JUSTICE KENNEDY’S EYES ARE WIDE SHUT ON THE GAY RIGHTS ASSAULT ON RELIGION

JUSTICE KENNEDY’S EYES ARE WIDE SHUT ON THE GAY RIGHTS ASSAULT ON RELIGION

BY PAUL MIRENGOFF IN GAY MARRIAGE, RELIGION, SUPREME COURT

In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Justice Kennedy acknowledged the dangers of ruling that disparate impact analysis applies to Fair Housing Act cases, and he tried to erect limitations that would avoid these dangers. However, as Justice Alito showed in his dissent, the supposed limitations will not constrain liberal bureaucrats and judges.

A parallel exchange can be found in today’s ruling finding a constitutional right to gay marriage. Justice Kennedy wrote:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.

Mighty big of Kennedy to say so.

Unfortunately, though, the First Amendment doesn’t ensure “proper” protection. It ensures only the protection that bureaucrats, legislators, judges, and ultimately (as is clear from Justice Kennedy’s opinion as a whole) the zeitgeist provide. Justice Kennedy’s weak, vague statement will not discourage liberal bureaucrats, legislators, and judges from minimizing First Amendment protection.

Moreover, Justice Kennedy’s assurances about what opponents of gay marriage will be able to say didn’t extend to how they can behave. Thus, for example, individuals operating small businesses can expect to be fined, driven out of operation, and possibly imprisoned for exercising beliefs that “are so central to their lives and faiths.”

As in the Fair Housing case, Justice Alito addressed Justice Kennedy’s lame assurances. He wrote:

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true.

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

Chief Justice Roberts also called out Justice Kennedy on this point:

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.

There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

I assume that the four liberal judges simply wouldn’t sign an opinion that provided anything more than Kennedy’s empty language about religion freedom. The only hope was that Kennedy would insist on stronger language, and write separately if necessary.

This hope turned out to be in vain.

Does Kennedy believe that his limp, almost perfunctory “assurances” mean anything? One would think he’s not that oblivious. But his weak “assurances” in the housing case suggest that maybe he is.

The four liberal Justices must be delighted that Kennedy is inventing law with his eyes wide shut.

http://www.powerlineblog.com/archives/2015/06/from-justice-scalias-dissent-2.php

Have Democrats Pulled Too Far Left?

Have Democrats Pulled Too Far Left?

AMONG liberals, it’s almost universally assumed that of the two major parties, it’s the Republicans who have become more extreme over the years. That’s a self-flattering but false narrative.

This is not to say the Republican Party hasn’t become a more conservative party. It has. But in the last two decades the Democratic Party has moved substantially further to the left than the Republican Party has shifted to the right. On most major issues the Republican Party hasn’t moved very much from where it was during the Gingrich era in the mid-1990s.

To see just how far the Democratic Party has moved to the left, compare Barack Obama with Bill Clinton. In 1992, Mr. Clinton ran as a centrist New Democrat. In several respects he governed as one as well. He endorsed a sentencing policy of “three strikes and you’re out,” and he proposed adding 100,000 police officers to the streets.

In contrast, President Obama’s former attorney general, Eric H. Holder Jr., criticized what he called “widespread incarceration” and championed the first decrease in the federal prison population in more than three decades. Mr. Obama, meanwhile, has chosen to focus on police abuses.

One of the crowning legislative achievements under Mr. Clinton was welfare reform. Mr. Obama, on the other hand, loosened welfare-to-work requirements. Mr. Obama is more liberal than Mr. Clinton was on gay rights, religious liberties, abortion rights, drug legalization and climate change. He has focused far more attention on income inequality than did Mr. Clinton, who stressed opportunity and mobility. While Mr. Clinton ended one entitlement program (Aid to Families With Dependent Children), Mr. Obama is responsible for creating the Affordable Care Act, the largest new entitlement since the Great Society. He is the first president to essentially nationalize health care.

Mr. Clinton lowered the capital-gains tax rate; Mr. Obama has proposed raising it. Mr. Clinton cut spending and produced a surplus. Under Mr. Obama, spending and the deficit reached record levels. In foreign policy, Mr. Obama has shown himself to be far more critical of traditional allies and more supine toward our adversaries than Mr. Clinton was. Mr. Obama has often acted as if American strength is a problem to which the solution is retrenchment, or even retreat.

Another bellwether: Hillary Rodham Clinton, in positioning herself for the 2016 election, is decidedly more liberal than she and her husband once were on illegal immigration, gay marriage and incarceration. She has called to “end the era of mass incarceration” and spoken about the importance of “toppling” the wealthiest 1 percent. She has remained noncommittal on the Trans-Pacific Partnership, the free-trade agreement that has drawn ire from the left.

The Democratic Party, then, has moved steadily to the left since the Clinton presidency. In fact, since his re-election, Mr. Obama’s inner progressive has been liberated. (An exception is the administration’s conditional approval of oil drilling off the Alaskan coast, starting this summer.) Other examples are his executive action granting temporary legal status to millions of illegal immigrants, his claim that gay marriage is a constitutional right, and his veto of legislation authorizing construction of the Keystone XL pipeline.

The Democratic Party is now a pre-Bill Clinton party, the result of Mr. Obama’s own ideological predilections and the coalition he has built. Liberals will argue that the Democratic Party has benefited from this movement to the left and cite the election victories of Mr. Obama as evidence of it. The nation has become more liberal, they say, and the Democratic Party has wisely moved with it.

In some respects, like gay rights, the nation is more liberal than it was two decades ago. On the other hand, it is more conservative today than it was in the mid-1990s. A recent Pew Research Center poll found that Republicans have opened substantial leads over Democrats on dealing with terrorism, foreign policy and taxes. They’re competitive on the economy, and a good deal more competitive than in the past on traditional liberal issues like immigration and health care. Self-identified conservatives significantly outnumber self-identified liberals.

One can also plausibly argue that the Republican Party is the governing party in America. After two enormous losses by Democrats in the 2010 and 2014 midterm elections, Republicans control the Senate and the House of Representatives. There are currently 31 Republican governors compared with 18 for Democrats. Republicans control 68 of 98 state legislative chambers and the most state legislative seats since the 1920s. Nearly half of Americans now live in states under total Republican control. The Obama years have been politically good for Mr. Obama; they have been disastrous for his party. That is a problematic legacy for a man who envisioned himself as a Franklin Delano Roosevelt-like transformational political figure.

Those who insist that the Democratic Party’s march to the left carries no political risks might consider the fate of the British Labour Party earlier this month. Ed Miliband, its leader, ran hard to the left. The result? The Conservative Party under David Cameron won its first outright majority in Parliament since 1992. Before the election, the former Labour prime minister Tony Blair warned his party against letting the election become one in which “a traditional left-wing party competes with a traditional right-wing party, with the traditional result.”

Mr. Clinton acted on a lesson Democrats learned the hard way, and moved his party more to the center on fiscal policy, welfare, crime, the culture and foreign policy. Progressive figures like Senator Elizabeth Warren and Mayor Bill de Blasio are the politicians who electrify the Democratic base.

For demographic reasons, many Democrats believe that they are riding a tide of presidential inevitability. They may want to rethink that. They are placing a very risky bet that there are virtually no limits to how far left they can go.

Peter Wehner, a senior fellow at the Ethics and Public Policy Center, served in the last three Republican administrations and is a contributing opinion writer.

http://www.nytimes.com/2015/05/27/opinion/have-democrats-pulled-too-far-left.html?ref=opinion&_r=1

Published on Clarion Project (http://www.clarionproject.org)

Home > US: Iran's Support for Terror Undiminished

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US: Iran's Support for Terror Undiminished

Despite the fact that Iran’s global terror activities were “undiminished” between 2013 and 2014, the U.S. State Department is still entirely committed to pursuing a nuclear deal with Iran.

“We think it’s essential that we pursue those negotiations,” said Tina Kaidanow, the State Department’s coordinator for counterterrorism, as quoted inThe Wall Street Journal. “None of that implies that we would be, again, in any way taking our eye off the ball with respect to what Iran is doing as a supporter of terrorism.”

Iran’s support for terror was documented in the State Dept.’s annual report on global terrorism, which was released Friday. The report says “Iran’s state sponsorship of terrorism worldwide remained undiminished,” which makes the State Dept. “very, very concerned,” according to Kaidanow. 

While the June 30 deadline for the deal is now fewer than 10 days away, the release of the report shows, “Iran continued to sponsor terrorist groups around the world," according to Kaidanow.  

The report specifically mentions Iran’s continued support for the Shiite terror organization Hezbollah in Lebanon as well as those fighting with embattled Syrian President Bashaar al-Assad.

The Clarion Project reported last week that Iran is supporting more than 100 terrorist organizations in Syria and Iraq alone.

In an interview with The Atlantic, U.S. President Barack Obamas admitted that some of the money freed up the deal’s proposed sanction relief may up going towards terrorism, although he argued that Iranian government would have to make good on their commitments to improve the country’s economy.

“I don’t think …anybody in this administration said that no money will go to the military as a consequence of sanctions relief,” Obama said. “The question is, if Iran has $150 billion parked outside the country, does the IRGC automatically get $150 billion? Does that $150 billion then translate by orders of magnitude into their capacity to project power throughout the region? And that is what we contest …”

The report also showed that between 2013 and 2014, there was a significant rise in global terror attacks, causing an increase in over 80 percent of violent deaths from the previous year (which itself had seen a 43 percent increase from the year before). In addition, the report showed:

• There was an average of 1,122 attacks per month
• Kidnappings increased by one-third, with more than with 9,400 people taken hostage
• The number of global attacks rose by 35 percent
• 32,727 people were killed worldwide (versus 17,800 in 2013)
• 34,700 people were injured in attacks in close to 95 countries
• In Iraq alone,  10,000 people died in 3,360 attacks representing close to a third of all people killed in terror attacks worldwide

Copyright © 2013 Clarion Project, Inc. All rights reserved.

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Source URL: http://www.clarionproject.org/news/irans-support-terror-undiminished-state-dept-report

Don's Tuesday Column

THE WAY I SEE IT   by Don Polson  Red Bluff Daily News   6/30/2015

     Our one-judge marriage tyranny

Many of you have received the so-called “Fire Tax” assessment in the mail. This resulted from an arguably illegal imposition of a “fee” on rural property owners for Cal Fire services. Tonight, State Board of Equalization member Jim Dahl will be the guest speaker at the Tehama County Tea Party Patriots to provide an update on that situation.

As the Supreme Court rendered its decisions, many aspects and perspectives can be easily lost on we, the “citizens,” lacking legal, constitutional sophistication. The decisions on the Patient Protection and Affordable Care Act (ACA or Obamacare, for short) and same sex marriage (also SSM or gay marriage) are far from the simplified themes found in news media coverage.

Soon after the decisions posted online, a multitude of opinion sources and links soon followed. The networks provided the least useful coverage of all, primarily cheerleading the circus-like parade of celebrating winners and advocates, with little analysis. I’m sure cable coverage followed form—Fox News being right-of-center, CNN being left-of-center and MSNBC (appropriate new home for former NBC anchor and serial fabulist, Brian Williams) occupying the left wing fringe.

Conservative talk radio provided a surprising array of opinions, as the essence of conservatism is the value accorded individual thought. The most informed and illuminating perspectives are found at National Review Online (nationalreview.com), Powerlineblog.com, The Weekly Standard (weeklystandard.com) and Realclearpolitics.com.

I found both decisions to border on preposterous. Widely circulated recordings of Jonathon Gruber, the ACA architect (a role first denied, now confirmed), revealed that Obamacare was formulated with incentives to place the maximum pressure on states to create their own Obamacare exchanges. The law repeatedly differentiates “the state” from the federal government, its bureaucracy, IRS or HHS; the latter have no exchange-creating permission. Gay marriage is a concept so utterly devoid of constitutional, historical or cultural rationalization that only intellectuals (or black-robed lawyers) could create a “right” out of legal thin air.

Here are some cogent, insightful bits of commentary (see donpolson.blogspot.com, “gay marriage” or “health care system,” links for many recent pieces): “In the matter of the so-called Affordable Care Act, the Supreme Court ruled that the law must not say what it in fact does say because it would be better if it were not to say what it says and were to say something else instead. In the matter of same-sex marriage, the Supreme Court rules that the law must say what it does not say because it would be better if it were to say what it does not say instead of what it says (Italics in original)…It does not matter what the law says or does not say—what matters is what they (the majority of justices)) want…

“The legendary constitutional scholar Barack Obama failed to notice, until the day before yesterday, that the Constitution mandates the legalization of homosexual marriage from sea to shining sea…(however) the Constitution does not say one word about marriage, much less about the state-level codification of homosexual couplings being a fundamental federal right…It is not there. It is a fiction…” (Kevin D. Williamson, nationalreview.com)

“From Justice Scalia’s dissent” (searchable by title at Powerlineblog.com), in the gay marriage case, we find profound insights. Stating, “today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes” together with civil, tax and inheritance consequences…such consequences have possible adverse social effects, “but no more adverse than the effects of many other controversial laws.

“So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

In “Judicial Activism from the Court on Marriage: Here’s How to Respond,” (searchable at nationalreview.com), Ryan T. Anderson adamantly urges restoring the constitutional authority to make marriage policy by citizens and elected officials, reflecting the truth about marriage.

“We the People must explain what marriage is, why marriage matters, and why redefining marriage is bad for society. For marriage policy to serve the common good, it must reflect the truth that marriage unites a man and a woman as husband and wife so that children will have both a mother and a father. Marriage is based on 1) the anthropological truth that men and woman are distinct and complementary, 2) the biological fact that reproduction depends on a man and a woman, and 3) the social reality that children deserve a mother and a father…Marriage isn’t just a private affair; marriage is a matter of public policy, because marriage is society’s best way to ensure the well-being of children.”

That says it all for me, folks.

A Greek Default Would Be a Valuable Lesson in Basic Economics

A Greek Default Would Be a Valuable Lesson in Basic Economics

By George Will 

Now come Greeks bearing the gift of confirmation that Margaret Thatcher was right about socialist governments: “They always run out of other people’s money.” Greece, from whose ancient playwrights Western drama descends, is in an absurdist melodrama about securing yet another cash infusion from international creditors. This would add another boulder to a mountain of debt almost twice the size of Greece’s gross domestic product. This protracted dispute will result in desirable carnage if Greece defaults, thereby becoming a constructively frightening example to all democracies doling out unsustainable, growth-suppressing entitlements.

In January, Greek voters gave power to the left-wing Syriza party, one third of which, The Economist reports, consists of “Maoists, Marxists and supporters of Che Guevara.” Prime Minister Alexis Tsipras, 40, a retired student radical, immediately denounced a European Union declaration criticizing Russia’s dismemberment of Ukraine. He chose only one Cabinet member with prior government experience — a leader of Greece’s Stalinist Communist party. Tsipras’s minister for culture and education says Greek education “should not be governed by the principle of excellence . . . it is a warped ambition.” Practicing what he preaches, he proposes abolishing university entrance exams.

RELATED: What’s Going on with Greece?

Voters chose Syriza because it promised to reverse reforms, particularly of pensions and labor laws, demanded by creditors, and to resist new demands for rationality. Tsipras immediately vowed to rehire 12,000 government employees. His shrillness increasing as his options contract, he says the European Union, the European Central Bank, and the International Monetary Fund are trying to “humiliate” Greece.

How could one humiliate a nation that chooses governments committed to Rumpelstiltskin economics, the belief that the straw of government largesse can be spun into the gold of national wealth? Tsipras’s approach to mollifying those who hold his nation’s fate in their hands is to say they must respect his “mandate” to resist them. He thinks Greek voters, by making delusional promises to themselves, obligate other European taxpayers to fund them. Tsipras, who says the creditors are “pillaging” Greece, is trying to pillage his local governments, which are resisting his extralegal demands that they send him their cash reserves.

RELATED: Greece, the Euro, and the People

Yanis Varoufakis, Greece’s finance minister, is an academic admirer of Nobel laureate John Nash, the Princeton genius depicted in the movie A Beautiful Mind, who recently died. Varoufakis is interested in Nash’s work on game theory, especially the theory of cooperative games in which two or more participants aim for a resolution better for all than would result absent cooperation. Varoufakis’s idea of cooperation is to accuse the creditors whose money Greece has been living on of “fiscal waterboarding.” Tsipras tells Greece’s creditors to read For Whom the Bell Tolls, Ernest Hemingway’s novel of the Spanish Civil War. His passive-aggressive message? “Play nicely or we will kill ourselves.”

Since joining the Eurozone in 2001, Greece has borrowed a sum 1.7 times its 2013 GDP.

Since joining the Eurozone in 2001, Greece has borrowed a sum 1.7 times its 2013 GDP. Its 25 percent unemployment (50 percent among young workers) results from a 25 percent shrinkage of GDP. It is a mendicant reduced to hoping to “extend and pretend” forever. But extending the bailout and pretending that creditors will someday be paid encourages other European socialists to contemplate shedding debts — other people’s money that is no longer fun.

Greece, with just 11 million people and 2 percent of the Eurozone’s GDP, is unlikely to cause a contagion by leaving the zone. If it also leaves the misbegotten European Union, this evidence of the EU’s mutability might encourage Britain’s “Euro-skeptics” when, later this year, that nation has a referendum on reclaiming national sovereignty by withdrawing from the EU. If Greece so cherishes its sovereignty that it bristles at conditions imposed by creditors, why is it in the EU, the perverse point of which is to “pool” nations’ sovereignties in order to dilute national consciousness?

RELATED: Mass Delusion among Greece’s Far Left

The EU has a flag no one salutes, an anthem no one sings, a president no one can name, a parliament whose powers subtract from those of national legislatures, a bureaucracy no one admires or controls, and rules of fiscal rectitude that no member is penalized for ignoring. It does, however, have in Greece a member whose difficulties are wonderfully didactic.

It cannot be said too often: There cannot be too many socialist smashups. The best of these punish reckless creditors whose lending enables socialists to live, for a while, off other people’s money. The world, which owes much to ancient Athens’s legacy, including the idea of democracy, is indebted to today’s Athens for the reminder that reality does not respect a democracy’s delusions.

— George Will is a Pulitzer Prize–winning syndicated columnist. © 2015 The Washington Post

http://www.nationalreview.com/article/420061/greece-default-socialism-doesnt-work

Judicial Activism from the Court on Marriage: Here’s How to Respond

Judicial Activism from the Court on Marriage: Here’s How to Respond

Fearlessly proclaim the truth about marriage and protect the rights of dissenters.

By Ryan T. Anderson 

Today is a significant setback for all Americans who believe in the Constitution, the rule of law, democratic self-government, or marriage as the union of one man and one woman. The Court got it wrong: It should not have mandated all 50 states to redefine marriage.

This is judicial activism. Nothing in the Constitution requires the redefinition of marriage, and the Court imposed its judgment about a policy matter that should have been decided by the American people and their elected representatives. The Court got marriage and the Constitution wrong today, just as they got abortion and the Constitution wrong 42 years ago with Roe v. Wade. Five unelected judges do not have the power to change the truth about marriage or the truth about the Constitution.

The Court summarized its ruling in this way — which highlights that they have redefined marriage, substituting their own opinion for that of the citizens:

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central mean­ing of the fundamental right to marry is now manifest.

Manifest to five unelected judges that is. Not to the majority of American citizens, who voted to define marriage correctly. As Chief Justice Roberts pointed out in dissent:

If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex mar­riage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the oppor­tunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

That’s exactly right. When it comes to the majority opinion, the Constitution “had nothing to do with it.”

We must work to restore the constitutional authority of citizens and their elected officials to make marriage policy that reflects the truth about marriage. We the People must explain what marriage is, why marriage matters, and why redefining marriage is bad for society.

For marriage policy to serve the common good, it must reflect the truth that marriage unites a man and a woman as husband and wife so that children will have both a mother and a father. Marriage is based on the anthropological truth that men and woman are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father.

The government is not in the marriage business because it’s a sucker for adult romance. No, marriage isn’t just a private affair; marriage is a matter of public policy, because marriage is society’s best way to ensure the well-being of children. State recognition of marriage acts as a powerful social norm that encourages men and women to commit to each other so they will take responsibility for any children that follow.

Marriage isn’t just a private affair; it’s a matter of public policy, because marriage is society’s best way to ensure the well-being of children.

Redefining marriage to make it a genderless institution fundamentally changes marriage: It makes the relationship more about the desires of adults than about the needs — or rights — of children. It teaches the lie that mothers and fathers are interchangeable.

Because the Court has inappropriately redefined marriage everywhere, there is urgent need for policy to ensure that the government never penalizes anyone for standing up for marriage. As discussed in my new book, Truth Overruled: The Future of Marriage and Religious Freedom, we must work to protect the freedom of speech, association, and religion of those who continue to abide by the truth of marriage as the union of man and woman.

At the federal level, the First Amendment Defense Act is a good place to start. It says that the federal government may not discriminate against people and institutions that speak and act according to their belief that marriage is a union of one man and one woman. States need similar policies.

Recognizing the truth about marriage is good public policy. Today’s decision is a significant setback to achieving that goal. We must work to reverse it and recommit ourselves to building a strong marriage culture because so much of our future depends upon it.

— Ryan T. Anderson is the William E. Simon Fellow at the Heritage Foundation and the editor of Public Discourse and author of the forthcoming book Truth Overruled: The Future of Marriage and Religious Freedom. Follow him on Twitter @RyanTAnd.

http://www.nationalreview.com/article/420397/gay-marriage-decision-conservative-response-ryan-t-anderson

IN HOUSING CASE, JUSTICE KENNEDY’S EYES ARE WIDE SHUT

IN HOUSING CASE, JUSTICE KENNEDY’S EYES ARE WIDE SHUT

 BY PAUL MIRENGOFF IN RACE AND RACIAL BIAS, RACIAL PREFERENCES, REGIONALISM, SUPREME COURT

I wrote here about yesterday’s decision by the Supreme Court in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. By a 5-4 vote, with Justice Kennedy writing for the majority, the Court held that the Fair Housing Act allows lawsuits based on disparate impact.

Usually in a case like this, it is the dissent that warns of the dire consequences that may well flow from the majority’s decision. In this case, however, both the dissent and the majority warn of them.

Let’s begin with Justice Alito’s superb dissent. It begins:

No one wants to live in a rat’s nest. Yet in Gallagher v. Magner, 619 F. 3d 823 (2010), a case that we agreed to review several Terms ago, the Eighth Circuit held that the Fair Housing Act (or FHA) could
be used to attack St. Paul, Minnesota’s efforts to combat “rodent infestation” and other violations of the city’s housing code. The court agreed that there was no basis to “infer discriminatory intent” on the part of St. Paul.

Even so, it concluded that the city’s “aggressive enforcement of the Housing Code” was actionable
because making landlords respond to “rodent infestation, missing dead-bolt locks, inadequate sanitation facilities, inadequate heat, inoperable smoke detectors, broken or missing doors,” and the like increased the price of rent. Since minorities were statistically more likely to fall into “the bottom bracket for household adjusted median family income,” they were disproportionately affected by those rent increases, i.e., there was a “disparate impact.” Id., at 834.

The upshot was that even St. Paul’s good-faith attempt to ensure minimally acceptable housing for its poorest residents could not ward off a disparate impact lawsuit.

Today, the Court embraces the same theory that drove the decision in Magner. This is a serious mistake. The Fair Housing Act does not create disparate-impact liability, nor do this Court’s precedents. And today’s decision will have unfortunate consequences for local government,
private enterprise, and those living in poverty. Something has gone badly awry when a city can’t even make slumlords kill rats without fear of a lawsuit.

It is not just the St. Paul case that demonstrates the absurd consequences that stem from applying disparate impact theory to housing cases. The absurdity is also lurking in the Texas case itself. As Justice Alito explained:

The Texas Department of Housing and Community Affairs (the Department) has only so many tax credits to distribute. If it gives credits for housing in lower income areas, many families—including many minority families—will obtain better housing. That is a good thing.

But if the Department gives credits for housing in higher income areas, some of those families will be able to afford to move into more desirable neighborhoods. That is also a good thing.

Either path, however, might trigger a disparate-impact suit.

This is not mere speculation. Here, one respondent has sued the Department for not allocating enough credits to higher income areas. But another respondent argues that giving credits to wealthy neighborhoods violates “the moral imperative to improve the substandard and inadequate affordable housing in many of our inner cities.”

This latter argument has special force because a city can build more housing where property is least expensive, thus benefiting more people. In fact, federal law often favors projects that revitalize low-income communities.

No matter what the Department decides, one of these respondents will be able to bring a disparate-impact case. And if the Department opts to compromise by dividing the credits, both respondents might be able to sue. Congress surely did not mean to put local governments in such a position.

Far from disputing that the Court’s ruling creates potential for mischief, Justice Kennedy and the four liberals who joined his opinion agree. Kennedy described this potential at some length. He even called Alito’s dissent “well-stated.”

Indeed, Kennedy homed in on the biggest danger his decision will create — quotas:

Without adequate safeguards at the prima facie stage, disparate-impact liability might cause race to be used and considered in a pervasive way and “would almost inexorably lead” governmental or
private entities to use “numerical quotas,” and serious constitutional questions then could arise.

The litigation at issue here provides an example. From the standpoint of determining advantage or disadvantage to racial minorities, it seems difficult to say as a general matter that a decision to build low-income housing in a blighted inner-city neighborhood instead of a suburb is discriminatory, or vice versa.

If those sorts of judgments are subject to challenge without adequate safeguards, then there is a danger that potential defendants may adopt racial quotas—a circumstance that itself raises serious constitutional concerns.

Kennedy also recognized the potential for abuse and coercion inherent in permitting disparate impact suits in the housing context:

The limitations on disparate-impact liability discussed here are also necessary to protect potential defendants against abusive disparate-impact claims. If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income
individuals, then the FHA would have undermined its own purpose as well as the free-market system.

The potential for abuse and coercion goes well beyond discouraging developers from constructing and renovating units. The threat of disparate impact suits is a major tool in the left’s drive to impose its “regionalist” agenda (Affirmatively Furthering Fair Housing), whereby the federal government uses its powers to force the creation of communities of a certain kind, each having what the feds deem an appropriate mix of economic, racial, and ethnic diversity.

The big question, of course, is whether Justice Kennedy’s “limitations on disparate impact liability” will actually constrain liberal judges. In my view, the question answers itself; they will not.

The main “limitations” Kennedy relies on are those that apply in disparate impact challenges to employment practices. In these cases, the employer can prevail by showing that the challenged practice is justified by “business necessary” or “job relatedness.”

These limitations have not been a raging success. Many an employer has abandoned or modified perfectly good, non-discriminatory selection devices in order to avoid being sued.

Moreover, as Justice Alito explained:

The business-necessity defense is complicated enough in employment cases; what it means when plopped into the housing context is anybody’s guess. What is the FHA analogue of “job related”? Is it “housing related”? But a vast array of municipal decisions affect property values and thus relate (at least indirectly) to housing.

And what is the FHA analogue of “business necessity”? “Housing-policy necessity”? What does that mean?

Justice Kennedy also tried to ward off bad consequences by stating, plaintively, that “governmental entities . . . must not be prevented from achieving legitimate objectives, such as ensuring compliance with health and safety codes.” Justice Alito responded:

[W]hat does the Court mean by a “legitimate” objective? And does the Court mean to say that there can be no disparate impact lawsuit if the objective is “legitimate”?

That is certainly not the view of the Government, which takes the position that a disparate-impact claim may be brought to challenge actions taken with such worthy objectives as improving housing in poor neighborhoods and making financially sound lending decisions.

I doubt that it’s the view of the four liberals who joined with Justice Kennedy, either.

Whether he knows it or not, Justice Kennedy has set the stage for an enormous power grab by the Department of Housing and Urban Development, as it prepares to impose the left’s vision of how we should live. This is clear from HUDs regulations which provide a defense against disparate-impact liability if a defendant can show that its actions serve “substantial, legitimate, nondiscriminatory interests” that “necessar[ily]” cannot be met by “another practice that has a less discriminatory effect.”

Few things are “necessarily” true. A standard that uses epistemology to place a near impossible burden of proof on defendants is not a limiting principle.

As Justice Alito wrote:

The effect of these regulations, not surprisingly, is to confer enormous discretion on HUD—without actually solving the problem.

What is a “substantial” interest? Is there a difference between a “legitimate” interest and a “nondiscriminatory” interest? To what degree must an interest be met for a practice to be “necessary”?
How are parties and courts to measure “discriminatory effect”?

In the film “Petrified Forest,” Duke Mantee, played by Humphrey Bogart, says of the Leslie Howard character, “I guess we’re all a lot of saps, but I wouldn’t be surprised if he was the champion.”

I wouldn’t be surprised if Justice Kennedy were the champion sap of our generation of jurists.

http://www.powerlineblog.com/archives/2015/06/in-housing-case-justice-kennedys-eyes-are-wide-shut.php

The Left Strikes a Blow against Military Commissions

The Left Strikes a Blow against Military Commissions

By Andrew C. McCarthy

Killing off military commissions has been an obsession of the Lawyer Left for over a dozen years. It may, at long last, be “Mission Accomplished” thanks to last week’s ruling by a deeply divided federal appeals court.

In al-Bahlul v. United States, a three-judge panel of the D.C. Circuit threw out the terrorism conspiracy conviction of Osama bin Laden’s personal aide and propaganda director, an al-Qaeda jihadist who bragged about his Goebbels-like role in the killing of nearly 3,000 Americans on September 11, 2001.

The court, nearly a year ago, had already thrown out Suliman al-Bahlul’s other convictions for providing material support to terrorism and soliciting terrorism against the United States. Sitting en banc on that occasion, the Circuit’s seven judges ruled that al-Bahlul had an American constitutional rightagainst prosecution on ex post facto crimes. These findings, consistent with recent Circuit precedent, were a remarkable measure of the Lawyer Left’s progress in expanding judicial protections for America’s enemies given that (a) the jihadist is a Yemeni whose only connection to our nation and its Constitution is to make war against them, and (b) congressional statutes criminalizing material support and solicitation of violence long predated al-Bahlul’s commission of those offenses.

Now, al-Bahlul’s remaining conviction for the al-Qaeda mass-murder conspiracy — a conspiracy the panel majority studiously describes as “inchoate,” though it doubtless seemed definitive enough to the terror network’s thousands of victims — has been nullified on a similarly strained rationale. Judges Judith W. Rogers and David S. Tatel, Clinton appointees both, claim that a conspiracy prosecution in the framework of a military commission — an executive branch (or Article I) tribunal — violates the Constitution’s vesting of judicial power in the Article III civilian federal courts.

Of course, the handling of alien enemy combatants in wartime — as opposed to American criminal defendants in peacetime — has long been a constitutional prerogative of the commander-in-chief, not the courts. Moreover, as the majority judges concede, Congress expressly approved the commissions and vested them with authority to try conspiracy offenses.

Judges Rogers and Tatel nevertheless contend that because “inchoate conspiracy” has not traditionally been a crime under the law of war, Congress is impotent to permit conspiracy trials by military commissions. Thus does the majority elevate the theorizing of international law scholars over the legislative act of the people’s representatives, notwithstanding that the Constitution makes Congress supreme in both defining federal offenses and delineating the jurisdiction of the federal courts.

The majority’s rationale is ably rebutted in an 85-page dissent by Judge Karen LeCraft Henderson, a George H. W. Bush appointee. Judge Henderson is duly taken aback by the court’s arrogance in undermining wartime national-security decisions, a subject the Constitution commits to the judgment of the political branches, and one on which judges have scant institutional competence. At the Supreme Court’s urging, the president and Congress had come together on a system for trying enemy combatants. From a constitutional standpoint, therefore, the military-commissions system they enacted was owed maximum judicial deference.

Furthermore, as Judge Henderson details, al-Bahlul did not even object to being tried on the conspiracy offense. Indeed, he contemptuously refused to participate in a proceeding governed by American law rather than Allah’s sharia dictates. He thus waived any right he may have had to complain about it on appeal — at best, his belated claim should have been rejected under the rigorous “plain error” standard of review (which permits the correction only of actual errors that are significant, obvious – i.e., not subject to reasonable dispute – and seriously compromise the fairness, integrity or public reputation of judicial proceedings).

Yet, the majority brushed these daunting impediments aside, hell-bent on returning the nation to the Clinton-era paradigm of international terrorism as the province of civilian prosecution — in which foreign enemy jihadists are endowed with the majestic due process safeguards the Constitution vouchsafes for the American citizens they plot to kill. Judge Henderson lamented the majority’s hubris:

The immediate consequences of today’s decision are serious enough: my colleagues bar the Government from employing military commissions to try individuals who conspire to commit war crimes against the United States. But the consequences moving forward may prove more alarming still. My colleagues’ opinion means that, in future conflicts, the Government cannot use military commissions to try enemy combatants for any law-of-war offense the international community has not element-by-element condoned.

Yes, the “international community”: America’s national defense is to be determined not by the sovereign choices of our elected representatives but by non-Americans, including regimes hostile to our interests — some aiding and abetting our jihadist enemies.

The feckless anti-terrorism framework designed by Bill Clinton was not abandoned on a whim. It took eight years of the enemy’s bombs being answered by Justice Department subpoenas, eight years during which the jihad became increasingly audacious. After 9/11, the nation decided it was time to regard our enemies as . . . enemies, not common criminals.

Civilian prosecution was not mothballed. To the contrary, it has remained an essential domestic counterterrorism component. Our war-footing, however, complemented it with armed-combat protocols. This filled the huge vulnerability in our defenses: unleashing our troops to go with their peerless effectiveness to overseas jihadist safe havens, where the jurisdiction of the FBI and the writ of American judges does not run. The laws of war, as invoked and interpreted by the political branches the Constitution makes responsible for warfare, enabled our security services to detain enemy operatives without trial, collect precious intelligence from interrogations and seizures, and administer military justice to our enemies without exposing intelligence files to the liberal discovery rules of civilian due process.

The empowerment of America’s enemies was an unintended consequence of President Clinton’s misguided counterterrorism approach. He sought to make an example of how efficiently and severely our justice system could deal with the most heinous offenders; he succeeded, however, in illustrating the folly of using domestic law-enforcement rules to confront international terror networks backed by hostile nation-states and other deep-pocketed foreign sponsors.

Alas, what was a Clinton bug is an Obama feature. In the incumbent administration, many of whose lawyers volunteered their services to terrorist combatants while in private practice, empowering such American enemies as Iran and the Taliban is a purposeful strategy: a calculation that this will induce them to be enemies no more, that somehow jihadist regimes will align with the Westerners they despise against the jihadist groups whose sharia supremacism they share – all to promote the Great Satan’s conception of “stability.”

With the D.C. Circuit’s help, Obama has turned the counterterrorism clock back to Clinton time, with who better than Hillary next in line to preside. Noting the Islamic State’s gathering strength and unspeakable atrocities, Judge Henderson ruefully observed, “The timing could not be worse.”

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.

http://www.nationalreview.com/article/420066/military-commissions-al-bahlul-united-states