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C-SPANPeople for the American Way (PFAW) cites Gutierrez-Brizuela v. Lynch, a 2016 decision by the U.S. Court of Appeals for the 10th Circuit, as evidence that Neil Gorsuch is unfit for the Supreme Court. Meanwhile, in a New York Times op-ed piece, Neal Katyal, a solicitor general in the Obama administration, cites the same case as an illustration of "Why Liberals Should Back Neil Gorsuch." These diametrically opposed takes show why it is hazardous to view constitutional law as a battle between liberals and conservatives.

PFAW does not like Gorsuch's questioning of the Chevron doctrine, which says courts should defer to executive agencies' interpretations of ambiguous statutes, even to the point of reversing prior judicial interpretations. "Eliminating this principle...would tie the hands of precisely those entities that Congress has recognized have the depth and experience to enforce critical laws, safeguard essential protections, and ensure the safety of the American people," PFAW says. It neglects to mention that Gutierrez-Brizuela involved immigration law, and Gorsuch came down on the side of a longtime resident trying to legalize his presence in the United States. Sounds kinda liberal, no?

The decision dealt with an apparent conflict between two provisions of immigration law. One gives the attorney general "discretion to 'adjust the status' of those who have entered the country illegally and afford them lawful residency." The other "provides that certain persons who have entered this country illegally more than once are categorically prohibited from winning lawful residency...unless they first serve a ten-year waiting period outside our borders."

In 2005 the 10th Circuit ruled that the first provision supersedes the second, so even residents who have illegally entered the country more than once can still obtain legal status without waiting 10 years outside the United States. Two years later, the Board of Immigration Appeals (BIA), an administrative agency, decided the second provision limits the attorney general's discretion, meaning the waiting period is unavoidable. In a 2011 case, the 10th Circuit acceded to the BIA's interpretation, as required by the Chevron doctrine.

Last year's case involved an unauthorized immigrant, Hugo Rosario Gutierrez-Brizuela, who petitioned for a change of status before the new interpretation was adopted. In the majority opinion, Gorsuch noted that applying the new interpretation retroactively would not only violate the usual rules of statutory construction but raise "due process and equal protection concerns," since immigrants who had made decisions based on the previous interpretation would suddenly have the rug pulled out from beneath them:

After all, back in 2009 the law expressly gave Mr. Gutierrez-Brizuela two options: he could seek an adjustment of status...or accept a ten-year waiting period outside the country. Relying on binding circuit precedent, he chose the former path. Yet the BIA now seeks to apply a new law to block that path at a time when it's too late for Mr. Gutierrez-Brizuela to alter his conduct. Meaning that, if we allowed the BIA to apply Briones here, Mr. Gutierrez-Brizuela would lose the seven years he could've spent complying with the BIA's ten year waiting period and instead have to start that waiting period now. The due process concerns are obvious: when Mr. Gutierrez-Brizuela made his choice, he had no notice of the law the BIA now seeks to apply. And the equal protection problems are obvious too: if the agency were free to change the law retroactively based on shifting political winds, it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter.

Gorsuch also wrote a concurring opinion, and that is where he directly challenged the Chevron doctrine, which PFAW presumably would argue was unnecessary to resolve the issue of retroactivity. But in the concurring opinion Gorsuch emphasized that Chevron deference endangers liberty by weakening the separation of powers, under which Congress passes laws, the executive branch enforces them, and courts decide disputes about their meaning. "The founders considered the separation of powers a vital guard against governmental encroachment on the people's liberties, including all those later enumerated in the Bill of Rights," he wrote. "A government of diffused powers, they knew, is a government less capable of invading the liberties of the people." Giving one agency the power to interpret and rewrite the law as well as enforce it poses a clear threat to people at the agency's mercy, including highly vulnerable people like Gutierrez-Brizuela.

Here is how Katyal, who notes that he and Gorsuch "come from different sides of the political spectrum," describes the judge's position in Gutierrez-Brizuela and an earlier immigration case that addressed a similar issue:

Judge Gorsuch ruled against attempts by the government to retroactively interpret the law to disfavor immigrants. In a separate opinion in Gutierrez-Brizuela, he criticized the legal doctrine that federal courts must often defer to the executive branch's interpretations of federal law, warning that such deference threatens the separation of powers designed by the framers. When judges defer to the executive about the law's meaning, he wrote, they "are not fulfilling their duty to interpret the law." In strong terms, Judge Gorsuch called that a "problem for the judiciary" and "a problem for the people whose liberties may now be impaired" by "an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day." That reflects a deep conviction about the role of the judiciary in preserving the rule of law.

Critics of Gorsuch should not be taken seriously if they can't recognize (or refuse to acknowledge) the ways that "conservative" convictions can achieve liberal ends.

Originally posted here:
Gorsuch Defends Illegal Immigrant's Rights, and Progressives Are Appalled - Reason (blog)

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As Western civilization has always understood, hard cases make bad law, declared MILO. And the Church has long been the enemy of utopianism, the most prominent vice of leftists, who demand that each of us be perfect immediately, according to the warped view of perfection you find in gender studies classes and Marxist gripe fests.

Here is the relevant distinction, and Im quoting from the Churchs Angelic Doctor, St. Thomas Aquinas, he continued. Human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain.

In other words, its not wise to punish with human law everything that may be opposed to the natural law.That means I can say its wrong to take innocent life, without having to say that we should outlaw abortions in every single case, MILO explained. In a sane country, we would argue about what cases should be illegal. Should you, for instance, as often happens in non-Christian lands, allow abortion when parents dont want a girl baby?

As MILO movedon with a fact that he claimed would help you understand that Thomas Aquinas and the Church arent the kill-joy puritans that your lying professors claim, he declaredthatSt. Thomas and before him St. Augustine both followed this anti-utopian view Ive described when it came to prostitution.

They thought it was wrong to do, but foolish to make illegal, he concluded. I dont think theyd approve of rent-boys, so my 20s still require some apologizing for, but it is still an amazingly progressive position.Sorry feminists. Once again dead white men are clearer thinkers than your leading lights!

Written from prepared remarks.

See the original post:
MILO: Aquinas and Augustine Were Radical Progressives - Breitbart News

Historically, the dirty work of American democracy is done in the halls of Congress and state legislatures. But in more than half of U.S. states, activists who cant get any traction for their policies in the state capitol have the option of turning directly to voters.

Maine is one of the 26 states in which progressive groups are using ballot initiatives to move policy. But Republicans are pushing back with legislation that will make it harder to do that.

Both parties have tried to use Maines century-old ballot initiative law to push their own issues, be it gay marriage, tax reform or gun control.

Following the most recent election, in which groups successfully convinced voters to raise the minimum wage, tax the wealthy to fund education, legalize marijuana and overhaul the states election system, Republican lawmakers have proposed nearly a dozen bills to make it more difficult to qualify for the ballot.

This process needs to be changed. It is interfering with our elected job as representatives of the people, says Republican Senate leader Garrett Mason, who is among the advocates for stricter ballot access.

Mason believes well-heeled outside groups have used the initiative too often to implement big, complicated policy changes that are better handled by the Legislature.

People can come in here and buy our elections. I hate to say that, but its happened way too many times recently, Mason says.

Groups spent over $10 million last year on five ballot initiatives. More than half of that came from the organization backed by former New York City Mayor Michael Bloomberg, which tried and failed to tighten background checks on gun sales.

The background check campaign became the poster child for what conservatives say is a referendum process hijacked by wealthy interest groups. Enter a number of new bills aimed at stopping, or at least slowing, that trend.

One would exclude wildlife issues from the citizen initiative law an attempt to prevent a third bear-baiting referendum.

Another appears designed to bar gun-related issues from appearing on the ballot at all.

And several others would force campaigns to obtain signatures from rural parts of the state not just the urban centers in order to even qualify for the ballot.

The thought is that we need to make it a little more difficult to get things on the ballot, or not so much difficult but that you would have buy-in from all sections of the state on some kind of equal process, says state Rep. Lance Harvell, a Wilton Republican.

Harvell has proposed a bill that would ask voters to amend the state Constitution and require ballot campaigns to gather signatures from each of the 35 state senate districts.

Right now, there is no geographical requirement. Campaigns need only to gather signatures equal to 10 percent or more of the number of people who voted in the most recent gubernatorial election.

In his weekly radio address after the election, Gov. Paul LePage said hell also propose changing the Constitution around ballot questions.

Residents in southern Maine should not be able to control the citizen initiative process, he said.

This is simply lawlessness, says Justine Sarver, director of Ballot Initiative Strategy Center, a D.C.-based group that provides legal advice and political expertise for liberal ballot campaigns, including last years Question 4, which raised the minimum wage.

Sarver says efforts to tighten ballot access by Republicans are hypocritical because conservatives have historically used ballot initiatives to forward their own agendas and they did that in times when they were lacking political leverage.

Eight years ago, when Democrats controlled half of the nations state houses, Republicans turned to citizen initiatives, including a $4.5 million effort in 2009 to overturn Maines gay marriage law, and a Republican-backed effort to repeal a tax reform bill passed by the Democratic-controlled Legislature.

But now the GOP controls two-thirds of the countrys partisan chambers, has total control of government in over half the states, the Congress and the White House.

The Republican dominance, Sarver says, partially explains the emergence of over 160 citizen initiatives nationwide last year, including five in Maine.

It is, in these times especially, an important tool, both for protest and for policymaking in the progressive realm, she says.

Perhaps its no surprise that Republicans dont see it that way, and are trying to raise the bar for campaigns to qualify for the ballot. Lawmakers in South Dakota are eying a change that would increase the number of signatures to get on the ballot.

Theyre also looking to repeal a citizen-initiated ethics law passed by voters in November. Last year Republicans in Michigan sought to derail an initiative to ban fracking by changing election laws.

In other states, Republicans have passed ballot questions to compete with citizen-initiated ballot questions, a tactic critics say is designed overwhelm and confuse voters.

These kind of efforts are not new. Past attempts to change Maines ballot law have encountered fierce resistance from both parties, including a protest in the form of a mock funeral at the State House 16 years ago.

A public affairs segment produced by Maine Public Television at the time shows a Cadillac hearse, pallbearers and a casket draped in a bicentennial flag. The dozen or so mourners objected to a slate of proposals that would have required petition signatures from multiple counties, banned circulators from polling places and increased the number signatures to get on the ballot.

Mary Adams, a longtime conservative activist, was among them. She and the so-called band of Freedom Fighters had used the initiative law 25 years earlier to repeal the statewide property tax.

In the segment, Adams accused supporters of the changes for ignoring the Constitution and suppressing the voice of the little guy.

Theres going to be a bunch of Freedom Fighters of the future with little money and a tax cause. And you and the others are trying to squelch their chance, she said.

In that year Adams and other conservatives actually teamed with progressive groups to defeat the changes, among them former Republican Senate President Rick Bennett. Bennett has just stepped down as chairman of the Maine Republican Party, but not before launching a now suspended effort to put an aggressive tax reform and welfare overhaul on the 2016 ballot.

But now, well-financed outside interest groups affiliated with both parties have more at stake in ballot campaigns.

In 2015, the Republican State Leadership Committee, or RSLC, warned donors that progressive groups are using ballot initiatives to gain power. The RSLC, which contributed nearly half a million dollars to GOP-controlled political action committees in Maine last year, vowed to fight back.

And on the left, progressive groups have vowed to fund and make heavy use of a process that many in both parties agree can produce messy laws.

Whether the looming partisan charged debate produces any changes is unclear. But when it comes to ballot initiatives and political parties, the old axiom applies: They love it when they need it, they hate it when they dont.

Read the original:
As Progressives Turn to Ballot Initiatives, GOP Eyes Restrictions - MainePublic.org

#GrabYourWallet has gotten quite a bit of publicity as the leading organizer of progressive boycotts against companies that are somehow associated with Donald Trump. The boycott effort is doomed to fail, for a couple of reasons: first, social justice warriors are a small percentage of the population; second, social justice warriors who are willing to change their shopping habits are an infinitesimal percentage of the population.

So this is mostly for laughs. Here is a screen shot that shows what #GrabYourWallet looks like. Note that the large majority of companies are to be boycotted because they carry Ivanka Trumps clothing line. This is even more vicious and mean-spirited than the average politically-inspired boycott campaign. Click to enlarge:

The scope of the boycott effort is entertaining. Progressives arent supposed to shop at Amazon, Bed, Bath & Beyond, Bloomingdales, Bluefly, Filenes BasementI doubt that many liberals shop thereGilt, Jet, Kmart, Lord & Taylor, Macys, Marshalls, Nieman Marcus, Nordstromwhere is a progressive supposed to get shoes?Sears, T J Maxx, Walmartno problem there!and many more.

Then we have the category of businesses that progressives should consider boycotting. Like Breitbart News! You would think they would be higher on the list. But how do you boycott Breitbart.com? I would guess very few progs visit the site. Also Carnival cruise line, Forbes, Hobby Lobby, LL Bean, the Los Angeles Clippers (seriously), andthis may be the funniest of allKushner Properties! How, exactly, is a typical liberal living in his mothers basement supposed to boycott Kushner Properties, which is owned by Trumps son-in-law? Not hire them to develop his next apartment tower or retail complex, I guess.

Progressives are also told to consider boycotting companies as disparate as MillerCoors, Nascaras if!Trump golf courses and hotels, Uberthis will be tough on hipster progsUniversal Studios, the list goes on and on. Boycotting will need to become a full-time pursuit for liberals determined to keep up.

But we arent finished yet! There is a third category of Entities *Not* Being Boycotted at This Time. Nice business youve got here, shame if anything were to happen to it! Companies now living under threat include all bookstores who sell any Trump bookspretty much all book stores, in other wordsDelta Airlines (dont ask), artists and entertainers who express support for Trumpthis list, fortunately, is very shortFacebook, Home Depot, PayPal, and my favorite: the Washington Post! Who knew WaPo is living under threat of destruction by the Left? Here is the explanation:

Amazon is on the #GrabYourWallet boycott list and Amazon CEO Jeff Bezos also owns the Washington Post, however the Post is a longstanding institution and David Fahrenthold did some of the most important investigative reporting of the election. When polled 58% of #GrabYourWallet participants said the Washington Post should not be added to the boycott list. We do encourage people to subscribe to WaPo directly versus via the Amazon site.

Politically-inspired boycotts are, in general, a nasty business. But this one is so pathetic that its only real significance is as a guide to the mean-spiritedness of liberals.

See the original post here:
Progressives Say: Boycott the World! - Power Line (blog)

Senate Minority Leader Chuck Schumer has already conceded that he believes President Donald Trump won't pick a "mainstream" candidate. | AP Photo

Progressive groups will mount a multi-phase effort against President Donald Trumps Supreme Court nominee, targeting specific Democratic and GOP senators and preparing a broader assault on Republicans to pressure them against blowing up the filibuster even as some Senate Democrats pledged Monday to block Trumps pick.

Leaders of key groups have been meeting privately to coordinate strategy for the past month, and have already begun to talk protest plans in senators home states and at the Supreme Court in Washington, with early conversations about fundraising and advertising underway.

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They are still outraged by the Republican blockade of Barack Obamas nomination of Merrick Garland last year but are trying to cast their own opposition as different particularly as Trump already has issued a series of executive orders that have prompted court challenges nationwide.

Foremost is Trumps far-reaching and controversial executive order to ban immigrants from several predominantly Muslim nations, a directive sure to be a focus in the coming Supreme Court fight.

There is now an urgency to oppose anyone who wont be a powerful check on the Supreme Court against the executive branch excesses and impulses, said Nan Aron, founder and president of the Alliance for Justice. I would predict that there will be a huge outcry if the nominee cannot demonstrate that he or she could be independent and serve as the check on presidential power.

On the Democratic side, progressives are zeroing in on red-state Democrats like West Virginias Joe Manchin and North Dakotas Heidi Heitkamp. Among Republicans, theyre looking at Arizonas Jeff Flake and Nevadas Dean Heller, who are both up for reelection in 2018, and the moderate Susan Collins of Maine.

And while conservative forces are already putting the finishing touches on a $10 million ad blitz targeting red-state Senate Democrats who will come under enormous pressure to back Trumps nominee, People for the American Way is readying a television ad campaign of its own as a counterbalance.

There will be resources available to make the case, said Marge Baker, the groups executive vice president. This is a fight that were going to be in, in an absolutely serious way.

The advocates contend they have both the progressive energy to pressure Democrats to hold the line, and enough of a buffer in a Democratic caucus of 48 members to lose several while still being able to block a nominee.

There is a lot of energy in the progressive space to say, This seat was stolen from a Democratic president, period. It was grand larceny, said Brad Woodhouse, president of Americans United for Change. Democrats in the Senate, and progressives and liberals who care about the unprecedented nature of that theft by Republicans, shouldnt roll over for Donald Trump and his Supreme Court pick.

Along the way, theyre hoping to drive a major wedge between Republicans in the Senate, many of whom are wary of blowing up the filibuster completely, and Trump, whos made clear thats what he wants if Democrats dont confirm his nominee.

I dont advocate taking the same approach that GOPers took to Garland (in refusing meetings, hearings and votes), said one former Obama White House official. Id advocate for close, intense scrutiny at every stage of the process which I think will eventually lead just about every Dem to oppose the nominee and likely at least some GOPers.

For months, groups such as the Alliance for Justice and People for the American Way have done extensive research on the nearly two dozen judicial candidates whom Trump named during his campaign, with special focus recently on names that have popped up more frequently such as Third U.S. Circuit Court of Appeals Judge Thomas Hardiman and 10th U.S. Circuit Court of Appeals Judge Neil Gorsuch, two jurists reportedly at the top of the pack.

The pro-abortion rights group NARAL Pro-Choice America has also been distributing its own research on where potential nominees stand.

A broad array of liberal groups, including People for the American Way, The Leadership Conference on Civil and Human Rights, Alliance for Justice Action Campaign, and Center for American Progress Action Fund, have organized a protest for Tuesday night at the steps of the Supreme Court against Trumps nominee, wholl be announced earlier that evening.

Senate Democrats who are also waging a political fight over Trumps executive orders and Cabinet nominees for the most part have tried to reserve judgment until the president actually unveils his pick. Democrats have been insisting on a so-called mainstream nominee, although Minority Leader Chuck Schumer (D-N.Y.) has conceded that he believes Trump wont pick such a candidate.

Still, Democrats are almost sure to face a massive level of pressure from the base to hold the line against Trumps pick.

They need to fight like hell and do all they can to confirm only someone who is fair and an independent judge who can serve as a check to this president, said Ellen Buchman, executive vice president for field and communications at the Leadership Conference for Civil Rights.

Though the advocacy groups insist they are not simply trying to go tit for tat over the obstruction of Garland, theres little doubt that the lingering frustration over how Obamas final nominee was treated has permeated thinking among many Democrats.

Thats how we see this, one Democratic senator said of the Garland blockade. The anger, we feel it in our stomach.

Whenever the Supreme Court fight begins in earnest, Democrats wont be hungry for help from the outside.

The Constitutional Responsibility Project, organized by former Obama aides last year to push for Garlands confirmation, will be reconstituted at the offices of SKDKnickerbocker, with Sheila OConnell, most recently Chris Van Hollens 2016 Senate campaign manager, coming on board.

The opposition-research group American Bridge is preparing a full-research, rapid-response and video-tracking operation to expose the nominee as too conservative and out of step with mainstream Americans, said Kevin McAlister, a spokesman for the group.

And End Citizens United, a political action committee that advocates for campaign finance reform, is readying a national grass-roots campaign that will push its 3 million members to flood senators with calls, emails and petitions, as well as a digital advocacy effort, spokesman Adam Bozzi said.

All that is to counter the expected assault and pressure from conservatives, who backed the Senate GOPs nearly yearlong blockade of Garland but now expect Democrats to fall in line.

Schumer said its hard for him to imagine a nominee from President Trump who Senate Democrats could support, Senate Majority Leader Mitch McConnell (R-Ky.) said Monday. We dont even have one yet. I hope we can get past that and get down to our serious work.

Read this article:
Progressives ready all-out assault on Trump's Supreme Court pick - Politico