. Supreme Court reached a compromise holding in a parallel case: Although the government has the authority to ask the question, it needs to better explain its decision to do so. The Maryland case should be able to continue after the Supreme Court’s ruling.)
  • Allegation: Memphis police don’t take the investigation of sex assaults as seriously as other violent crimes. Over several decades, police declined to test over 15,000 rape kits, resulting in spoliation. Sixth Circuit (over a dissent): The city unreasonably delayed discovery and didn’t produce evidence that could allow plaintiffs to succeed on their equal protection claim. The case should not have been dismissed.
  • Polk County, Wisc. corrections officer sexually assaults two female inmates over three years. (He’s sentenced to 30 years.) Jury: For which the county is liable. Pay each woman $2 mil. Seventh Circuit: Reversed. The officer went to some lengths to conceal his misconduct; no reasonable jury could believe corrections officials were deliberately indifferent to the risk of such assaults. Dissent: Officials didn’t punish prior sexually predatory behavior by a different officer; the jury’s verdict’s is not so unreasonable.
  • Despite taking 12 depositions, making 294 document requests, and filing three motions to compel, Illinois attorney has literally no admissible evidence with which to defend against summary judgment. Yet defend he does. Without complying with the local rules. With papers the district court deems “laden with disingenuous and misleading statements.” Seventh Circuit: $66k in sanctions is OK with us.
  • Police suspect man sitting in his car is watching kids in Monmouth, Ill. park and masturbating. A search of the car yields contraband. They get a search warrant for his phone, laptop, and camera, which yields child porn. State court: Suppress all the evidence. Officers lacked sufficient justification for ordering him out of the car, among other things. But wait! Three weeks later, the feds seek search warrant based on info from the state’s searches. The man is convicted, gets an 11-year sentence. Seventh Circuit: Conviction affirmed. There’s no evidence the feds knew the state’s evidence had been suppressed.
  • Des Moines, Iowa man films music video with alleged gang members in which a gun is toted, touted. The video is posted on Facebook. Other photos on the man’s Facebook page appear to show him posing with guns and smoking pot. Probable cause to get a warrant for more info from Facebook? Eighth Circuit: Yes, indeed. His conviction for possessing a firearm while being an unlawful user of a controlled substance stands.
  • Atlanta officers have search, arrest warrants for nightclub, but it’s closed when they show up, so they decide to “attack” other commercial properties nearby. Without knocking, they enter what turns out to be a private motorcycle clubhouse (Dirty South Slab Riders) at 4 a.m. and arrest its owner for failing to produce business and alcohol licenses. Georgia court: He didn’t need those licenses. District court: He can sue the officers. Eleventh Circuit: Reversed. The officers could have reasonably believed he did need the licenses. The owner’s claims against the city can still go though.
  • The Colorado Supreme Court has good news and bad news for corporations in the Centennial State. The good news is that corporations are entitled to the Eighth Amendment’s protection against excessive fines. The bad news is that, for fines that accrue daily, excessiveness is based on the amount of the daily fine and not the total amount of fines. Which is unfortunate for a motel owner who learned, after seven years, that he had racked up 1,698 daily fines totaling over $841k for letting his worker’s comp insurance lapse.
  • And in en banc news: Fifth grade teacher at Catholic school needs time off to undergo surgery, chemo for breast cancer. She’s fired. A violation of the Americans With Disabilities Act? District court: No need to answer that. The First Amendment’s ministerial exception excepts the school from the ADA. Ninth Circuit (2018): She’s not a minister. The case should not have been dismissed. Judge Nelson (2019, joined by eight others), dissenting from denial of en banc review: The panel decision exhibits “the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.”
  • And in cert grant news: IJ is going back to the Big Show next term. In 2015, Montana legislators enacted a tax-credit scholarship program that enables low-income families to send their kids to private schools. (Individuals and businesses who donate to private scholarship organizations are eligible for a $150 tax credit. The scholarship organizations then give the donations to families.) But last year, relying on the state’s “Blaine Amendment” (a relic of 19th-century anti-Catholic bigotry (that 36 other states also still have in their constitutions)), the Montana Supreme Court invalidated the program because it allows families to send their kids to religious schools. Today, the U.S. Supreme Court agreed to consider whether that violates the Establishment Clause, the Free Exercise Clause, or the Equal Protection Clause. Read more here. And check out the cert petition here.

IJ is excited to announce a new opportunity to join the team as a Law and Liberty Fellow at our headquarters in Arlington, Virginia. If you are a rising 3L or recent law graduate and you are interested in a career in litigation and public interest law, this Fellowship is your opportunity to join IJ’s litigation team! IJ is accepting applications through July 15 and will notify all applicants of decisions by the end of August for two-year Fellowships beginning in August 2020. To learn more and apply, click here!

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Can Federal Partisan Gerrymandering Claims be Brought in State Court?

As most readers of this blog likely know, yesterday the Supreme Court held in Rucho v. Common Cause that constitutional claims of “partisan gerrymandering” are “nonjusticiable”—i.e., they are not “properly suited for resolution by the federal courts.” The opinion also notes the other potential legal instruments, such as federal legislation and state constitutions, that might be used to limit gerrymandering abuses.

One thing I have found myself wondering, though: After the Supreme Court’s decisions can state courts still hear federal constitutional claims about partisan gerrymandering? In other words, does Rucho apply to state courts, or only federal courts?

As a doctrinal matter, the question is whether the so-called “political question doctrine” governs state court interpretations of the federal constitution or only federal court interpretations. I was surprised not to find an easy answer to this. On one hand, Justice Rehnquist treated this question as obvious in a concurring opinion he wrote more than forty years ago, saying that “This Court, of course, may not prohibit state courts from deciding political questions, any more than it may prohibit them from deciding questions that are moot, so long as they do not trench upon exclusively federal questions of foreign policy.” Yet I don’t see a Supreme Court case that cleanly resolves this, though I certainly could have missed it and would be happy to know about it.

And on the other hand, the two best articles about the political question doctrine, one by Tara Grove and one by John Harrison, both seems to support application of the doctrine in state court. Grove notes that the predecessor to the modern political question doctrine did apply in state courts and that even now “it is not clear that the current doctrine should be an Article III jurisdictional device.” (N. 313) Harrison concludes more emphatically that “the political doctrine generally in state court.”

The Rucho opinion itself only mentions federal litigation in federal court (forbidden) and state litigation in state court (permitted). It just doesn’t discuss this possibility either way. There is obviously a lot of energy to litigate partisan gerrymandering claims, so after Rucho I wonder if at least some of those litigators will move to state courts and put this question more squarely on the table.

To be sure, it’s possible that there’s no real benefit in bringing federal constitutional claims in a state court. Maybe state constitutions provide just as much (or as little) hope of restraining gerrymandering, and their application would be largely immune from Supreme Court review. But the scope of the federal political question doctrine in state court seems like an important one in any event.

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The Loudest Voice Turns Roger Ailes into a Cartoon

The Loudest Voice. Showtime. Sunday, June 30, 10 p.m.

Fox News boss Roger Ailes was once reminiscing about his early show-biz career as a producer on the old talk-variety Mike Douglas Showwhich, he said required more delicacy than you might imagine. For instance, one afternoon the show’s bookers had scheduled onto the same show Richard Nixon and an exotic dancer who worked with a boa constrictor. Ailes had to hunt up separate green rooms for each. “I didn’t want to scare Nixon,” he said, “or the snake.”

That Ailes—irreverent, funny and charming—does not appear in the Showtime miniseries The Loudest Voice, an account of his rise and fall at Fox News. The Loudest Voice’s Ailes is a conniving, lying, backstabbing, and relentlessly priapic son of a bitch. It is impossible to believe anybody ever worked with him for longer than 10 minutes, and it is even more impossible to believe that any Showtime viewers are going to spend seven hours watching him.

The show is based on the 2014 book The Loudest Voice in the Room: How the Brilliant, Bombastic Roger Ailes Built Fox News—and Divided a Countrywhich the New York Times called “disingenuous” and suggested “may set a record for blind items and the untrustworthiness they engender.”

To be fair, the book did offer the very first reporting on Ailes’ profligate sexual misbehavior. And the stories that author Gabriel Sherman wrote for New York magazine two years later as Ailes’ Fox News empire crumbled under a tidal wave of sexual harassment suits were better sourced and almost entirely verified by events.

But the Ailes conjured in Sherman’s book and in Showtime’s series (played with fiendish delight by a bellowing, blustering Russell Crowe with the same zeal with which he throws telephones at errant hotel concierges) is utterly one-dimensional, like something Nancy Pelosi might have dreamed after a triple-anchovy pizza.

If he’s not feeling up a job applicant, he’s placing secret phone calls from phone booths to Dick Cheney to cook up a disinformational recipe for war in Iraq. Or he’s whispering malign sweet-talk in the ear of a job candidate: “You’re a trained killer. You’re an assassin. And I know that for a fact because I’m the guy who trained you.” And news, schmooz, it’s just TV. “It’s all the same—news, talk shows, English fucking bulldogs, it’s all the same,” Ailes declares to a senior producer.

Some of this is unquestionably true. Ailes, if he wasn’t quite as flippant about journalism as Crowe’s character, certainly believed TV news had to be entertaining, and hired a cast of brassy tabloid personalities like Geraldo Rivera, Bill O’Reilly, and Shep Smith to punch his network up. (None of these men appear in the first three hours of The Loudest Voice, and the queen of the Fox News attack blondes, Megyn Kelly, apparently isn’t in the show at all.)

And the rank sexual side of Ailes’ personality is fairly portrayed, too. Some of the targets of his aggressive advances—notably including Fox New daytime host Gretchen Carlson—covertly taped them, and Fox News at last word had paid out $45 million to settle their suits.

The political elements of The Loudest Voice, though, are much more thinly documented if at all. If there’s any evidence of Ailes creeping around New York alleys to plot genocide with Cheney, I haven’t seen it. The war in Iraq was not brought about by Fox News but by a delusional U.S. intelligence community that declared the presence of weapons of mass destruction in Baghdad a “slam dunk.”

More fundamentally, though, Roger Ailes was simply a more interesting man than the one you see on screen in The Loudest Voice. He brought ideological diversity to television news. (If you think it wasn’t politicized before Fox News came along, you must never have seen Dan Rather.) Yes, he put Sean Hannity on TV, but also Charles Krauthammer.

He practically invented the job of political image consulting as part of the Nixon campaign in 1968, and he wrote one of the great campaign wisecracks of all time when he got 73-year-old Ronald Reagan to promise, at the beginning of a 1984 presidential debate with 56-year-old Walter Mondale, that “I am not going to exploit, for political purposes, my opponent’s youth and inexperience.” Reagan and Nixon were his friends, but so were Barbara Walters and Susan Estrich. View Ailes’ life as an exercise in personal and political villainy, if you will; but it’s a fascinating one. The Loudest Voice is merely repellent.

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The Loudest Voice Turns Roger Ailes into a Cartoon

The Loudest Voice. Showtime. Sunday, June 30, 10 p.m.

Fox News boss Roger Ailes was once reminiscing about his early show-biz career as a producer on the old talk-variety Mike Douglas Showwhich, he said required more delicacy than you might imagine. For instance, one afternoon the show’s bookers had scheduled onto the same show Richard Nixon and an exotic dancer who worked with a boa constrictor. Ailes had to hunt up separate green rooms for each. “I didn’t want to scare Nixon,” he said, “or the snake.”

That Ailes—irreverent, funny and charming—does not appear in the Showtime miniseries The Loudest Voice, an account of his rise and fall at Fox News. The Loudest Voice’s Ailes is a conniving, lying, backstabbing, and relentlessly priapic son of a bitch. It is impossible to believe anybody ever worked with him for longer than 10 minutes, and it is even more impossible to believe that any Showtime viewers are going to spend seven hours watching him.

The show is based on the 2014 book The Loudest Voice in the Room: How the Brilliant, Bombastic Roger Ailes Built Fox News—and Divided a Countrywhich the New York Times called “disingenuous” and suggested “may set a record for blind items and the untrustworthiness they engender.”

To be fair, the book did offer the very first reporting on Ailes’ profligate sexual misbehavior. And the stories that author Gabriel Sherman wrote for New York magazine two years later as Ailes’ Fox News empire crumbled under a tidal wave of sexual harassment suits were better sourced and almost entirely verified by events.

But the Ailes conjured in Sherman’s book and in Showtime’s series (played with fiendish delight by a bellowing, blustering Russell Crowe with the same zeal with which he throws telephones at errant hotel concierges) is utterly one-dimensional, like something Nancy Pelosi might have dreamed after a triple-anchovy pizza.

If he’s not feeling up a job applicant, he’s placing secret phone calls from phone booths to Dick Cheney to cook up a disinformational recipe for war in Iraq. Or he’s whispering malign sweet-talk in the ear of a job candidate: “You’re a trained killer. You’re an assassin. And I know that for a fact because I’m the guy who trained you.” And news, schmooz, it’s just TV. “It’s all the same—news, talk shows, English fucking bulldogs, it’s all the same,” Ailes declares to a senior producer.

Some of this is unquestionably true. Ailes, if he wasn’t quite as flippant about journalism as Crowe’s character, certainly believed TV news had to be entertaining, and hired a cast of brassy tabloid personalities like Geraldo Rivera, Bill O’Reilly, and Shep Smith to punch his network up. (None of these men appear in the first three hours of The Loudest Voice, and the queen of the Fox News attack blondes, Megyn Kelly, apparently isn’t in the show at all.)

And the rank sexual side of Ailes’ personality is fairly portrayed, too. Some of the targets of his aggressive advances—notably including Fox New daytime host Gretchen Carlson—covertly taped them, and Fox News at last word had paid out $45 million to settle their suits.

The political elements of The Loudest Voice, though, are much more thinly documented if at all. If there’s any evidence of Ailes creeping around New York alleys to plot genocide with Cheney, I haven’t seen it. The war in Iraq was not brought about by Fox News but by a delusional U.S. intelligence community that declared the presence of weapons of mass destruction in Baghdad a “slam dunk.”

More fundamentally, though, Roger Ailes was simply a more interesting man than the one you see on screen in The Loudest Voice. He brought ideological diversity to television news. (If you think it wasn’t politicized before Fox News came along, you must never have seen Dan Rather.) Yes, he put Sean Hannity on TV, but also Charles Krauthammer.

He practically invented the job of political image consulting as part of the Nixon campaign in 1968, and he wrote one of the great campaign wisecracks of all time when he got 73-year-old Ronald Reagan to promise, at the beginning of a 1984 presidential debate with 56-year-old Walter Mondale, that “I am not going to exploit, for political purposes, my opponent’s youth and inexperience.” Reagan and Nixon were his friends, but so were Barbara Walters and Susan Estrich. View Ailes’ life as an exercise in personal and political villainy, if you will; but it’s a fascinating one. The Loudest Voice is merely repellent.

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Trump Will Win on DACA in the Supreme Court. He Should Cut a Deal Anyway.

The Supreme Court just agreed to hear whether President Donald Trump has the legal authority to scrap the Obama-era DACA (Deferred Action for Childhood Arrivals) program that allowed unauthorized Dreamers to live in the country without fear of deportation. (Dreamers are folks who grew up in the United States after they were brought to this country without proper authorization as minors.)

Will Trump win? Yes—and not because he has stacked the court with conservatives, although that won’t hurt—but because DACA was done through executive action. And when it comes to immigration enforcement, Congress has given the president so much discretion that what one executive giveth, the other can taketh away!

Soon after assuming office, Trump not only eliminated Obama’s program handing deportation relief to the parents of Dreamers—the so-called Deferred Action for Parental Arrivals (DAPA)—but also Dreamers themselves.

Getting rid of DAPA was less problematic because it got tied up in court before it was implemented. DACA, however, was different.

Of the 11 million or so undocumented folks in the country, some 5.5 million are Dreamers. And of those, 800,000 had already availed themselves of DACA. Under this program, applicants spent the first two years on “parole.” That is, they got an official assurance that, if they lived crime-free, they would not be deported for two years, after which they could reapply for additional relief. Moreover, by law, people who get paroled were entitled to work permits and drivers licenses, so that they could get jobs and drive to them rather than become a drain on welfare. In fact, to obtain and maintain their DACA status, Dreamers were required to be gainfully employed or enrolled in school.

Although Trump scrapped the program, he delayed its termination by six months to give Congress time to pass a bill giving Dreamers permanent legal status. However, he made so many unreasonable demands in exchange for his signature on the bill—billions of dollars in his wall! mandating E-Verify! defunding sanctuary cities! cuts in legal immigration!—that Democrats balked and the whole effort went down in flames.

Meanwhile, two federal courts—the United States Court of Appeals for the Ninth Circuit and the Fourth Circuit—stepped in and barred Trump from ending the program (diminishing pressure on both sides to cut a deal). They also issued an injunction requiring the administration to keep the program intact while the appeals process played out, although they did allow it to stop admitting new Dreamers into the program. The Supreme Court twice declined the administration’s request for a review, but finally relented this time around.

The reason Trump is likely to prevail in court is because a president enjoys vast discretion in setting enforcement priorities when it comes to immigration. Although only Congress can offer permanent legalization, the executive can choose whether to throw someone out of the country or hand them temporary parole to live in the country. It is almost entirely up to him or her.

This arguably means that just as Obama was within his rights to hand unauthorized immigrants deportation relief (contrary to the claims of many conservatives, as I wrote at that time), Trump is within his rights to take that relief away. To maintain otherwise would mean that Obama wasn’t giving undocumented folks temporary relief but permanent legalization without congressional approval, which doesn’t make any sense.

Even though Trump will almost certainly prevail in court, he shouldn’t necessarily celebrate. The Supreme Court’s ruling is expected in 2020 spring or summer. In other words, just a few months before the November elections. If the court gives him the green light to scrap DACA but he dithers in mass deporting Dreamers, he will lose face with his hardline restrictionist supporters whom he is trying to mobilize to the polls. However, if he does deport, he will inflame public opinion given that Dreamers are a highly sympathetic group. After all, two-thirds Americans support the legalization of Dreamers because they don’t want to visit the “sins” of their parents on the children. Rounding up folks who have lived in America all their lives and deporting them to countries that they scarcely know won’t make for good optics, to put it mildly.

Trump’s best bet would be to cut a deal with Democrats on Dreamers before the court rules.

 

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Trump Will Win on DACA in the Supreme Court. He Should Cut a Deal Anyway.

The Supreme Court just agreed to hear whether President Donald Trump has the legal authority to scrap the Obama-era DACA (Deferred Action for Childhood Arrivals) program that allowed unauthorized Dreamers to live in the country without fear of deportation. (Dreamers are folks who grew up in the United States after they were brought to this country without proper authorization as minors.)

Will Trump win? Yes—and not because he has stacked the court with conservatives, although that won’t hurt—but because DACA was done through executive action. And when it comes to immigration enforcement, Congress has given the president so much discretion that what one executive giveth, the other can taketh away!

Soon after assuming office, Trump not only eliminated Obama’s program handing deportation relief to the parents of Dreamers—the so-called Deferred Action for Parental Arrivals (DAPA)—but also Dreamers themselves.

Getting rid of DAPA was less problematic because it got tied up in court before it was implemented. DACA, however, was different.

Of the 11 million or so undocumented folks in the country, some 5.5 million are Dreamers. And of those, 800,000 had already availed themselves of DACA. Under this program, applicants spent the first two years on “parole.” That is, they got an official assurance that, if they lived crime-free, they would not be deported for two years, after which they could reapply for additional relief. Moreover, by law, people who get paroled were entitled to work permits and drivers licenses, so that they could get jobs and drive to them rather than become a drain on welfare. In fact, to obtain and maintain their DACA status, Dreamers were required to be gainfully employed or enrolled in school.

Although Trump scrapped the program, he delayed its termination by six months to give Congress time to pass a bill giving Dreamers permanent legal status. However, he made so many unreasonable demands in exchange for his signature on the bill—billions of dollars in his wall! mandating E-Verify! defunding sanctuary cities! cuts in legal immigration!—that Democrats balked and the whole effort went down in flames.

Meanwhile, two federal courts—the United States Court of Appeals for the Ninth Circuit and the Fourth Circuit—stepped in and barred Trump from ending the program (diminishing pressure on both sides to cut a deal). They also issued an injunction requiring the administration to keep the program intact while the appeals process played out, although they did allow it to stop admitting new Dreamers into the program. The Supreme Court twice declined the administration’s request for a review, but finally relented this time around.

The reason Trump is likely to prevail in court is because a president enjoys vast discretion in setting enforcement priorities when it comes to immigration. Although only Congress can offer permanent legalization, the executive can choose whether to throw someone out of the country or hand them temporary parole to live in the country. It is almost entirely up to him or her.

This arguably means that just as Obama was within his rights to hand unauthorized immigrants deportation relief (contrary to the claims of many conservatives, as I wrote at that time), Trump is within his rights to take that relief away. To maintain otherwise would mean that Obama wasn’t giving undocumented folks temporary relief but permanent legalization without congressional approval, which doesn’t make any sense.

Even though Trump will almost certainly prevail in court, he shouldn’t necessarily celebrate. The Supreme Court’s ruling is expected in 2020 spring or summer. In other words, just a few months before the November elections. If the court gives him the green light to scrap DACA but he dithers in mass deporting Dreamers, he will lose face with his hardline restrictionist supporters whom he is trying to mobilize to the polls. However, if he does deport, he will inflame public opinion given that Dreamers are a highly sympathetic group. After all, two-thirds Americans support the legalization of Dreamers because they don’t want to visit the “sins” of their parents on the children. Rounding up folks who have lived in America all their lives and deporting them to countries that they scarcely know won’t make for good optics, to put it mildly.

Trump’s best bet would be to cut a deal with Democrats on Dreamers before the court rules.

 

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Harris-Biden Busing Spat Shows Democrats Can’t Have an Honest Conversation About Racial Issues

It may be hard to believe that race-based busing has suddenly become a major issue in the 2020 presidential campaign, more than three decades after it was the focus of acrimonious debate in Northern cities such as Boston and 12 years after the U.S. Supreme Court deemed it unconstitutional. But during last night’s Democratic debate, Sen. Kamala Harris (D-Calif.) used busing as an effective weapon against Joe Biden, portraying his views on the subject as outmoded and unenlightened, evidence that the 76-year-old former vice president, who served in the Senate from 1973 to 2009, is past his sell-by date and should yield to a younger, woker generation of Democrats such as herself. The clash revealed dishonesty on both sides, pointing to the same troubling reality: There is no room in the modern Democratic Party for a nuanced discussion of anything related to race.

“I did not oppose busing in America,” Biden insisted. “What I opposed is busing ordered by the Department of Education.” As many journalists pointed out, that is simply not true. Yes, Biden as a senator opposed busing when it was mandated by federal courts, but he also criticized the very concept as a response to de facto segregation.

“I oppose busing,” Biden told a Delaware newspaper in 1975. “It’s an asinine concept, the utility of which has never been proven to me. I’ve gotten to the point where I think our only recourse to eliminate busing may be a constitutional amendment.”

Biden argued that busing is inherently racist. “The new integration plans being offered are really just quota systems to assure a certain number of blacks, Chicanos, or whatever in each school,” he said in the same interview. “That, to me, is the most racist concept you can come up with. What it says is, ‘In order for your child with curly black hair, brown eyes, and dark skin to be able to learn anything, he needs to sit next to my blond-haired, blue-eyed son.’ That’s racist! Who the hell do we think we are, that the only way a black man or woman can learn is if they rub shoulders with my white child?”

At the same time, Biden recognized the problem he is now facing: His opposition to busing made him an ally of segregationists. “The unsavory part about this is when I come out against busing, as I have all along, I don’t want to be mixed up with a George Wallace,” he said. “The real problem with busing,” he said, was that “you take people who aren’t racist, people who are good citizens, who believe in equal education and opportunity, and you stunt their children’s intellectual growth by busing them to an inferior school…and you’re going to fill them with hatred.”

Three decades later, in his 2007 memoir Promises to Keep, Biden described a 1978 forum at a high school near Wilmington where “my voters—working-class Democrats” were outraged by court-ordered busing:

Once I got up to the podium, everybody in the room wanted to know where I really stood on busing. I tried to explain what I’d been doing in the Senate and the difference between de facto (or unintentional) segregation and de jure (or government-intended) segregation. But the audience kept pushing me. What they wanted was a full-out mea culpa and a hard statement that I despised busing. And I got hot. I wanted them to be clear where I stood. Look, I told them, I was against busing to remedy de facto segregation owing to housing patterns and community comfort, but if it was intentional segregation, I’d personally pay for helicopters to move the children. There were howls in the crowd.

I stand by the statement…

“He never thought busing was the best way to integrate schools in Delaware—a position which most people now agree with,” Biden’s spokesman told The Washington Post last month. “As he said during those many years of debate, busing would not achieve equal opportunity. And it didn’t.”

Yet last night, when Harris noted that she was “bused to school every day” as “part of the second class to integrate, Berkeley, California, public schools almost two decades after Brown v. Board of Education,” Biden said: “You would’ve been able to go to school the same exact way because it was a local decision made by your city council. That’s fine. That’s one of the things I argued for that we should not be—we should be breaking down these lines.” Given Biden’s fundamental disagreement with busing not only as a federal mandate but as policy, that response was more than a little misleading.

Harris, for her part, implied that there was never any legitimate, non-bigoted reason to oppose busing. “I do not believe you are a racist,” she told Biden, even while faulting him for allying himself with segregationists such as Sens. James Eastland (D-Miss.), Herman Talmadge (D-Ga.), and Jesse Helms (R-N.C.) on the issue of busing. Biden’s obfuscation essentially ceded this point to her, since he seemed to think he could not honestly describe his views without coming across as racist.

The implication is that all those “working-class Democrats” in Delaware who demanded that Biden take a firm stand against busing were racists, and so were all the other parents across the country who objected to a policy that forced their kids, because of their skin color, to take long bus rides to unfamiliar neighborhoods in the name of racial equality. Yet according to a 1978 RAND Corporation study of the demographic shifts spurred by mandatory busing, “racism does not explain white flight.” The study cited survey data indicating that most whites who opposed busing simply preferred schools in their neighborhood, mentioning “issues such as distance, loss of choice, lost time, and lost friends.” And “when asked about the benefits and harms of desegregation, a large majority of white parents believed it would improve neither minority education nor race relations, while it would increase discipline problems and racial tensions.” In other words, “most white parents believe they are being forced to give up something they value—the neighborhood school—in return for a policy that benefits no one and may even being harmful.”

Most black parents took a different view, but that does not mean the white parents’ concerns were illegitimate or covers for racism. The RAND report noted that “the vast majority of whites accept desegregated schools when brought about by voluntary methods but reject them when their children are mandatorily bused or reassigned to schools outside their neighborhoods.” The study also cited data indicating that “whites with low racial prejudice scores were nearly as opposed to busing as persons with high prejudice.”

The resistance to busing culminated in a 2007 Supreme Court case involving school districts in Seattle and Jefferson County, Kentucky. The Seattle district had never been legally segregated or subject to court-ordered desegregation, while the Jefferson County district had been operating under a desegregation decree that was dissolved in 2000. In both districts, busing had a “minimal effect” on the racial composition of schools. And because the policy entailed classifying students by race, it had to withstand “strict scrutiny,” meaning the districts had to show it was “narrowly tailored” to achieve a “compelling government interest.”

In a 5-to-4 decision pitting the Court’s “conservative” and “liberal” wings against each other, the majority concluded that the busing programs failed that test. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John Roberts famously concluded.

Kamala Harris undoubtedly disagrees with that decision. Joe Biden agrees on the subject of busing, although he probably would object to the broader implications. But in the current political climate within the Democratic Party, it is impossible to have a candid conversation about those differences.

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Michigan Congressmen Blame Justin Amash After Their State Is Passed Over for Missile Defense Site

Rep. Justin Amash (R–Mich.) is facing heat at home after his state was passed over for a proposed missile defense site; his colleagues in Congress think Amash’s outspokenness about unchecked defense spending is to blame.

Following a vetting period, the Department of Defense (DOD) issued a letter stating that it would be choosing Fort Drum in New York over Fort Custer in Michigan as the site for a potential Intercontinental Ballistic Missile (ICBM) interceptor. The proposed ICBM interceptor would be designated to defend the East Coast from foreign attacks. The project, however, is currently in limbo as the Pentagon determined that the ICBM sites in Alaska and California are sufficient.

The decision inspired a bout of drama from Michigan Republicans, who ultimately decided that Amash’s stances on defense spending accountability were to blame for the department’s decision to look elsewhere for this hypothetical project.

“We always thought and were led to believe that on the merits, the Fort Custer site would be the best for the taxpayer and the defense of the country to build a new missile defense site. In fact, in the letter the Pentagon provided to the Committee on Armed Services, it makes clear that Fort Custer provided clear strategic advantages. It also states that the decision could be re-evaluated, and we would encourage them to do so,” wrote Republican Reps. Fred Upton, Bill Huizenga, Tim Walberg, Paul Mitchell, and Jack Bergman.

“It appears that Congressman Amash’s consistent opposition to all defense spending bills over the years was too much for the Pentagon to accept. It did not help, and now they selected New York for the new missile defense site.”

Amash responded to his critics on Twitter.

“It appears that my colleagues’ consistent support for trillions in new debt over the years was to buy the Pentagon’s affection,” he wrote. “Taxpayer dollars for defense should be used to boost Americans’ safety, not to boost politicians. The Department of Defense is not a jobs program.”

This is nothing new from Amash, who has made limited government and fiscal accountability the center of his campaigns and rhetoric for years. But he’s faced significant backlash from members in his own party in recent months. Just this year alone, Amash stepped away from the House Freedom Caucus, said President Trump “engaged in impeachable conduct” based on findings in the Mueller report, and has criticized other Republican politicians who have failed to challenge Trump’s trade war and spending.

While his actions have earned him cheers from his more libertarian-leaning supporters, conventional Republicans may be looking to unseat him. A third Republican primary challenger announced for Amash’s seat on Thursday and mid-June poll also showed one of his pro-Trump challengers with an early lead.

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Harris-Biden Busing Spat Shows Democrats Can’t Have an Honest Conversation About Racial Issues

It may be hard to believe that race-based busing has suddenly become a major issue in the 2020 presidential campaign, more than three decades after it was the focus of acrimonious debate in Northern cities such as Boston and 12 years after the U.S. Supreme Court deemed it unconstitutional. But during last night’s Democratic debate, Sen. Kamala Harris (D-Calif.) used busing as an effective weapon against Joe Biden, portraying his views on the subject as outmoded and unenlightened, evidence that the 76-year-old former vice president, who served in the Senate from 1973 to 2009, is past his sell-by date and should yield to a younger, woker generation of Democrats such as herself. The clash revealed dishonesty on both sides, pointing to the same troubling reality: There is no room in the modern Democratic Party for a nuanced discussion of anything related to race.

“I did not oppose busing in America,” Biden insisted. “What I opposed is busing ordered by the Department of Education.” As many journalists pointed out, that is simply not true. Yes, Biden as a senator opposed busing when it was mandated by federal courts, but he also criticized the very concept as a response to de facto segregation.

“I oppose busing,” Biden told a Delaware newspaper in 1975. “It’s an asinine concept, the utility of which has never been proven to me. I’ve gotten to the point where I think our only recourse to eliminate busing may be a constitutional amendment.”

Biden argued that busing is inherently racist. “The new integration plans being offered are really just quota systems to assure a certain number of blacks, Chicanos, or whatever in each school,” he said in the same interview. “That, to me, is the most racist concept you can come up with. What it says is, ‘In order for your child with curly black hair, brown eyes, and dark skin to be able to learn anything, he needs to sit next to my blond-haired, blue-eyed son.’ That’s racist! Who the hell do we think we are, that the only way a black man or woman can learn is if they rub shoulders with my white child?”

At the same time, Biden recognized the problem he is now facing: His opposition to busing made him an ally of segregationists. “The unsavory part about this is when I come out against busing, as I have all along, I don’t want to be mixed up with a George Wallace,” he said. “The real problem with busing,” he said, was that “you take people who aren’t racist, people who are good citizens, who believe in equal education and opportunity, and you stunt their children’s intellectual growth by busing them to an inferior school…and you’re going to fill them with hatred.”

Three decades later, in his 2007 memoir Promises to Keep, Biden described a 1978 forum at a high school near Wilmington where “my voters—working-class Democrats” were outraged by court-ordered busing:

Once I got up to the podium, everybody in the room wanted to know where I really stood on busing. I tried to explain what I’d been doing in the Senate and the difference between de facto (or unintentional) segregation and de jure (or government-intended) segregation. But the audience kept pushing me. What they wanted was a full-out mea culpa and a hard statement that I despised busing. And I got hot. I wanted them to be clear where I stood. Look, I told them, I was against busing to remedy de facto segregation owing to housing patterns and community comfort, but if it was intentional segregation, I’d personally pay for helicopters to move the children. There were howls in the crowd.

I stand by the statement…

“He never thought busing was the best way to integrate schools in Delaware—a position which most people now agree with,” Biden’s spokesman told The Washington Post last month. “As he said during those many years of debate, busing would not achieve equal opportunity. And it didn’t.”

Yet last night, when Harris noted that she was “bused to school every day” as “part of the second class to integrate, Berkeley, California, public schools almost two decades after Brown v. Board of Education,” Biden said: “You would’ve been able to go to school the same exact way because it was a local decision made by your city council. That’s fine. That’s one of the things I argued for that we should not be—we should be breaking down these lines.” Given Biden’s fundamental disagreement with busing not only as a federal mandate but as policy, that response was more than a little misleading.

Harris, for her part, implied that there was never any legitimate, non-bigoted reason to oppose busing. “I do not believe you are a racist,” she told Biden, even while faulting him for allying himself with segregationists such as Sens. James Eastland (D-Miss.), Herman Talmadge (D-Ga.), and Jesse Helms (R-N.C.) on the issue of busing. Biden’s obfuscation essentially ceded this point to her, since he seemed to think he could not honestly describe his views without coming across as racist.

The implication is that all those “working-class Democrats” in Delaware who demanded that Biden take a firm stand against busing were racists, and so were all the other parents across the country who objected to a policy that forced their kids, because of their skin color, to take long bus rides to unfamiliar neighborhoods in the name of racial equality. Yet according a 1978 RAND Corporation study of the demographic shifts spurred by mandatory busing, “racism does not explain white flight.” The study cited survey data indicating that most whites who opposed busing simply preferred schools in their neighborhood, mentioning “issues such as distance, loss of choice, lost time, and lost friends.” And “when asked about the benefits and harms of desegregation, a large majority of white parents believed it would improve neither minority education nor race relations, while it would increase discipline problems and racial tensions.” In other words, “most white parents believe they are being forced to give up something they value—the neighborhood school—in return for a policy that benefits no one and may even being harmful.”

Most black parents took a different view, but that does not mean the white parents’ concerns were illegitimate or covers for racism. The RAND report noted that “the vast majority of whites accept desegregated schools when brought about by voluntary methods but reject them when their children are mandatorily bused or reassigned to schools outside their neighborhoods.” The study also cited data indicating that “whites with low racial prejudice scores were nearly as opposed to busing as persons with high prejudice.”

The resistance to busing culminated in a 2007 Supreme Court case involving school districts in Seattle and Jefferson County, Kentucky. The Seattle district had never been legally segregated or subject to court-ordered desegregation, while the Jefferson County district had been operating under a desegregation decree that was dissolved in 2000. In both districts, busing had a “minimal effect” on the racial composition of schools. And because the policy entailed classifying students by race, it had to withstand “strict scrutiny,” meaning the districts had to show it was “narrowly tailored” to achieve a “compelling government interest.”

In a 5-to-4 decision pitting the Court’s “conservative” and “liberal” wings against each other, the majority concluded that the busing programs failed that test. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John Roberts famously concluded.

Kamala Harris undoubtedly disagrees with that decision. Joe Biden agrees on the subject of busing, although he probably would object to the broader implications. But in the current political climate within the Democratic Party, it is impossible to have a candid conversation about those differences.

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Michigan Congressmen Blame Justin Amash After Their State Is Passed Over for Missile Defense Site

Rep. Justin Amash (R–Mich.) is facing heat at home after his state was passed over for a proposed missile defense site; his colleagues in Congress think Amash’s outspokenness about unchecked defense spending is to blame.

Following a vetting period, the Department of Defense (DOD) issued a letter stating that it would be choosing Fort Drum in New York over Fort Custer in Michigan as the site for a potential Intercontinental Ballistic Missile (ICBM) interceptor. The proposed ICBM interceptor would be designated to defend the East Coast from foreign attacks. The project, however, is currently in limbo as the Pentagon determined that the ICBM sites in Alaska and California are sufficient.

The decision inspired a bout of drama from Michigan Republicans, who ultimately decided that Amash’s stances on defense spending accountability were to blame for the department’s decision to look elsewhere for this hypothetical project.

“We always thought and were led to believe that on the merits, the Fort Custer site would be the best for the taxpayer and the defense of the country to build a new missile defense site. In fact, in the letter the Pentagon provided to the Committee on Armed Services, it makes clear that Fort Custer provided clear strategic advantages. It also states that the decision could be re-evaluated, and we would encourage them to do so,” wrote Republican Reps. Fred Upton, Bill Huizenga, Tim Walberg, Paul Mitchell, and Jack Bergman.

“It appears that Congressman Amash’s consistent opposition to all defense spending bills over the years was too much for the Pentagon to accept. It did not help, and now they selected New York for the new missile defense site.”

Amash responded to his critics on Twitter.

“It appears that my colleagues’ consistent support for trillions in new debt over the years was to buy the Pentagon’s affection,” he wrote. “Taxpayer dollars for defense should be used to boost Americans’ safety, not to boost politicians. The Department of Defense is not a jobs program.”

This is nothing new from Amash, who has made limited government and fiscal accountability the center of his campaigns and rhetoric for years. But he’s faced significant backlash from members in his own party in recent months. Just this year alone, Amash stepped away from the House Freedom Caucus, said President Trump “engaged in impeachable conduct” based on findings in the Mueller report, and has criticized other Republican politicians who have failed to challenge Trump’s trade war and spending.

While his actions have earned him cheers from his more libertarian-leaning supporters, conventional Republicans may be looking to unseat him. A third Republican primary challenger announced for Amash’s seat on Thursday and mid-June poll also showed one of his pro-Trump challengers with an early lead.

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