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Grimes Strikes Out on Whether She Would Support WH Border Proposal


​Alison Lundergan Grimes either completely deflected on whether she would support the White House’s request for supplemental funding to address the border, or she appears to not realize the difference between that proposal and the Senate’s immigration bill in a recent appearance.

The Kentucky Democratic senate candidate was caught on camera failing to provide an answer about the $3.7 billion request on at least four occasions. In her first answer, she criticized Mitch McConnell for not voting for last year’s immigration bill. She was then asked a second time about the president’s request.

“I’m going to assess everything when I’m in the United States senate in light of is it good for Kentucky,” Grimes replied.

“Is this good for Kentucky?” a reporter asked.

“In terms of immigration reform, I think it is an earned pathway to citizenship and a secure border is much needed, not just for Kentucky, but for the entire nation,” she said.

“What about the supplemental that the president is asking for now? Would you support it?” another reporter asked.

“Again, the bill that came out of the senate, I strongly support it, and I will continue to monitor the legislation that is before Congress, ” she said, before blaming McConnell again.

Boehner to Sue Obama over Employer-Mandate Delay


The House of Representatives will pass a resolution authorizing itself to sue President Obama, and will then file suit against the president over his delay of the implementation of the Affordable Care Act’s employer mandate, Speaker John Boehner announced Thursday afternoon. A statement from the speaker’s office explains:

In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it.  That’s not the way our system of government was designed to work.  No president should have the power to make laws on his or her own.

As I’ve said, this isn’t about Republicans versus Democrats; it’s about the Legislative Branch versus the Executive Branch, and above all protecting the Constitution.  The Constitution states that the president must faithfully execute the laws, and spells out that only the Legislative Branch has the power to legislate.  The current president believes he has the power to make his own laws – at times even boasting about it.  He has said that if Congress won’t make the laws he wants, he’ll go ahead and make them himself, and in the case of the employer mandate in his health care law, that’s exactly what he did.

The resolution is here.

Last summer, President Obama announced that the employer mandate — the requirement that employers with over 50 workers must offer affordable insurance — would be delayed one year, when it had been scheduled to be implemented in 2014. Now it will apply to businesses with 100 or more employees starting in 2015, and to firms with more than 50 employees starting in 2016.


Trump: Illegal Immigrants Are Getting Treated Better than Vets


The thousands of unaccompanied immigrant children are being treated better than American veterans and a Marine stuck in Mexico, Donald Trump said on Laura Ingraham’s radio show.

“You know, the only one we can’t get back into the country is our Marine,” Trump said on Thursday, referring to U.S. Marine reservist Andrew Tahmooressi, who mistakenly crossed in to Mexico with firearms and is being held there by the Mexican government. “I mean, everyone else is flowing in from Mexico and the Marine is stuck in prison.”

Additionally, needy veterans continue to suffer from through the widespread mismanagement at the Department of Veterans Affairs, he said, “but I guarantee we’ll take care of these [immigrants] if they come.”

Trump warned of the consequences of allowing recently arrived illegal-immigrant children to stay in the country while top-notch students from other countries are denied entrance to the U.S. or must go through the legal process.

“This influx is killing the country,” he said. “It’s killing the country.”

Web Briefing: July 11, 2014

1215 and All That


Given that I don’t think that David Cameron has much of a chance of hanging on to his job after the general election next year, there’s a sense in which spending too much time discussing his thoroughly implausible “renegotiation” of Britain’s role within the EU is a pointless exercise. Then again, as the implausibility of this much-vaunted renegotiation may well play a not insignificant part in his defeat (by helping ensure that enough former Tories stay with UKIP) it’s worth understanding why no one should take Cameron’s claims very seriously.

The most important reason is that the very essence of the EU is that once a competence has been transferred to Brussels it becomes part of, to use the shorthand, the “acquis communautaire,” and cannot be handed back. To persuade every other EU nation to agree (because that’s what it would take) to somehow exempt the U.K. in any significant way from this would truly be a mission impossible.

And even if it were not, there is no reason to think that Mr. Cameron has the inclination, the toughness, or the attention to detail necessary to see it through.

A case in point is the European Arrest Warrant.

Writing in the Daily Telegraph, Conservative MP Douglas Carswell explains:

Ministers might like to talk Eurosceptic, but officials seem to be carrying on as before. Consider the decision, debated in Parliament today, to opt back into giving the European Commission and Court of Justice oversight over dozens of policing, justice and home affairs measures in the UK. Europol – the nascent pan European police force – will be given a greater role. Customs officials around the EU will cooperate more. The European Arrest Warrant (EAW) will mean that people in this country will continue to face arrest and extradition, without a British court being required to see if there is proper evidence against them.

European Arrest Warrants have, of course, been with us for a decade. Yet thanks to how the Lisbon Treaty was drafted, the UK government needs to sign us up again to the system. For all the talk of change in our relations with Europe, it has chosen to do so.

Why? If you listen to the Home Office, the EAW has been a vital weapon in the fight against terror. The 7/7 bombers, they like to remind us, were extradited from Italy under an EAW.

But are we to seriously believe that had there not been an EAW, the 7/7 bombers would still be in Italy? Of course, not. It is perfectly possible to extradite people against whom there is clear evidence without an EAW. Each week, over a dozen Brits are arrested in the UK because they are subject to EAWs issued elsewhere. What percentage of these are terror suspects? 1 per cent? Half of one per cent? A minuscule fraction of those extradited under the EAW have been terror suspects, and I doubt a single one of them could not have been extradited without an EAW.

One of my constituents – let’s call him Mr Essex – faces extradition to France under an EAW and certainly isn’t a terror suspect. Instead, he has been accused to tax evasion because someone using his name and identity has not been paying taxes in France as they should have. Or so he says. I am all in favour of suspects being extradited from one jurisdiction to another. But only if a prosecutor in one can show a court that there is at least some credible evidence against them.

That basic due process would allow my constituent the opportunity to tell the court a couple of things in his defence. Like that he did not, apparently, have a passport at the time of the alleged crime, so could not have been in France. Or like the fact that he has only ever set foot in France once before, on a day trip to Calais. Thanks to the EAW, there is no need for anything quite so tiresome. The French prosecutors simply fill in an application form, and the British police have to nab him. No British court can stop the process. Off he must go.

Is this really what we want?

The answer, of course, is no. By signing off on this, the British government would not only be walking away from its fundamental responsibility to its own people, but it would also be handing UKIP a very big stick with which to beat the Tories at election time. If Cameron cannot get something fairly simple like this right, can he be trusted to handle a renegotiation that will actually mean something? The answer is, again, no.

And here, also via the Daily Telegraph, is another part of the Cameron legacy in the making (my emphasis added):

British tax authorities have been accused of attempting to ride roughshod over Magna Carta in pursuit of new powers that will allow them to raid the bank accounts of those who fail to pay their dues. MPs on the Treasury Select Committee said they were “horrified” by the proposals which HM Revenue & Customs (HMRC) says it needs to recover tax from 17,000 “recalcitrant debtors”.

Lin Homer, chief executive of HMRC, insisted that the powers would only be used in extreme circumstances and would never leave taxpayers short of “enough money to live.” However, she caused alarm by explaining that HMRC would be able to judge whether a debtor could afford to pay up because they would have access to 12 months of the target’s personal spending habits. The proposals are currently out for consultation until the end of July.

In a marathon session lasting more than three hours, John Thurso, Liberal Democrat member of the Committee, said HMRC was asking for power to over-ride Magna Carta which sought to protect citizens’ rights from plundering kings 800 years ago. “We are talking about the ability of one organ of the state to have the unique right to go against the Magna Carta charter and go in and seize – without judicial process or review – a bank account,” he said.  Steve Baker, Tory MP for Wycombe, told Ms Homer that HMRC was pleading “necessity” for new powers when in fact it was just “frustrated with a small number” of taxpayers. He said it reminded him of William Pitt’s famous view. The former prime minster said that “necessity is the plea for every infringement of human freedom.”

And yes, this is another gift to UKIP too.


Felon, Former Black Panther Party Leader Hosts Fundraiser for Democratic Senate Candidate Michelle Nunn


The suggested contribution amounts for entry to a Capitol Hill fundraiser held Tuesday evening for Democratic Senate candidate Michelle Nunn rose to $2,600 a head. The special guest advertised on the invitation was former Democratic senator Sam Nunn, the candidate’s father, who represented Georgia in Washington for over two decades.

There was another guest, however, who probably turned more heads. Among the co-hosts of the of the event was Virtual Murrell, an early leader of the Black Panther Party during its militant phase and later a political consultant who, in the mid 1990s, spent time in jail for using his perch in city government to extort local businesses.

“Our campaign was unaware of Mr. Murrell’s criminal history and disagrees with his comments,” Nunn communications director Nathan Click tells National Review Online. As a member of the Black Panther Party, Murrell embraced the organization’s racially incendiary platform, calling the United States government racist and threatening to retaliate against the police and the military “by whatever means necessary.”

In a year that has shaped up as a promising one for Republicans, Democrats have rallied around Nunn’s candidacy. She is not only a political legacy, but also has some bipartisan credibility in a state that favors the GOP: She is the former CEO of George H. W. Bush’s Points of Light Foundation, the nonprofit organization he founded to spearhead his charitable activities. Furthermore, Nunn faces a still-fractured Republican field. While Democrats have united behind Nunn, the GOP won’t have a candidate until after a July 22 runoff between businessman David Perdue and Republican congressman Jack Kingston.

Nunn has looked to be the strongest challenger of 2014 midterm cycle, but the sloppiness of a campaign operation that sent her off to fundraise with an ex-felon may cause Democrats to start asking questions: for starters, whether the rookie candidate and her team can get through a competitive battle this fall without further slip-ups.

They will have to start by strengthening their vetting operation.

Murrell was indicted in 1994 by a federal grand jury on charges that he solicited and received over $37,000 in bribes from businesses in San Francisco while serving as an aide to an Oakland city councilman. The indictment found him guilty of violating the Hobbs Act, a federal statute that prohibits elected and appointed officials from using their public positions for personal gain. Murrell pleaded guilty and, in 1995, was sentenced to a year in prison.

His brush with the law was not his first time in the spotlight. In the late 1960s, as distribution manager for the Blank Panthers, Murrell was a vocal proponent of the party’s ten-point platform. Archival news footage from the local San Francisco station KRON-TV shows him arguing, on the eve of his draft date in 1968, that African Americans should be exempt from military service because blacks are “victimized by the white racist government of America.”

“I’m due to report for induction tomorrow morning for the purposes of being drafted into the United States Army,” Murrell says. “If this racist, ethnocentric, imperialistic dog forces me to go, I have no other choice other than to sabotage your arsenal and to arm black people to use [arms] against this racist power structure to defend themselves.”

Nunn is not the first candidate who has had to distance herself from Murrell after her association with him became public.

In 1994, the Oakland mayoral candidate Ted Dang appeared and delivered a speech at a fundraiser to help cover Murrell’s legal expenses. When the news became public, he claimed to have stumbled on the event by accident.

Abbas Has a Genocide Problem, but It’s Not Israeli Retaliation


When Israel launched a retaliatory attack against Hamas targets in Gaza, killing about 50 people, Palestinian leader Mahmoud Abbas described the attack as “genocide against the Palestinian people.” The comment prompted swift denunciation by the Anti-Defamation League.

It’s not hard to see why.

The word “genocide” came about because no existing vocabulary could describe the crime perpetrated by the Nazi during the holocaust. Raphael Lemkin, a Jewish lawyer of Polish nationality, coined the word in 1944 and used it in the Nuremburg trials. It means the deliberate, systematic extermination of an entire race of people.

Moral philosophers disagree as to whether genocide is morally worse than indiscriminate mass murder on the same scale, just as they disagree over whether hate crimes targeting marginalized groups are categorically worse than indiscriminate murders. However that debate is decided, the word clearly should be reserved for murder carried out on a horrifying scale.

By using the word “genocide” to describe a few scores of deaths of a defensive military campaign, Abbas dilutes the significance of the word, trivializing the Holocaust and the suffering of those it victimized. Compare using the word “rape” to describe an unwelcome sexual advance of a purely verbal nature.

Nor is this the first time Abbas has made a dubious statement on the subject of genocide. His doctoral dissertation claimed that only about 890,000 Jews were killed in the Holocaust. He also laid much of the blame on Zionists who collaborated with the Nazis in order to encourage Jewish immigration to Palestine. The New York Times reported that Abbas had shifted in his position on the Holocaust when he denounced it “the most heinous crime of the modern era,” but the Jewish publication Tablet noted that he never repudiated his claim about Jewish responsibility.

Now Abbas is partnered with Hamas, whose 1988 charter looks forward to future, divinely aided killing of Jews:

Hamas has been looking forward to implement Allah’s promise whatever time it might take. The prophet, prayer and peace be upon him, said: The time will not come until Muslims will fight the Jews (and kill them); until the Jews hide behind rocks and trees, which will cry: O Muslim! there is a Jew hiding behind me, come on and kill him! This will not apply to the Gharqad, which is a Jewish tree (cited by Bukhari and Muslim).

One must admit that, by Hamas standards, the exception for the Jewish tree is pretty considerate.

By calling the Israeli response “genocide” Abbas doing more than misstating facts. He is using moral outrage over the Holocaust as a tool to bring about what could turn into a real genocide, worthy of the name.

End of Civilization Part 4 Trillion


Wow, this is depressing:

Jada, a 16-year-old junior in Houston, claims she was drugged and raped at a high school party after accepting a drink from a friend of a friend.

But as truly disturbing as those allegations are, the aftermath is almost worse: Photos and videos of the assault circled on social media. Jada’s accused rapist mocked her repeatedly on Twitter. And at some point in the whole soulless spectacle, a meme was born: It’s called #jadapose — and it consists of lying prone and half-clothed on the floor.

Per Topsy, a Twitter analytics tool, the hashtag has been used 3,000 times since it was coined Tuesday night, apparently in response to the 11 p.m. local news broadcast on which Jada went public.

Follow the link for all the ugly details. 

Obamacare the Law vs. Obamacare the Cause


Missouri Governor Vetoes Bill Establishing Background Checks for Obamacare Navigators


Missouri’s legislature passed a bill that would have established higher standards for Obamacare navigators, but Gov. Jay Nixon vetoed it on a technicality earlier this week.

CBS St. Louis reports:

The vetoed bill would have required criminal background checks for people applying for state licenses as enrollment aides for a federally run health insurance website. Anyone with past convictions involving fraud or dishonesty would have been barred from the jobs.

… The vetoed Missouri measure mirrored model legislation produced by the American Legislative Exchange Council, an organization of conservative lawmakers and businesses that has opposed Obama’s health care law.

The organization’s website includes a draft bill requiring applicants to submit fingerprints for background checks in compliance with state laws and federal “Public Law 92-554.” The Missouri bill used that same reference to federal law.

But the federal law that is cited deals with alcohol abuse and prevention, Nixon said. The Democratic governor said the appropriate reference would have been to Public Law 92-544, which deals with federal criminal records.

Nixon, a Democrat, called that a “glaring defect” and “a significant drafting error” deserving of a veto.

… This marked the second consecutive year that Missouri lawmakers have attempted to set standards for the insurance guides. Last year, Nixon signed a bill requiring state licensure for the health insurance enrollment aides.

But U.S. District Judge Ortrie Smith issued a preliminary injunction against it in January, saying it “constitutes an impermissible obstacle” to the federal law and thus was pre-empted by it under the supremacy clause of the U.S. Constitution. Missouri Attorney General Chris Koster, a Democrat, has appealed that decision.

That’s an unfortunate development for Missouri residents. While it’s definitely in society’s best interest to ensure former criminals have opportunities in the legitimate job sector, the federal government is compelling Americans to buy health coverage, so consumers deserve to know that their privacy is being sufficiently protected.

And there’s high black-market demand for purloined health information in particular: Politico recently reported that “while a stolen credit card or Social Security number fetches $1 or less on the black market, a person’s medical information can yield hundreds of times more.”

With that in mind, it makes sense to ensure that practiced criminals—particularly those with hard criminal skills in fraud, forgery and other financial crimes—aren’t receiving consumers’ most sensitive personal information.

Lawmakers in Missouri can and should try again to pass a bill to strengthen screening for navigators. Perhaps third time will be the charm.

— Jillian Kay Melchior is a Thomas L. Rhodes Fellow for the Franklin Center for Government and Public Integrity. She is also a Senior Fellow at the Independent Women’s Forum.

‘Obama’s “Man-Caused” Disaster’


Here’s my column about the border crisis in Politico today:

As a defender of the nation’s borders, President Barack Obama is a hell of a pool player.

The president enjoyed a game at a bar in Denver with Colorado Gov. John Hickenlooper on Tuesday, without the noir atmosphere of his furtive visits to pool halls with his grandfather as a kid, when he felt “the enticement of darkness and the click of the cue ball, and the jukebox flashing its red and green lights.”

Obama’s game the other day was bright and cheery, as one would expect of a president who didn’t have any depressing visits to frightened ranchers, overwhelmed border agents or desperate migrants on his future itinerary.

Judge: IRS Must Declare under Oath What Happened to Lerner’s E-mails


Judge Emmet Sullivan, in this morning’s status conference hearing between watchdog group Judicial Watch and Department of Justice attorneys for the IRS, took what Judicial Watch president Tom Fitton calls “an extraordinary step” in the battle over recovering the records of top IRS official Lois Lerner: The IRS must file a declaration under oath regarding the missing Lerner e-mails by August 10. Meanwhile, attorneys from both sides will meet, under the supervision of magistrate judge John M. Facciola, to discuss alternate methods of recovering e-mails allegedly lost in Lois Lerner’s 2011 hard-drive crash.

In 2013, Judicial Watch filed a Freedom of Information Act request for e-mails to and from Lerner, the former head of the IRS’s tax-exempt division. The organization claims that the IRS never informed them of Lerner’s computer crash, in violation of the law. Judicial Watch learned about the two years of missing e-mails from the media. In Washington D.C.’s District Court this morning, they requested limited discovery powers, under which the court would allow the watchdog group to investigate the process by which the IRS has tried to fulfill its FOIA request — a process that Judicial Watch says has, by all indications, been inadequate. While the court did not grant them discovery, the next steps will hopefully show clearly, Judge Sullivan said in his ruling, whether discovery is needed.

Judicial Watch’s attorneys report that they were surprised to learn in open court today facts previously withheld. Counsel for the IRS claims the tax service has collected more than 20,000 e-mails to and from Lerner, a number Judicial Watch says was withheld from them in a conversation with IRS counsel earlier this week. Additionally, the IRS says an investigation into the hard drive is under way courtesy of the Treasury inspector general for tax affairs, but it cannot disclose the progress of that investigation.

Following the court’s decision, Fitton said at a press conference that he is encouraged that the court was willing to recommend procedures that are rare in FOIA lawsuits. But he said much more is needed. IRS officials have related to Fitton news of thousands of computer crashes at the IRS just this year, which indicates a potential “massive record loss” — but, said Fitton, “there seems to be little or no interest from the IRS” in looking into the matter. The organization’s disregard for the law and legal ethics, he added, indicates that they have “something to hide.”

Tomorrow, True the Vote will be in D.C.’s district court. The voter-fraud watchdog filed suit against the IRS over its application for tax-exempt status. Judge Reggie Walton will hear True the Vote’s motion to allow an outside expert to examine the Lerner hard drives to determine whether her e-mails are irrecoverable, as the IRS claims. 

Goldberg: Obama Played ‘Political Games’ with Immigration Policy


Light at Noon


Six blocks up from NR headquarters in New York is the Cuban mission to the U.N. Our publisher, Jack Fowler, has passed the mission many, many times in his walks to and from the train station. He has been known to give it a digital salute. I have been known to give the same salute.

At noon today, democracy activists gathered across from the mission to mark the 20th anniversary of the Tugboat Massacre. This was the atrocity in which the Castro dictatorship murdered 37 men, women, and children as they attempted to flee the island.

Not only will totalitarian dictatorships prevent you from living freely in your own country; they prevent you from fleeing to another. In this sense, they are slaveholders and hostage-takers. When assessing a dictatorship, I often ask, “Does it allow people to leave?” The first freedom, in a way, should be the freedom to vote with your feet: to leave, if you don’t like the way things are going at home. The worst dictatorships prevent this.

I will quote a press release of the Human Rights Foundation on the Tugboat Massacre:

On July 13, 1994, Cuban coast guard vessels were deployed in pursuit of the 13 de Marzo tugboat after state security forces learned of the massive attempt to escape the island. Acting on direct orders from the government, state agents chased and intercepted the boat, which carried 72 men, women, and children, seven miles from the Havana harbor. The Cuban agents had no intention of returning the boat to land; instead, they first used high-pressure water hoses to sweep the boat’s occupants off the deck, and then rammed the boat repeatedly until it collapsed and sank. 37 Cuban citizens, mostly women and children, drowned as a result. As the result of a decision made by the Cuban government, no attempt was made to recover the bodies.

The activists who gathered at noon today were from HRF, based here in New York, and the Directorio Democrático Cubano, based in Miami. NR and NRO readers are well familiar with those organizations. They are “points of light,” as the first Bush might say. The activists held pictures of the dead — the victims of the massacre. (For a picture of the demonstration itself, go here.) Janisset Rivero, of the Directorio, called the roll. That is, she read the names of the dead, and gave their ages, too. After each name was read, the group said, “Presente,” meaning “Present,” or “Here.” They said this directly to the dictatorial outpost across the street.

It seemed so little, in the face of this vicious, long-lived, and excused dictatorship. But it was something, and better than nothing.

Fidel Castro, I believe, is the most popular dictator in the democratic world. Stalin lost his luster after the Secret Speech in 1956. Mao lost his luster, or some of it, in the wake of publication of honest books: such as the one by his doctor, Li Zhisui, and the Chang-Halliday biography. Ho is no longer a poster boy. Chávez is popular, though dead — and a small fry in any case. A Castro wannabe.

For years, Cuban democrats have been defamed as gusanos, meaning worms, or “Batista stooges.” Luminaries in our culture have treated Castro gently, when not bathing him in adulation. Carole King, the singer-songwriter, crooned to him “You’ve Got a Friend.” He sure does, many of them. But his victims have friends, too. And a handful of them were present on Lexington Avenue in New York today.

(A courtesy to those needing to know: The heading of this post alludes to the title of an important anti-totalitarian novel, Koestler’s Darkness at Noon. Koestler himself must have drawn the words or image from the Bible.)

Re: Senate Democrats’ Religious Deprivation Bill


How extreme is that bill? It means that if the Hillary Clinton administration decided that employers have to cover surgical abortions, neither Hobby Lobby nor the Little Sisters of the Poor would any longer have a defense under the Religious Freedom Restoration Act.

Pro-Life Sentiment Hits an All-Time High, According to Rasmussen


On Wednesday, Rasmussen Reports released a new poll on the issue of abortion suggesting that pro-life sentiment has reached an all-time high. The findings indicate that 44 percent of likely voters describe themselves as “pro-life,” while 48 percent describe themselves as “pro-choice.” This 44 percent figure may seem unremarkable, but Rasmussen polls consistently show lower pro-life sentiment than Gallup polls. This is partly because Gallup surveys all adults, while Rasmussen surveys likely voters. On average, voters earn higher incomes than non-voters, so this likely skews Rasmussen’s results in a more “pro-choice” direction.

Overall, Rasmussen has conducted 16 polls on abortion since 2010 and, in general, opinion on abortion has remained relatively stable since that time. Many pollsters, including Rasmussen, did find slight decrease in pro-life sentiment in 2012, but the results from this week’s poll add to a body of polling data suggesting that pro-life position has made gains since the 2012 presidential election.  Indeed, this poll also found short-term gains in both the percentage of respondents who felt abortion was “morally wrong” and the percentage who supported a waiting period before an abortion. 

The crosstabs of this survey are consistent with previous polls: Pro-life sentiment is somewhat higher among men, the elderly, and low-income earners. However, the differences between various demographic groups are not all that dramatic. 

One crosstab in particular should provide encouragement to pro-lifers. Among respondents who said that the issue of abortion was “very important” in terms of how they would vote in the next congressional election, 58 percent said that they were pro-life, while only 39 percent identified as “pro-choice.” Many polls show that the pro-life position is politically advantageous, and these results should provide some reassurance to pro-life candidates and officeholders.

What the Hobby Lobby Dissenters Think, and Why They’re Wrong


This column of mine drew this e-mail a couple of days ago (sorry for my delay responding):

I’m not a “gullible liberal,” or any kind of liberal, but I too thought that the [liberal dissenters in Hobby Lobby] were against granting religious freedom to corporations. I thought that was the main dividing line [in the case]. You’re telling me that’s not true because Breyer and Kagan did not agree with Ginsburg [and Sotomayor] about that. So what was the main point of the dissent? Thanks! (I try to stay informed but I’m afraid I don’t have time to read Supreme Court opinions.)

First of all, it’s entirely reasonable not to read Supreme Court opinions. But you can’t always trust the coverage of them, and the coverage of this one has placed too much emphasis on a liberal argument about corporate rights that got only two votes.

Ginsburg and Sotomayor do not think the Religious Freedom Restoration Act protects for-profit corporations. Breyer and Kagan refused to endorse that part of the Ginsburg dissent. So, you’re asking, what’s the argument that all four dissenters made?

As I read it, the argument has two parts. First, the dissenters claim that the HHS mandate does not impose a substantial burden on the objectors’ exercise of religion because the connection between their act and the conduct to which they object is “too attenuated”: The objectors are not being forced to use the contraceptives they oppose. Second, they deny that there is any less burdensome way of achieving the goal of improving access to contraception at no cost or inconvenience to the user.

On this second point, Ed Whelan has explained that the dissent gets the burden of proof backward: It’s the administration that has to show that it has chosen the means of achieving its goal that is least burdensome to the exercise of religion before it can impose that burden on objectors.

On the first point, the dissenters are simply second-guessing–in a way inconsistent with both the Religious Freedom Restoration Act and the broader tradition of religious liberty–the objectors’ religious convictions. Their relevant religious conviction is not precisely that the use of Ella (for example) is wrong; it is that facilitating and appearing to condone the use of Ella is wrong. Many people, of course, disagree with Hobby Lobby’s owners’ view, either on the ground that there is nothing wrong with the use of Ella or that the owners’ complicity in its use is “too attenuated” to be problematic. But as Justice Alito’s majority opinion rightly notes, the law does not ask the Court to judge whether the owners’ view of the morality of the action the government is trying to force them to take is sensible. The law wouldn’t be much of a protection of religious liberty if it did ask the Court to judge religious views.

Once the Court establishes that the government is demanding that someone take an action he considers contrary to his religious beliefs — that it is, in other words, imposing a burden on the exercise of religion — the next question before it is not “does this violation of religious beliefs strike me, the judge, as substantial?” It’s “is the consequence the government imposes for following the belief substantial”? Large fines and a prohibition on offering employee health benefits would seem pretty obviously to count.

Senate Democrats’ Religious-Freedom Deprivation Bill


Under the guise of “protect[ing] women’s health from corporate interference,” the bill that Senate Democrats are proposing in response to the Hobby Lobby ruling would deprive religious entities of all religious-liberty protections against having the HHS mandate directly imposed on them. Specifically:

1. The bill would apply to employers generally, not just (as the bill’s short title would suggest) to “corporate” employers. Subsection 4(a) would make it unlawful for any “employer that establishes or maintains a group health plan for its employees” to “deny coverage of a specific health care item or service . . . where the coverage of such item or service is required under any provision of Federal law or the regulations promulgated thereunder.” (Note that the “purpose” set forth in section 2 is likewise defined with respect to “employers” generally.)

As I understand it, subsection 4(a) wouldn’t itself override the existing “exemption” from the HHS contraceptive mandate (which applies to a very narrow category of “religious employers”) or the “accommodation” for religious nonprofits, because employers covered by the exemption and accommodation are not “deny[ing] coverage” of an “item or service [that] is required under any provision of Federal law or the regulations promulgated thereunder.”

2. Subsection 4(b) states that subsection 4(a) “shall apply notwithstanding any other provision of Federal law, including Public Law 103-441” (which is the Religious Freedom Restoration Act).

In other words, no employer – religious or otherwise, corporate or otherwise, for-profit or otherwise — would have any RFRA rights against being required to comply with subsection 4(a).

3. Subsection 4(c) states that the existing HHS mandate regulations on the exemption and the accommodation “shall apply with respect to” section 4. It further states that the regulatory agencies “may modify such regulations consistent with the purpose and findings of this Act.”

I don’t know what it means to say that the exemption and the accommodation “shall apply with respect to” section 4. I gather that it means no more than that the bill itself wouldn’t abolish the exemption and the accommodation.

In any event, it is clear from the second sentence of subsection 4(c) that the bill would allow the Obama administration (or its successors) to abolish the exemption and the accommodation in their entirety. (If the bill were instead intended to preserve the exemption and the accommodation against regulatory abolition, it would be a fairly simple matter to say so clearly.)

Under the bill, if the exemption and the accommodation were abolished, religious entities would be subject to the HHS mandate under subsection 4(a) and would have no RFRA protections against it.

I’ll note that (as a reader called to my attention) the metadata to the one-pager that Senator Murray issued about the bill yesterday identified its author as Hillary Schneller of the National Women’s Law Center. (I haven’t checked whether the metadata has since been scrubbed.) It’s a safe bet that activists at NWLC and similar organizations drafted the entire bill. I’m not going to pretend to be shocked that outsiders draft legislation for senators. But if you hand the drafting pen to ideological activists, you’re not likely to get a modest result.

(Among other things, that one-pager asserts that the bill “would restore the contraceptive coverage requirement guaranteed by the Affordable Care Act.” But the so-called Affordable Care Act — which in its full Orwellian glory is actually the Patient Protection and Affordable Care Act — does not mention contraceptive coverage at all, much less guarantee it. The HHS mandate is a regulatory implementation of a provision of the Act.)

Lowry: Latest Lerner E-mail Revelations Show ‘Culpable State of Mind’


Lerner Cautioned IRS Employees about Use of E-mail


E-mails released Wednesday by the House Oversight Committee show that disgraced Internal Revenue Service official Lois Lerner warned her colleagues about communicating via e-mail when Congress began investigating the agency’s targeting of right-leaning groups.

Oversight Committee chairman Darrell Issa, a California Republican, called the e-mails the “smoking gun” in the IRS scandal, which his committee has been investigating for over a year.

“[This is] a smoking gun, this is Lois Lerner clearly cautioning people not to say things on email and be delighted to find out that the local instant chat they have, this Microsoft product, wasn’t tracking what they said,” Issa said Wednesday in an interview with Fox News.

In the April 2013 e-mail exchange, Lerner tells another IRS employee as well as the manager of the Exempt Organizations division, Nanette Downing, that she is “cautioning folks about email” because “Congress has asked for emails and there has been an electronic search for responsive emails — so we need to be cautious about what we say in emails.”

The release of the e-mail exchange will fuel the continuing controversy over the records of Lerner’s communications. The IRS has said it cannot produce many of the e-mails she sent during a two-year period as a result of a hard-drive crash on her computer, and Lerner’s vocal concern about the contents of e-mail messages adds heft to Republicans’ charge that vital evidence has been lost.

Lerner, who retired from the IRS last September after she was suspended due to her role in the targeting of conservative groups, went on to ask whether “OCS conversations” — conversations conducted over the IRS’s electronic instant-messaging system — would be turned over to congressional investigators in addition to e-mails.

Issa said the exchange makes it clear that Lerner was “covering her tracks” and “didn’t want an audit trail of what they’d been doing and what they were doing was targeting conservatives for their views.”

The timing of Lerner’s message is significant because it was just a month later, in May 2013, that she disclosed the IRS’s inappropriate targeting of conservative groups by planting a question in the audience at a conference of the American Bar Association in Washington, D.C. At the time, she knew that the Treasury Department inspector general was investigating the targeting scandal at the urging of House Republicans, who had for months been asking questions about the complaints they were receiving from tea-party groups about seemingly invasive inquiries from the IRS.

‘I’m Not Interested in Photo-Ops’ (Except When I Am)


Yesterday, President Obama defended his decision not to visit the southern border while he’s in Texas this week on the grounds that “I’m not interested in photo-ops.” All well and good, but the White House staff doesn’t appear to have gotten the memo. It’s shared at least five photos of the president in Dallas and Austin:


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