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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

The modern Supreme Court is the most conservative since the 1930s.

The median justice during the Roberts Court is more conservative than at any time during the last 75 years, according to a statistical method developed by legal scholars Andrew Martin of Washington University School of Law in St. Louis and Kevin Quinn of the University of California at Berkeley School of Law.

When he was appointed in 1975 by President Ford, Justice John Paul Stevens was considered one of the court's more conservative members. By the time he retired in 2010, he was heralded as its liberal lion.

The high court's rightward trajectory mirrors the broader national shift over the last several decades. President Bush sealed a five-member conservative majority by appointing Chief Justice John Roberts and Justice Samuel Alito.

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No matter what the Supreme Court decides in its health care reform ruling expected Thursday, Republicans have promised to repeal all parts of the law that are left standing.

If they sweep the elections, Republicans will be able to roll back key parts of the law either with a 51-vote Senate majority or via executive fiat. But that will leave other major pieces that require an implausible 60-vote Senate threshold to repeal, allowing Democrats to filibuster. The options are detailed in a report by the D.C.-based political intelligence firm Washington Analysis.

Multiple budget-related parts of the Affordable Care Act can be repealed via a bare majority under a Senate procedure known as reconciliation. Those parts include the insurance subsidies, Medicaid expansion, the Medicare cost-saving Independent Payment Advisory Board, closing the "doughnut hole," and taxes on insurers and providers.

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Republicans have threatened to sue to block President Obama's administrative decision not to deport some young illegal immigrants. Even House Speaker John Boehner (R-OH) has questioned whether the move is constitutional. But the Supreme Court decision Monday in the Arizona immigration case suggests Republicans may have a difficult time prevailing in court.

The court's 5-3 decision to strike down major pieces of Arizona's immigration law emphasized the "broad discretion" the federal government has in choosing which migrants to target.

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The Senate's top Democrat and Republican said Tuesday that they're nearing a final agreement to avoid a doubling of Stafford student loan interest rates next week.

"We think we're in a good place on student loans," said Senate Majority Leader Harry Reid (D-NV).

"We're moving toward completion this week of both the extension of the student loan rates at the current level for another year," said Senate Minority Leader Mitch McConnell (R-KY). "The president's been largely uninvolved in that, but Senator Reid and I have an understanding and we think it'll be acceptable to the House. That may or may not be coupled with the highway proposal over in the House."

Early this month the two parties were publicly exchanging offers for how to fund a one-year freeze, which would cost $6 billion. Though they were slowly resolving their differences, negotiations had hit a roadblock.

The fact that lawmakers and aides are mum on details suggests that talks are now happening in earnest. But the question remains whether the two chambers can resolve their differences even if Reid and McConnell are able to.

The Supreme Court's ruling Monday against major parts of Arizona's immigration law highlighted the GOP's bind on the issue, with Mitt Romney awkwardly equivocating. A leading Arizona Republican sought to ease his party's troubles by devising a novel claim: that President Obama was to blame for Congress's failure to pass immigration reform under President Bush.

"I note that in his response to today's Supreme Court ruling, President Obama called on Congress to pass comprehensive immigration reform. I also note that the bipartisan comprehensive immigration reform bill I helped draft in 2007 was killed -- in part -- by then-Senator Obama," Sen. Jon Kyl (AZ), a Republican leadership member, said in a statement.

The problem: Obama voted in favor of Bush's 2007 immigration legislation, while Kyl joined the filibuster that quashed it.

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In his aggressive defense of Arizona's immigration law, Justice Antonin Scalia pointedly went after President Obama's recent immigration policy shift and accused him of deliberately refusing to enforce immigration statutes.

Justice Scalia wrote a 22-page barnstorming dissent against the court's 5-3 decision Monday which found major provisions of S.B. 1070 violate the Constitution. The conservative jurist accepted the premise that the federal government has supremacy on immigration, but declared that the Arizona law is "in complete compliance" with federal statutes.

In his point-by-point defense of the Arizona legislation, the avowed law-and-order conservative surmised that the Obama administration "desperately wants to avoid upsetting foreign powers." He accused federal officials of "willful blindness or deliberate inattention" to the presence of illegal immigrants in Arizona.

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The Supreme Court on Monday struck down key parts of Arizona's immigration law, but let stand one controversial provision -- at least for now.

In a 5-3 ruling handed down by Justice Anthony Kennedy, the high court held that most of the provisions being challenged encroached on turf that is constitutionally reserved for the federal government. The court overturned parts of the law that criminalize one's presence in Arizona without documentation, criminalize working or looking for work without legal status, and permit police to arrest people without a warrant if there's suspicion that they've committed a deportable crime.

But the provision of S.B.1070 permitting police to check a person's immigration papers during lawful detainments was not thrown out by the court. Rather, the court declared that it was premature for the lower courts to block that provision of the law and left open the possibility of revisiting its constitutionality after it goes into effect.

"The Government of the United States has broad, un­doubted power over the subject of immigration and the status of aliens," Justice Kennedy wrote in the majority opinion, which was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Elena Kagan, who worked on the issue as Obama's solicitor general, did not participate in the case.

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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."

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