Tuesday, June 30, 2015


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.

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.


US: Iran's Support for Terror Undiminished

US: Iran's Support for Terror Undiminished

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.

Monday, June 29, 2015

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 

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 


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.

The Left Strikes a Blow against Military Commissions

The Left Strikes a Blow against Military Commissions
By Andrew C. McCarthy