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Obama Embraces CAP’s Idea To Create Presidential Commission To Investigate Oil Spill

Our guest blogger is Daniel J. Weiss, a Senior Fellow and Director of Climate Strategy at the Center for American Progress Action Fund. This post was originally published on Climate Progress. On May 4, Weiss wrote “We need an independent commission to investigate the BP disaster.”

Oil Slick tallAs millions of gallons of oil continue to gush from the bottom of the Gulf of Mexico four weeks after the tragic BP disaster, AP reports that

President Barack Obama will establish the commission [to investigate the BP disaster] by executive order. It will be similar to panels created to investigate the space shuttle Challenger disaster and the nuclear accident at Three Mile Island, according to the official, who spoke on condition of anonymity ahead of a public announcement.

The New York Times reports

The president will create the panel by executive order “in coming days,” a White House official said. “The commission will take into account the investigations underway concerning the causes of the spill and explore a range of issues including: industry practices; rig safety; Federal, state, and local regulatory regimes; federal governmental oversight, including the structure and functions of M.M.S.; and environmental review and other protections,” the official said, requesting anonymity to discuss the matter in advance of the presidential announcement.

An hour ago White House sources indicated to CAP that an official announcement about this executive order could occur on Tuesday or Wednesday.

In addition to the horrible loss of eleven lives on the now sunken Deepwater Horizon oil rig, the BP oil disaster could be the most devastating environmental disaster to ever befall the United States. To understand what caused this oil nightmare, in early May CAP proposed that President Obama appoint appoint “an independent commission to completely examine the causes of the BP disaster and offer guidance for how we can make sure it never happens again.

This would enable investigators to conduct an independent assessment of the causes of the disaster, and determine the responsibilities born by BP, Transocean, and Halliburton. An independent inquiry would also be able to determine whether the Minerals Management Service of the Department of Interior fulfilled its oversight duties.

Representatives Lois Capps (D-CA) and Ed Markey (D-MA), introduced the “BP Deepwater Horizon Disaster Inquiry Commission Act of 2010,” H.R. 5241. Senators Sheldon Whitehouse (D-RI), Barbara Boxer (D-CA), and Robert Menendez (D-NJ) have a companion proposal. These measures would create a bipartisan independent commission to investigate the BP oil disaster.

Rather than wait for legislation, Presidents Jimmy Carter and Ronald Reagan used executive orders to create independent commissions to investigate the near nuclear meltdown at Three Mile Island nuclear plant and the Challenger Space Shuttle accident. The orders were signed two and one week after these events, respectively, and the panels completed their work six months and three months after the events.

These were discrete incidents, while the BP oil disaster is an ongoing event so it may take longer to investigate and draw conclusions about the causes and damages. By using an executive order, President Obama can get this inquiry started much more quickly than by waiting for Congress to pass legislation. This will enable investigators to question witnesses while their memories are still fresh, and promptly order BP, Transocean, and Halliburton to preserve all relevant communications and documents.

Justice

SCOTUS’ Sex Offender Decision Eviscerates Anti-HCR Lawsuits

State-funded lawsuits challenging the constitutionality of the Affordable Care Act (ACA) have always been a waste of taxpayer money.  Even if the states are allowed to bring these lawsuits in the first place–itself a dubious proposition–the law’s opponents will have a tough time assembling the five Supreme Court votes necessary to strike down health care reform when even ultra-conservative Justice Antonin Scalia acknowledges that Congress has the power to enact laws such as the ACA.

Today, the law’s opponents lost Roberts.

In a case called United States v. Comstock, the Supreme Court upheld a federal law allowing mentally ill sex offenders to be civilly detained after they have served their sentences if they “would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”  Chief Justice Roberts joined the Court’s four moderates to form a majority, with Justices Kennedy and Alito each filing concurring opinions and Justices Scalia and Thomas dissenting.

So what does this have to do with health reform?  In upholding the civil detention law, the Court effectively rejected right-wing claims that Congress’ powers are too small to allow it to pass the ACA. The Constitution contains an enumerated list of Congressional powers which, although quite broad, are not limitless; and the right’s principal attack on the ACA claims that the power to enact a provision requiring all Americans to carry health insurance did not make the list of Congress’ enumerated powers.

One of Congress’ enumerated powers is the power to “regulate commerce . . . among the several states,” and even Justice Scalia concedes that this power to regulate interstate commerce includes sweeping authority to enact economic regulation.  Faced with such precedent,  the ACA’s opponents have not made the implausible claim that health care reform does not regulate economic activity–indeed, they would have a tough time doing so, after whining for months that the ACA would regulate “1/6 of the economy.”  Instead, they argue that Congress is not allowed to require Americans to purchase insurance because doing so would be an “unprecedented” means of regulating the national economy.  (Their claim that such laws are unprecedented, by the way, is false.)

As today’s Comstock opinion makes clear, however, when Congress exercises one of its enumerated powers, it is free to determine how it wants to do so–even adopting an uncommon or unprecedented means of achieving a legitimate end.  After Comstock, there is simply no force to the right’s claim that certain methods of regulating the insurance market beyond Congress’ enumerated powers:

We have also recognized that the Constitution “addresse[s]” the “choice of means” [] “primarily . . . to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.”

In other words, so long as Congress has chosen an end that is within its power to regulate the national economy, it is allowed to choose what means it wishes to employ in advancing that end.  Congress unquestionably has the power the national health insurance market, so it is allowed to choose a method of doing so that conservatives don’t particularly like.

Since joining the Supreme Court in 2005, Chief Justice Roberts has bent over backwards to advance right-wing causes.  He voted to give banks and drug companies sweeping immunity from state law.  He opened the floodgates to unlimited corporate money in federal elections; and he even claimed that there should be no consequence when a wealth coal baron buys a judge in order to overturn an unwanted court decision.  So the fact that even Roberts rejects conservative arguments against health reform should tell the state officials pushing these lawsuits to stop wasting taxpayer money on frivilous litigation.

Politics

After Serving More Than 30 Years In The Senate, Hatch Says ‘Hell No’ He’s Not ‘Part Of Washington’

Sen. Orrin Hatch (R-UT) with Vice President Dick CheneyEarlier this month, three-term incumbent Sen. Bob Bennett (R-UT) was denied his party’s nomination by conservatives angry at Washington and Congress. Bennett’s loss raised questions of whether Utah’s other longtime senator, Sen. Orrin Hatch (R-UT), was “next in line for a pink slip.”

On her radio show today, Laura Ingraham asked Hatch whether he “would be re-elected” if he “were up for re-election in November.” “Yeah,” said Hatch, saying that he agreed with voters who believe that “these people in Washington are running this country right into the ground.” When Ingraham reminded Hatch that he was “part of Washington,” he denied it:

INGRAHAM: But aren’t you part of Washington?

HATCH: Hell no. I’ve never been. I’ve never considered this a job. I’ve had, people have asked me, they said, “say Senator Hatch, don’t you just love being a U.S. senator?” My constant answer is this. No, I don’t love it at all, but I’m good at it. And I’m here for a reason. And all I can say is I’ve never changed my reason. Now, I am fair. I’ve got a reputation for being fair and honest and decent. But the fact of the matter is, if you get Orrin Hatch on your side and he really gets, he really gets his back up, watch out. It’s just that simple and I’ve done it time after time after time.

Listen here:

Hatch’s claim that he’s “never been” part of Washington is laughable. Hatch, who was first elected in 1976, is the longest-serving senator in Utah history. He has been chairman of both the Judiciary and Labor committees and even ran for president in 2000. He participates in elite Washington events like the Gridiron Club and made an appearance in the movie Traffic in a scene re-creating a Georgetown cocktail party. In 2002, Hatch released a book, Square Peg: Confessions of a Citizen Senator, in which he admitted that living in Washington had “changed” him:

“You’ve forgotten us, Hatch,” one man screamed. “What are you, Hatch? Yelled another. “You’re sure not one of us anymore.”

I felt awed, overwhelmed for a moment by the force of their belief. Were they right? Had I really changed that much? Had I abandoned what — and whom — I stood for?

I thought back to the woman with the five dollars, whom I sometimes imagine sitting in judgment over everything I do as a senator. It’s not like that, I wanted to say — I haven’t forgotten you. Sure, I’ve changed. I’ve spent a quarter of a century in Washington, and over time you learn things. I’m more open to different ideas than I once was, more interested in the substance of a proposal than its author.

In the book, Hatch also said that he believes it is “important” for members of Congress to “move your family to Washington” because their “presence during the week is critical to keeping a sense of balance and perspective.” Indeed, Hatch’s family is now part of the Washington establishment. His son Scott is a partner in a Washington lobbying firm, Walker, Martin & Hatch, that was reportedly started with the senator’s “personal encouragement.”

Noting that Hatch has “been a Senator longer than I’ve been alive,” Matt Yglesias writes that Hatch is “a long-serving veteran legislator with a record you can defend or attack. But he’s definitely part of Washington.”

Climate Progress

NOAA: Hottest April and hottest Jan-April on record

Masters: Record Atlantic sea surface temps in hurricane development region, “The three past seasons with record warm April SST anomalies all had abnormally high numbers of intense hurricanes”

Temperature Anomalies April 2010.

NOAA’s National Climatic Data Center has published its monthly “State of the Climate Report.”  It pretty much matches the NASA data.

An emeritus physics professor writes me cautioning against the use of the word ‘anomaly’ since, “In many people’s mind, the word ‘anomaly’ means something unusual that is a temporary phenomenon.”  He suggests “change,” which is probably better.

Read more

Climate Progress

Breaking: Obama to establish presidential commission to investigate the oil spill in the Gulf of Mexico

On May 4, Daniel J. Weiss, CAP’s Director of Climate Strategy, wrote, “We need an independent commission to investigate the BP disaster.”  Now Weiss reports that the White House is doing just that.  As hundreds of thousands of gallons of oil continue to gush from the bottom of the Gulf of Mexico four weeks after the tragic BP disaster, AP reports that

President Barack Obama will establish the commission by executive order. It will be similar to panels created to investigate the space shuttle Challenger disaster and the nuclear accident at Three Mile Island, according to the official, who spoke on condition of anonymity ahead of a public announcement.

Read more

Security

The Four Major Legal Challenges The ACLU Has Brought Against Arizona’s Immigration Law

june05leb_27_1Today, The American Civil Liberties Union (ACLU) and a coalition of civil rights groups which include the Mexican American Legal Defense and Educational Fund (MALDEF), the National Immigration Law Center (NILC), the National Association for the Advancement of Colored People (NAACP), and others, filed a class action lawsuit in the U.S. District Court for the District of Arizona challenging the state’s new immigration law, SB-1070. The suit, which represents labor, domestic violence, day labor, human services and social justice organizations, along with ten individuals who would allegedly be subject to harassment or arrest, claims that not only is SB-1070 “un-American,” it’s also unconstitutional.

While proponents of SB-1070 maintain that the measure is merely a reiteration of the federal immigration laws that are already in place, the ACLU’s official complaint names a variety of state and federal statutes that it conflicts with. More specifically, the ACLU identifies four basic legal principles that the law contradicts:

1. The Supremacy Clause, Article VI, Section 2, of the U.S. Constitution
The Supremacy Clause mandates that federal law preempts state law “in any area over which Congress expressly or impliedly has reserved exclusive authority or which is constitutionally reserved to the federal government, or where state law conflicts or interferes with federal law.” The complaint claims SB-1070 “is void in its entirety” and also points out that “the Supreme Court has held that the Federal government’s power to control immigration is inherent in the nation’s sovereignty.” According to the ACLU, the U.S. Congress has created a comprehensive system of federal laws that “leaves no room for supplemental state laws.” Additionally, SB-1070 allegedly “imposes burdens and penalties on legal residents not authorized by and contrary to federal law and unilaterally imposes burdens on the federal government’s resources and processes.” Furthermore, federal law does not mandate that local police enforce immigration law, SB-1070 does.

2. Equal Protection and Due Process Clause,
Fourteenth Amendment of the United States Constitution

The Fourteenth Amendment to the U.S. Constitution provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” SB-1070 does not provide any criteria that police should use in determining “reasonable suspicion” that someone is undocumented. In a separate document, the ACLU notes, “apart from appearance, it’s hard to imagine any way a police officer could suspect that someone was not in the country legally.” Despite the fact that the law bans racial profiling, it seems inevitable that certain populations will be asked for documents more often than others simply based on the way they look. Under SB-1070, police officers are also authorized to detain and transfer individuals without appropriate due process procedures — based merely on a belief that they have violated federal civil immigration laws, when state and local officers are not even competent to make such a determination.

3. First Amendment of the United States Constitution
The ACLU believes that the First Amendment protects a person’s freedom of speech and expressive activity. In this sense, both Section 2 and Section 5 of SB-1070 place unconstitutional restrictions on a person’s rights. Section 2 “impermissibly vests” in police officers “unbridled discretion” in establishing “reasonable suspicion” that someone is undocumented. That means that a person’s “gestures, language, accent, clothing, English-word selection, failure to communicate in English, and/or other expressive conduct” could be restrained based on a fear of being being stopped, questioned, detained, arrested, and/or jailed. Section 5, which bans day laborers from being hired or seeking work, further prohibits the expression of availability to work in any “public place.”

4. Fourth Amendment of the United States Constitution
The Fourth Amendment to the U.S. Constitution prohibits “unreasonable searches and seizures.” Meanwhile, SB-1070 requires that police officers conduct unreasonable and warrantless searches and seizures of individuals without probable cause that they have committed crimes. In other words, a naturalized U.S. citizen with a thick accent who was pulled over for speeding could have his car searched and possessions seized simply because he rushed out the door and forgot his wallet.

The ACLU also claims that SB-1070 contradicts the Privileges and Immunities Clause of the U.S. Constitution which provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” another section of United States Code which guarantees that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State,” and Arizona’s own state Constitution which holds that “No person shall be disturbed in private affairs…without authority of law.”

Politics

Rand Paul Wants To Abolish The Americans With Disabilities Act, Citing Fairness ‘To The Business Owner’

Our guest blogger is Joe Sonka, who is reporting on the ground from Kentucky. Sonka also maintains his own blog at Barefoot and Progressive.

U.S. Senate candidate Rand Paul (R-KY), a darling of the tea party movement, has gained notoriety for his extreme views and close relationships with fringe leaders like Alex Jones. Part of Paul’s appeal has been his supposed support of individuals over large interests, like the government. But Paul appeared to reveal his true priorities during an interview with the candidate in Lexington over the weekend.

Paul was asked whether he supports the Americans with Disabilities Act, the landmark 1990 legislation that established a prohibition of discrimination on the basis of disability. Paul said he advocates local governments to decide whether disabled individuals deserve rights. Requiring businesses to provide access to disabled people, Paul argued, isn’t “fair to the business owner.” Later in the interview, when asked if he believes Americans have a right to use the 2nd Amendment to violently overthrow the government, a Paul staffer physically intercepted the recording and shuffled Paul away:

PAUL: You know a lot of things on employment ought to be done locally. You know, people finding out right or wrong locally. You know, some of the things, for example we can come up with common sense solutions — like for example if you have a three story building and you have someone apply for a job, you get them a job on the first floor if they’re in a wheelchair as supposed to making the person who owns the business put an elevator in, you know what I mean? So things like that aren’t fair to the business owner. [...]

Q: Do you think Americans, based on the 2nd Amendment, do you think they have a Constitutional right to violently overthrow the government?

PAUL STAFFER: Alright, we’ll have to stop recording.

Watch it:

While Paul is proud of his radical pro-business agenda, he is less willing to talk about his ties to the militia movement and violent anti-government groups. In March, Paul addressed a gathering of militia groups for an “open carry” rally by the Kentucky state capitol. The rally included groups like the Ohio Valley Freedom Fights, an organization that has openly worked with and defended the Michigan-based Hutaree militia. During his address to the rally, Paul called the armed attendees — many of whom were wearing “I’m A Rand Fan” stickers — his “private security detail.”

randpaulmilitia1

Although he had hoped for support from the tea party movement to boost Republican Party candidates this year, Minority Leader Sen. Mitch McConnell (R-KY) has aggressively opposed Paul’s nomination. As we reported yesterday, while much of the GOP established has organized and encouraged radical tea party protests, they have lost control of insurgent extremist candidates like Paul.

Yglesias

Endgame

If I must play a part in this mess there are things that I have to know:

— Equity analysts have overestimated S&P 500 earnings with remarkable consistency.

— Political risks are hard for markets to grapple with.

Opinion fact: “Perhaps surprisingly, opinions about the terms ‘socialism’ and ‘capitalism’ are not correlated with each other.”

— Peter Beinart talks about his recent piece.

— Nobody seems to have noticed, but the Obama administration is revolutionizing federal drug policy.

— NextBus DC accuracy is slipping.

In honor of regulatory discretion, The Future of the Left’s “I Am Civil Service”.

Economy

Brownback Fires Back At Pentagon In Defense Of Auto Dealer Exemption

This week, the Senate will likely vote on Sen. Sam Brownback’s (R-KS) amendment to Sen. Chris Dodd’s (D-CT) financial regulatory reform legislation, which would exempt auto dealers from regulations set by the proposed Bureau of Consumer Financial Protection. The amendment has some outspoken opponents, including the Obama administration and the Pentagon, which said that having the Bureau police auto lending “will assist us in reducing the concerns [service members] have over their financial well-being.”

Brownback, however, is not backing down, and has fired off a letter to the Department of Defense asking “is it the position of the department that auto dealers pose a specific threat to military readiness?” Brownback also demanded “any records the Pentagon keeps of actual complaints or problems ‘that would document the scope of the threat to readiness.’”

As the Dow Jones Newswire put it, “Brownback’s challenge to the Pentagon is just the latest indication of how intense the auto dealer fight has become.” Indeed, as the New York Times profiled today, “through their lobbying arm, the National Automobile Dealers Association, the dealers have hired a crisis communication team, taken out full-page newspaper advertisements, and organized trips to Washington for dealers…to buttonhole lawmakers and make their case.”

But the Pentagon has already preempted Brownback’s question about military readiness, saying that yes, it does feel that auto dealers ripping off service members has a detrimental effect on troop readiness. As Secretary of the Army John McHugh wrote:

In surveys conducted by the Department of Defense, finances rank among the primary causes of stress for most military Families. As auto loans are often the most significant financial obligations of our soldiers — particularly within the junior enlisted grades — we believe that greater government oversight of auto financing and sales for our Soldiers will help protect them and reduce unnecessary financial strain on our already overburdened Army Families. Soldiers who are distracted by financial issues at home are not fully focused on fighting the enemy, thereby decreasing mission readiness. Protection from unprincipled auto lending enables our Soldiers to concentrate on their primary mission — protecting our great Nation.

The Cambridge Winter Center for Financial Institutions Policy has pointed out that “auto finance is demonstrably susceptible to unfair and deceptive practices” — including mark ups and a host of fees — which are “demonstrably not held in check by private market forces alone.” The National Consumer Law Center has also found that auto financiers routinely charge higher markups on loans to minority borrowers.

According to the Center for Responsible Lending, “consumers spend more than $20 billion a year in excess interest by borrowing through a dealership instead of through a bank or credit union.” But Brownback is still willing to take on the Pentagon and the administration in order to exempt auto dealers from rules that, should financial reform pass, all other financiers will have to follow.

Politics

CA lawmaker proposes bill to keep away TX’s textbooks (which call slavery the ‘Atlantic triangular trade’).

Earlier this year, Texas faced national scrutiny for the efforts of a determined bloc of far-right ideologues on the Texas State Board of Education to rewrite history in the state’s social studies textbooks and curriculum. They succeeded in making students learn about the “conservative resurgence of the 1980s and 1990s,” “documents that supported Cold War-era Sen. Joseph McCarthy,” and the difference “between legal and illegal immigration.” Because of the state’s size, Texas has significant pull in shaping what the nation’s social studies books will say. However, California state Sen. Leland Yee (D) has introduced a bill to keep Texas at bay:

Under Yee’s bill, SB1451, the California Board of Education would be required to look out for any of the Texas content as part of its standard practice of reviewing public school textbooks. The board must then report any findings to both the Legislature and the secretary of education.

The bill describes the Texas curriculum changes as “a sharp departure from widely accepted historical teachings” and “a threat to the apolitical nature of public school governance and academic content standards in California.”

Tom Adams, director of the state Department of Education’s standards and curriculum division, said the Texas standards could make their way into national editions of textbooks, but those aren’t used in California. “Our main concern is whether materials meet California’s standards,” he said. “There’s nothing in our review process that says we should be following Texas or anything like that.”

A new report in the Guardian reveals that the Texas State Board of Education also “dropped references to the slave trade in favour of calling it the more innocuous ‘Atlantic triangular trade,’ and recasts the Israeli-Palestinian conflict as driven by Islamic fundamentalism.” The board will be meeting again this week and conservatives have promised to “keep working to the last moment to correct years of liberal bias in history classes.”

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