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Sahil Kapur

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.

Articles by Sahil

Adam Winkler, a constitutional law professor at UCLA School of Law, piles on his criticism of Justice Antonin Scalia's dissent against the Supreme Court's decision Monday to invalidate major parts of the Arizona immigration law.

He writes in an email to TPM:

Scalia has finally jumped the shark. He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution. Back then, opponents argued that the Constitution denied states their sovereignty by giving too much power to the federal government, as with immigration. Now Scalia echoes their complaints that states are being denied their sovereignty. States are not sovereign when it comes to powers vested in Congress, such as the authority over immigration and naturalization.

It's mind-boggling to see Scalia rail against the Executive's power to enforce the law. That is the core role of the president. He, not the state of Arizona, is the enforcer of our laws. Due to limited resources, every executive -- state, federal, municipal -- must make choices about how aggressively to enforce the law. Cities don't uniformly ticket every car that parks illegally. States don't lock up everyone who ever commits a crime. And the federal government simply can't use its limited funds to enforce every immigration violation without costs to other, more important laws.

Scalia is an originalist: he has his own original view of the Constitution, ungrounded in history and steeped in conservative politics.

 

With a Supreme Court decision on 'Obamacare' expected this week, tensions have reached a fever pitch as observers eagerly await the verdict on the law's constitutionality.

Just three months after legal experts widely predicted the health care reform law would be upheld, expectations have changed dramatically and conservatives are bullish about victory.

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Republicans are lining up against President Obama's end-run around Congress to administratively grant immunity to some undocumented immigrants, effectively ensuring that he reaps the political dividends of the move among Hispanic voters -- and deepening Mitt Romney's predicament with Latinos and conservatives.

New polls suggest that Obama is gaining support among Hispanics, who have been unhappy with him for failing to pass immigration reform and for deporting illegal immigrants at a record pace.

Even as prominent conservatives like George Will and Bill Kristol give their party leaders an escape hatch by praising Obama's move, elected Republicans have instead decided to take cover with their anti-immigration base and stand against it. Careful to wrap their critique in procedural concerns and avoid discussing the substance, GOP lawmakers are lining up in droves to decry Obama's shift as executive overreach. Joining the pack Tuesday was House Speaker John Boehner (R-OH), even as he expressed sympathy for the plight undocumented youth brought to the U.S. by their parents.

"The question remains whether he violated the Constitution," Boehner said, adding that "the president's actions make it much more difficult for us to work in a bipartisan way to get to a permanent solution."

Senate Minority Leader Mitch McConnell (R-KY) noted that Obama last year expressed doubts about the legitimacy of such a move. Asked Tuesday whether the new policy is "amnesty," McConnell responded, "If it leads to citizenship as a reward for some kind of illegal entry, that could be argued." But he added that members of his conference intend to "withhold judgment" until Romney takes a stance, "and I think many of them will have similar views."

So far, Romney has offered few hints on where he stands.

"You know, we will see kind of what the calendar looks like at that point and I am not going to tell which items will come first, second, or third," he told Fox News. "What I can tell you is that those people who come here by virtue of their parents bringing them here, who came in illegally, that's something I don't want to football with as a political matter."

Balancing solidarity with DREAMers with opposition to Obama's policy shift won't be easy. Republicans killed the DREAM Act via Senate filibuster late in 2010, and to date neither elected members nor Romney have backed legislation to address the issue. Sen. Marco Rubio (R-FL), who was crafting a bill to accomplish similar ends as Obama's move, now says it's a lost cause.

Romney has refused to say whether he would keep the new policy if elected. Meanwhile, a growing chorus of Republicans is calling on their nominee to pledge to reverse it.

During the primary, Romney vowed to veto the DREAM Act if elected president and called for laws that encourage "self-deportation" of those migrants. His new-found sympathy for DREAMers is already a notable shift, and further movement in that direction risks angering the conservative base he's careful not to take for granted.

Senate Majority Leader Harry Reid (D-NV), eager to capitalize, went after Republicans for criticizing Obama's move to handle the issue administratively, pointing out that they've been blocking legislative action to help DREAM-eligible youth.

"There's no better illustration of the Republicans' hypocrisy than their phony outrage this past weekend," Reid said Tuesday. "Leading Republican voices on immigration are yet to actually disagree with the decision. They just don't like the way the president made the decision. I guess because he'll get credit for bringing out of the shadows 800,000 trustworthy young men and women who know no other home but the United States."

Some 3.1 million young adults have health insurance as a result of the health care reform law, according to new figures released Tuesday by the Obama administration.

That's up from 2.5 million in December 2011, a similar report found then.

"Today, because of the health care law, more than 3 million more young adults have health insurance," Health and Human Services Secretary Kathleen Sebelius said in a statement. "This policy doesn't just give young adults and their families peace of mind, it also gives them freedom. It means that as they begin their careers, they will be free to make choices based on what they want to do, not on where they can get health insurance."

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President Obama's executive decision to grant immunity to a select group of undocumented immigrants is provoking hostility from Republicans, much to the delight of Democrats. The president is already enjoying gains among Hispanics in polling, and his campaign has reason to hope the fallout will clarify to this key voting bloc which candidate is on their side ahead of the election.

For Mitt Romney, the chasm between Hispanics and his anti-immigration conservative base is already proving to be unbridgeable -- and it's only growing.

In floor speeches and media appearances Monday, House Republicans channeled the misgivings of conservatives, excoriating Obama's policy decision as an "imperial" move that shows a lack of respect for the rule of law. At least one member of Congress has already threatened to sue to block it.

Although the prime directive from GOP leaders has been to focus on the process and timing of Obama's administrative shift, it has been difficult for some rank-and-file members to refrain from going after the substance. For instance, Rep. Blake Farenthold (R-TX) argued that some minors brought to the U.S. by their parents knowingly broke the law and should be held accountable.

"Well, you are also talking about people that came over at 16 years of age," Farenthold told CNN. "At that point you had a say in it and that looks more like amnesty."

Here's a highlight reel of Republican push-back against the new policy.

         


Romney has so far dodged the substance of Obama's decision, which opens the door to two-year work authorization for illegal immigrants under 30 who were brought to the U.S. as children and meet certain criteria, such as having attained higher education or serving in the military. He has refused to say if he'd reverse the decision as president, which he's already facing pressure from the right to pledge to do.

Romney's former opponent and now-surrogate Rick Santorum said Sunday that his party's nominee is "trying to walk the line" on the issue so as to avoid appearing "hostile" to Latinos.

Even Sen. Marco Rubio (R-FL), who has recently championed the cause of granting legal status to DREAM Act-eligible immigrants, has felt compelled to hedge on Obama's shift.

Meanwhile, Obama is already enjoying a boon among Latino voters, who comprise the nation's fast-growing demographic and have been disillusioned by the lack of immigration relief that has occurred during his presidency. His decision has fueled a 35 percent net gain in Hispanic enthusiasm behind his candidacy, according to a Latino Decisions survey.

For Romney, losing Latino voters -- or mobilizing unenthusiastic Hispanics to pull the lever against him -- could potentially be fatal in swing states. It's a delicate balance for the Republican nominee, whose record of moderate positions as governor of Massachusetts means he cannot take the enthusiasm of his right-wing base for granted.

Senate Majority Leader Harry Reid (D-NV) responded Monday to Mitt Romney's argument that Congress, not President Obama, should provide relief to DREAM-eligible immigrants.

"I was stunned listening to the Republican nominee for president say, why doesn't Congress do this? We have tried. We can't get Republican votes," Reid said on the Senate floor.

Senate Republicans filibustered the DREAM Act late in 2010, preventing it from coming to a vote.

"The DREAM Act is not amnesty. It rewards responsibility and opportunity," Reid added. "Unfortunately, Republican opposition stalled this legislation. ... I congratulate [President Obama] for this courageous decision."

Watch Reid's floor speech below, via his office.

To observers of the 'Obamacare' oral arguments, it would come as no surprise that Justice Antonin Scalia is a likely vote to strike it down. But there has remained one major wrinkle in his prior jurisprudence that continues to give hope to a handful of the health care law's proponents that he'll vote to uphold it.



Now, within days of the historic ruling, Scalia is releasing a new book in which he finds fault with a Roosevelt-era Supreme Court decision that forms a critical part of the legal undergirding for the health care reform law. For Scalia, that's a dramatic turnaround, because he has previously embraced the premise of that decision in an opinion he authored in 2005 that supporters of the Affordable Care Act have frequently cited.

In Scalia's new book, a 500-page disquisition on statutory construction being published this week, he says the landmark 1942 ruling Wickard v. Filburn -- which has served as the lynchpin of the federal government's broad authority to regulate interstate economic activities under the Constitution's Commerce Clause -- was wrongly decided.

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UCLA law professor Adam Winkler, who is briefly quoted in TPM's article about Justice Antonin Scalia's reversal on the Constitution ahead of the 'Obamacare' ruling, explains in further detail why he believes the flip-flop is revealing.

Specifically, Winkler argues, the only thing that has changed since Scalia's 2005 embrace of the New Deal-era ruling that underlies the basis for the constitutionality of the individual mandate is the "political implications."

He writes in an email to TPM:

This is typical Scalia. He respects precedents when they fit his conservative ideology and disregards them when they don't. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What's changed is the political implications of the commerce clause. When its being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law. Once again, we see that Scalia's originalism is a charade.

After spending President Obama's first term emboldening the most ideologically intense elements of the conservative movement, elected Republicans are now finding themselves in a box on critical issues like health care and taxes with limited options to avert national crises.

On health care, Republicans are coming to grips with the prospect of owning a mess of a system if the Supreme Court overturns 'Obamacare' this month.

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The Associated Press reports:

ATHENS, Greece — The pro-bailout New Democracy party came in first Sunday in Greece's national election, and its leader has proposed forming a pro-euro coalition government.

New Democracy leader Antonis Samaras says "the Greek people today voted for Greece to remain on its European path and in the eurozone."

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