Fact-checking the immigration bill

A scorecard separating fact from fiction

Ted Cruz

This time, Senate funds security up front

The Senate immigration bill "has immediate legalization ... and the border security is sometime in the future, and just like in 1986, it's designed never to come into being."

Jeff Sessions

Not what provision says

The immigration bill "has a specific provision that says that Secretary Napolitano does not have to build any fence if she chooses not to."  

Bloggers

Hit the brakes on this rumor

The immigration bill includes free "Obamacars," motorcycles or scooters.

Dana Rohrabacher

Same bill in any language

On immigration reform, Marco Rubio "all along has been saying, 'We have to have border security first' " and then "he gets on Spanish TV, he ends up 

saying, 'No, no. That will never get in the way.' "

Justice Ginsburg Slams Supreme Court’s ‘Hubris’ In Fiery Dissent On Voting Rights Act

Justice Ruth Bader Ginsburg penned the fierce dissent against the Supreme Court’s 5-4 decision Tuesday to invalidate a key section of the Voting Rights Act, accusing the conservative justices of displaying “hubris” and a lack of sound reasoning.

“[T]he Court’s opinion can hardly be described as an exemplar of restrained and moderate decision making,” wrote the leader of the court’s liberal wing. “Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.”

Joined by the three other liberal-leaning justices, Ginsburg scolded the conservative majority and

its rationale for throwing out Section 4 of the law — which contains the formula Congress has used to determine which states and local governments must receive federal pre-approval before changing their voting laws.

“Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today,” she wrote. “The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story.”

Congress has renewed the Voting Rights Act four times — most recently in 2006 by an overwhelming 390-33 vote in the House and a 98-0 vote in the Senate. Chief Justice John Roberts, the author of the majority opinion, argued that “[o]ur country has changed” particularly in the mostly southern jurisdictions covered by the Voting Rights Act.

“In my judg­ment,” Ginsburg wrote, “the Court errs egregiously by overriding Congress’ decision.”

She lambasted the majority for “disturbing lapses” in its reasoning, citing as one example its failure to explain why the plaintiff in the case, Shelby County of Alabama, should be freed from preclearance despite its history of voter discrimination.

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” Ginsburg wrote.

The Clinton-appointed justice said there was a “sad irony” to the Supreme Court throwing out a piece of the law it admits has been effective at reducing discrimination.

“The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective,” she wrote. “The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ance is no longer needed. … With that belief, and the argument derived from it, history repeats itself.”

SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL.

Source: talkingpointsmemo.com

Details: Sekhar v. United States

In 1946, Congress enacted the Hobbs Act, which punishes extortion, “one of the oldest crimes in our legal tradition.”  Extortion is the act of using a threat of force or violence to take someone else’s property.  In Sekhar v. United States, the Court considered the definition of  “property” under the Hobbs Act.  Specifically, the Court considered the question whether a recommendation to invest in a fund can be considered property.

Sekhar involved an attempt to compel a New York State lawyer to recommend that his employer approve an investment for the New York Common Retirement Fund (NYCRF) (an employee pension fund).  Sekhar was the managing partner of a technology firm that was seeking investment commitments, including from the NYCRF.  The general counsel of the NY Comptroller’s office recommended against investing in the fund, and the Comptroller notified the fund of its decision.  The partner of the technology firm, however, had learned that the general counsel was having an extramarital affair, and allegedly sent threatening emails to the general counsel demanding that he change his recommendation or else information about the affair would be released to the media.  After those emails were traced back to the technology firm, Sekhar was indicted for attempted extortion in violation of the Hobbs Act.

Sekhar was convicted.  The Second Circuit affirmed Sekhar’s conviction, holding that the general counsel had a property right in “rendering sound legal advice to the Comptroller,” and that Sekhar had attempted to deprive the general counsel of that property right.  The Court granted certiorari, and today unanimously voted to reverse the Second Circuit.

Writing for the Court, Justice Scalia (joined by the Chief Justice and Justices Thomas, Ginsburg, Breyer, and Kagan), held that “what was charged in this case was not extortion.”  The Court explained that the

common law tradition of extortion, as well as the “genesis of the Hobbs Act,” requires that the property alleged to have been extorted must “be transferable” — that is, capable of passing from one person to another.  That is because the text of the Act defines extortion as “the obtaining of property from another.”  And, whatever might be said about the advice that the general counsel rendered, it cannot be considered “obtainable property” under the Hobbs Act. An employee’s “yet-to-be-issued recommendation [cannot] be called obtainable property, and less so still a yet-to-be-issued recommendation that would merely approve (but not effect) a particular investment.”

Justice Alito (joined by Justices Kennedy and Sotomayor) concurred in the judgment.  Justice Alito would have held that “internal recommendations regarding government decisions are not property.”  And if that is so, then “surely a government employee’s right to make such a recommendation is not property either (nor could it be deemed a property right).”  The majority differed from that approach, reserving judgment on the question whether some kinds of recommendations might be considered property (such as, for example, the right to make a recommendation as to who should receive a Pulitzer Prize).  Instead, the Court (in footnote 5) explained the key to its holding as the inability to transfer or obtain the right to issue the recommendation.

 Posted in Sekhar v. U.S., Merits Cases

Mike Gottlieb, Details: Sekhar v. United States, SCOTUSblog

Prop8 Decision in plain terms

Here's a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California's Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case.

Roundup Of Coverage Of SCOTUS Tuesday

Coverage continues of the five opinions in argued cases released by the Court yesterday. Earlier round-ups covering these decisions can be found here and here. A menu of yesterday’s coverage can be found here.

In Fisher v. University of Texas at Austin, the Court reaffirmed that race-conscious affirmative action programs are subject to strict scrutiny review, but stopped short of outlawing such programs altogether. At this blog, Elise Boddie notes that the decision “may suggest that the Court has become concerned about its institutional legitimacy and, therefore, is now wary of issuing sweeping decisions that depart Olatunde Johnson and Vik Amar also weigh in at this blog. Additional reports and commentary come from Nina Totenberg of NPR, Mark Walsh at Education Week, Tony Mauro at The National Law Journal, Richard Wolf of USA Today, Jess Bravin of The Wall Street Journal, Josh Douglas at PrawfsBlawg, Curt Levey of the Committee for Justice, Vinay Harpalani at IIT Chicago-Kent Faculty Blog, Beverly Mann at Angry Bear, and Anastasia Killian at PLF Liberty Blog.

radically from precedent.”

At this blog, Kevin Russell reports on the Court’s two five-to-four decisions narrowing the scope of Title VII employee discrimination claims. In University of Texas Southwestern Medical Center v. Nassar, the Court held that employee retaliation claims are subject to a traditional “but for” causation standard, rather than a less stringent standard of proof.  And in Vance v. Ball State University, the Court held that an employee is a “supervisor” for purposes of the employer’s vicarious liability only if he has the power to take “tangible employment actions” against the victim.  Additional coverage comes from NPR’s Nina Totenberg, Mark Walsh of Education Week, Marcia Coyle of The National Law Journal, Richard Wolf of USA Today, and Daniel Fisher of Forbes.

In United States v. Kebodeaux, the Court held that the registration requirement in the Sex Offender Registration and Notification Act (SORNA) is a valid exercise of Congress’s powers under the Necessary and Proper Clause. Steven Schwinn analyzes the opinion for this blog. Other coverage comes from Kent Scheidegger at C&C Blog.

Finally, in Mutual Pharmaceutical Co. v. Bartlett, the Court held that federal law preempts state law design defect claims targeting generic pharmaceutical products.

Other coverage focused on new cases the Court has agreed to review next Term. Tejinder Singh of thisblog reports on the Court’s decision to grant review in the consolidated cases Environmental Protection Agency v. EME Homer City Generation L.P., and American Lung Association v. EME Homer City Generation L.P, in which it will review the D.C. Circuit’s decision to invalidate an important provision of the Clean Air Act regulating cross-state pollution. In National Labor Relations Board v. Noel Canning, the Court will review the D.C. Circuit’s decision invalidating President Obama’s 2012 recess appointments to the NLRB. Reports come from Jeremy Leaming of ACSblog and Marcia Coyle of The National Law Journal.

Briefly

• At this blog, Tejinder Singh reports on yesterday’s summary reversal in Ryan v. Schad, a capital case in which the Court held that the Ninth Circuit abused its discretion by failing to make its prior judgment final and effective immediately upon the denial of a petition for certiorari. Other coverage comes from Kent Scheidegger at C&C Blog.
• Michael Fox at Ogletree Deakins reports on last Thursday’s decision in American Express Co. v. Italian Colors Restaurant, in which the Court held that the Federal Arbitration Act does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery.
• Mark Walsh of Education Week reports on the Court’s denial of cert. in Jefferson County School District R-1 v. Elizabeth E., which asked the Court to consider whether the Individuals with Disabilities Education Act requires a school district to pay for a residential placement that is required to treat a child’s mental illness.
• At The National Law Journal, Tony Mauro reports on the disagreement between Justice Kagan and Justice Alito in Descamps v. United States, a decision released last Thursday in which the Court made it harder for the federal government to use the fact of a prior criminal conviction to increase a criminal sentence.

Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Jun. 25, 2013, 8:13 AM), http://www.scotusblog.com/2013/06/tuesday-round-up-179/

Is Zimmerman Atty trying for a mistrial

On Tuesday night's 'AC360,' one of George Zimmerman's lawyers, Mark O'Mara, said that co-counsel Don West had not consulted him before using a knock-knock joke during his opening statements. That widely-criticized tactic 'should've been rethought,' conceded O'Mara, who also said they will make a 'dynamic decision' as the trial progresses on whether Zimmerman will take the witness stand.

Texas Abortion Bill Did Not Pass

It might not have been easy to stand on the House floor in those pink running shoes for over 10 hours, but it looks like Senator Wendy Davis’s filibuster actually worked. Despite first claiming to have successfully passed the expansive abortion restriction bill that Davis had attempted to stall, Republican reps. later recanted their victory, admitting that—thanks to the delay—the vote took place after midnight, when the legislative session expired, and was marred by confusion. This is bad news for Texas Governor Rick Perry, who was ready to sign the bill into law as part of his goal to make abortion “a thing of the past” this year.

At around 3:20 a.m., Planned Parenthood president Cecile Richards told raucous supporters in the Texas Capitol Rotunda that the abortion bill was dead.

Read it at New York Timese abortion “a thing of the past” this year.

At around 3:20 a.m., Planned Parenthood president Cecile Richards told raucous supporters in the Texas Capitol Rotunda that the abortion bill was dead.

Voting Rights Act Case SCOTUS

READ THE ROBERTS DECISION CLICK HERE
UPDATE The Voting Rights Act, first signed into law in 1965, was a keystone victory of the civil rights movement. American citizens withstood beatings, fire hoses and dogs to see the law passed. Some even gave their lives.

And for decades since, the law has protected the right to vote for millions of America's citizens -- regardless of faith, color or creed.

Today's ruling by the Supreme Court striking down parts of this important law is more than a disappointment -- it's an injustice. But we can't let it discourage us or force us out of this fight.

There is so much more work we can do to ensure everyone has the right -- and the ability -- to vote. That's the work Democrats are doing every day.- Donna Brazil

UPDATE:

The "bail in" procedure allow judges to add jurisdictions for preclearance So  a case can be brought in, say, Alabama seeking that remedy for Shelby County or even statewide. And in fact, it's a real possibility that the DOJ will react to the demise of the coverage formula by bringing "bail in" suits against jurisdictions with a history of violations.

We're continuing to look into this, but we think that one real possibility is that the bail-in provision will become a possible substitute for the coverage formula. Potentially covered jurisdictions will probably resist efforts to bail them in on the basis of old violations (as opposed to recent ones), and the issue will likely be litigated fiercely.

One of the most hotly contested cases this Supreme Court Term is Shelby County v. Holder, also known as the Voting Rights Act case. But what is this case about?

The Voting Rights Act was established in 1965 to combat a century of racial discrimination at the polls in states with a history of discrimination. Section 5 requires that the 16 states covered by the Act receive federal approval of any changes to their election laws. While this was originally a five-year provision, it has been continually renewed by Congress. When it was renewed in 2006 for an additional 25 years, Shelby County of Alabama filed suit, claiming Sections 5 and 4(b), which provides then formula deciding which areas need coverage, were unconstitutional and in need of updating to reflect modern population and voter turnout statistics.

In this blog post, we plan to address several of the views held by those close to the issue. 

Let's begin with a summary of the arguments presented to the Supreme Court on February 27, courtesy of The Constitutional Law Prof Blog.

In a heated debate among judges and petitioners, it is clear that this is a complex issue with implications for racial equality, voting laws, and state rights.

But that may be the only point that people can agree on. The arguments as to how the Justices should rule are wide-ranging and passionate. Take a look at some of these views.

Defer to Congress

In this Reuters blog post, author Richard L. Hasen describes the Act and explains the need to defer to Congress. He argues that the representatives of the people found reason to renew the Act. It passed the Senate with a 98-0 vote and the House with a similar margin before being signed into law by President George W. Bush. With such a wide margin that included senators and representatives from the affected states, he simply explains that "the court need not protect states that did not take steps to protect themselves."

Against the Act

In this blog post for the Cato Institute, Ilya Shapiro argues that Section 5 is unconstitutional and creates bad law. He explains why Section 2 covers the same issues that Section 5 does with the correct level of enforcement to ensure fairness at the polls.

Writing for The Heritage Foundation, Amy Payne claims the Act has outlived its purpose. Instead of continuing to ensure racial equality, she explains that the Act now gives unnecessary power to the federal government over the states.

Michael A. Carvin speaks on the Federalist Society's SCOTUScast to explain the three signs he sees that the court will strike down Section 5. He bases his predictions on the Justices' questions during oral argument and the history of the Act.

For the Act

In this blog post for Reuters, Morgan Kousser presents his case for the Act. He has collected a comprehensive list of over 4,000 incidents of voting rights incidents since 2009. Using statistics and the problems in recent history, he explains why the Act is still needed.

David A. Love argues for the Act in his post for The Grio. He denounces Scalia's remarks made during oral argument and worries that conservatives aim to take voting rights away from minorities.

For more views, statistics, and alternatives, visit Reuters' series of posts on the Act.

by Allison Bernstein

The Supreme Court And Affimitve Actiction

In its ruling today in Fisher v. University of Texas at Austin, the Court preserved Grutter’s core holding that “obtaining the educational benefits of ‘student body diversity is a compelling state interest that can justify the use of race in university admissions.’”   One might have predicted that Justice Kennedy would write the majority opinion.  But I doubt that anyone predicted the seven-to-one line-up (with Justice Kagan recused and Justice Ginsburg as the sole dissenter) or that there would so little in any of the Court’s opinions to surprise us.   Yet this near unanimity and the lack of significant change in higher education affirmative action law is precisely what might be noteworthy about Fisher.  Along these lines, two aspects of the Court’s decision are worth exploring: the relative brevity of the majority opinion and the significance of the remand.

By Olatunde Johnson 

Olatunde Johnson is a professor of law at Columbia University Law School

What you think about yesterday’s affirmative action ruling can depend on your perspective.  I don’t mean your ideology.  Instead, how the decision looks depends on the lens through which you view it – literally, your perspective.

Take the decision as one case at one moment in time: a data point.  By a broad majority, the Court applies real limits on affirmative action.  The courts must carefully review the government’s claim that it has no race-neutral way to achieve its goals for diversity in education.  Standing on its own, that is a solidly conservative ruling. 

Now look instead at the decision as part of a line across time.  As the Court has moved right, so have its decisions on race.  When Justice Alito succeeded Justice O’Connor, it seemed poised to severely limit affirmative action – maybe permitting it in name only.  Nothing like that happened yesterday.  From that perspective, the ruling seems much more moderate.  Given the likely alternative, liberals were ecstatic.

Now consider the ruling as the Justices do:  in three dimensions, as a part of the body of cases about the Constitution they consider over the years.  Here, the picture is incomplete.  We do not have all the decisions from this Term, or obviously from the years to come.

But we can say that the decision shows the Court functioning incredibly well, and willing to compromise.  It is not easy to craft a ruling on affirmative action joined by both Chief Justice Roberts and Justice Sotomayor.  They spoke with clarity and without bitterness.

And everyone got something.  The conservative Justices avoided a losing fight over whether the Court would reaffirm its deference to the government’s judgment about the need for diversity.  The more liberal Justices dodged a definitive ruling that the Texas plan was unconstitutional.

But I bet the ruling will look a little different as the three-dimensional picture gets filled in.  The Court has two other big race-related decisions on its plate.  A ruling on Section 5 of the Voting Rights Act is imminent.  And the Court put off until next Term the question whether fair housing claims can be based on the theory of “disparate impact” – i.e., unintended discrimination – a hot-button ideological question.

As an institution, the Court obviously prefers not to be caricatured as hostile to the claims of minorities.  If it were to both severely limit affirmative action and also strike down a central provision of the Voting Rights Act and then eliminate an important class of fair housing claims, all in pretty short order, that body of decisions would have looked hostile to civil rights claims.  Now the ruling as a whole appears quite balanced.

By: Tom Goldstein, 3D, SCOTUSblog (Jun. 25, 2013, 8:30 AM), http://www.scotusblog.com/2013/06/3d/

Edward Snowden said that he took a job with government contractor with the express purpose of leaking

“My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked,” Snowden said. “That is why I accepted that position about three months ago.”

Read the latest portion of the Post's interview with Snowden here.

National Security Agency leaker Edward Snowden said earlier this month that he took a job with government contractor Booz Allen Hamilton for the express purpose of collecting evidence of top secret surveillance programs.

Snowden made the statement in a June 12 interview with South China Morning Post that was published on Monday.

“My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked,” Snowden said. “That is why I accepted that position about three months ago.”

Read the latest portion of the Post's interview with Snowden here.

Important Cases Before The Supreme Court

• Fisher v. University of Texas at Austin
  Affirmative action
• Shelby County v. Holder
  Constitutionality of Section 5 of Voting Rights Act
• Hollingsworth v. Perry
  California's definition of marriage and the Equal Protection Clause
• United States v. Windsor
  Constitutionality of the Defense of Marriage Act
• Association for Molecular Pathology v. Myriad Genetics, Inc.
  Natural genes are not patentable; synthetic genes are.

McConnell Lashes Out At Media Matters

In a June 21 appearance at the American Enterprise Institute to speak about "Washington's ongoing assault on free speech," Senate Minority Leader Mitch McConnell (R-KY) described Media Matters for America as part of a "coordinated assault from groups on the left that don't like the idea of anyone criticizing their aims" that seeks to "harass" and "intimidate conservatives with the goal of scaring them off the political playing field."

McConnell described this as "a grave and growing threat to the First Amendment."

In response to McConnell's comments, Media Matters president Bradley Beychok said, "Mitch McConnell seems to be implying there is something underhanded or sinister about what Media Matters does. That is not the case. We monitor and correct conservative misinformation in the media. So what the Senator and so many others on the right are actually afraid of are their own words, which every day prove to contain plenty of misinformation."

TRANSCRIPT:

MCCONNELL: Last June I stood here and warned of a grave and growing threat to the First Amendment. That threat has not let up at all. Our ability to freely engage in civic life and organize in defense of our beliefs is still under coordinated assault from groups on the left that don't like the idea of anyone criticizing their aims. And from a White House that appears determined to shut up anybody who disagrees with it. Now on the outside there is a well-documented effort by a number of left wing groups like Media Matters to harass and to intimidate conservatives with the goal of scaring them off the political playing field and off the airwaves as well. An internal Media Matters memo from January 2010 showed the extent to which these tactics have been turned, literally, into a science. In it, we learned of the group's plan to conduct opposition research into the lives of on-air news personalities and other key decision makers over at Fox News. And to coordinate with 100 or so partner groups to pressure the network's advertisers and shareholders to, get this, by the threat of actual boycotts, rallies, demonstrations, shame, embarrassment and other tactics on a variety of issues important to the progressive agenda. They call themselves progressives these days. They had to make up a new name after the Reagan era because the term liberal is rather pejorative to most Americans these days. Now it's multiple databases could also be used, the memo said, to remove what it describes as chronically problematic media figures. Chronically problematic media figures. Or to preempt programming all together. Then of course there is the widespread effort to stifle speech actually from within the government itself, something the Obama administration has engaged in from its earliest days.

Some have traced this back even further to the 2008 campaign, but my central point when I was here with many of you last June, and my central point today, is this: the attacks on speech that we've seen over the past several years, were never, never, limited to a few left-wing pressure groups or even to the DISCLOSE Act which has been promoted over in Congress, which I'll turn to in a minute. They extend throughout the federal government to places like the FEC, the FCC, the HHS, and the SEC. And as all Americans now know, even to the IRS. These assaults often have been aided and abetted by the administration's allies in Congress and they are as virulent as ever. 

Source: MediaMatters.org