When Alabama Gov. Robert Bentley (R) and Attorney General Luther Strange (R) both called for changes to the state’s anti-immigrant law last year, it was a hopeful sign that the state might roll back the law’s most harmful effects. According to one projection, the state GDP could decline by $2.3 to $10.8 billion because of HB 56, and the state could lose up to 140,000 jobs.

And state Sen. Gerald Dial (R) agreed with the governor and attorney general and other legislators who called for changes to the law. “It’s just common sense. Let’s step up and say we’ve made some mistakes,” Dial said in November. Now he has filed a bill that proposes some of the broadest changes to HB 56 that, while far from perfect, would address some of the most harmful aspects of HB 56:

• Would Not Require Schools To Collect Data: Dial’s bill removes a provision that requires schools to collect data about the citizenship or legal resident status of newly enrolled students. Following the implementation of HB 56, schools reported a spike in absenteeism among Latino students because some current students feared that their parents could be deported if they were asked about their citizenship.
• Redefines “Business Transaction”: HB 56 includes a measure that prevents the state from entering into a “business transaction” with undocumented immigrants. Some public utility companies took this to mean that they could not provide service to anyone who cannot prove they are a citizen or legally in the United States. It effectively made it a felony for undocumented immigrants to take a bath in their own homes. Dial’s bill redefines “business transaction” more narrowly to include issues related to driver’s licenses or non-driver identification cards, license plates, or business licenses.

Dial’s bill also repeals a provision that would deny bail to undocumented immigrants, but he does not propose any changes to a section of the law that requires Alabama police officers “to ask for immigration papers from anyone they come in contact with who looks or sounds foreign.” The Supreme Court will hold a hearing this spring on SB 1070, Arizona’s extreme immigration law with the same “papers, please” requirement as Alabama’s law.

Fully repealing the state’s immigration law — Democrats have filed bills in the Alabama House and Senate to do just that –would be the best option for Alabama. But that option is unlikely while Republicans control the Alabama legislature along with a Republican governor. Nevertheless, Dial’s bills are an important admission that the state erred when enacted HB 56′s declaration of war on immigrants — the state should not hesitate one second before rolling back as much of the law as it can.

The most interesting thing about today’s decision striking down California’s unconstitutional Proposition 8 isn’t the fact that supporters of marriage equality won — that result was easy to predict from the judges’ comments during oral arguments more than a year ago. Rather, the most interesting thing about today’s decision is how narrow it is. The court crafted a rationale that applies to Prop 8 and probably only applies to Prop 8. While the opinion is firmly rooted in precedent, it expressly declines to consider the sweeping rationale employed by District Judge Vaughn Walker that is also grounded in precedent and the Constitution.

In 1996, the Supreme Court struck down an anti-gay Colorado constitutional amendment that stripped many gay men and lesbians of their existing legal rights in a case called Romer v. Evans. Today’s opinion relies heavily on Romer, honing in on the fact that Prop 8 stripped gay couples of a right they already enjoyed prior to its enactment — the right to marry a person of their choosing. As the Ninth Circuit explains:

The is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law. In 1992, Colorado adopted Amendment 2 to its state constitution, which prohibited the state and its political subdivisions from providing any protection against discrimination on the basis of sexual orientation. . . . The Supreme Court held that Amendment 2 violated the Equal Protection Clause because “[i]t is not within our constitutional tradition to enact laws of this sort” — laws that “single out a certain class of citizens for disfavored legal status,” which “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” . . .

Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Proposition 8 “single[s] out a certain class of citizens for disfavored legal status . . . .” Like Amendment 2, Proposition 8 has the “peculiar property” of withdraw[ing] from homosexuals, but no others,” and existing legal right — here, access to the official designation of “marriage” — that had been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place.

In other words, the court finds a constitutional violation that is unique to the state of California — only California once extended equal marriage rights to gay couples, then yanked them away through a subsequent amendment.

There are two upshots to this California-specific reasoning. The first is that it reduces the likelihood that the Supreme Court will hear the case, although Supreme Court review remains very highly likely. Had the Ninth Circuit applied Judge Walker’s much broader reasoning, the implication would be that every single state has a constitutional obligation to marry gay couples. The justices typically hear cases that present an exceptionally important legal question of national importance, and such a broad decision would certainly qualify. Today’s decision, by contrast, is narrow enough that there is an off chance the justices could pass on it.

The other upshot is that today’s opinion gives an out to the justices in case a majority of them find Prop 8 constitutionally offensive but aren’t yet ready to kick off a political firestorm by ordering Alabama to marry same-sex couples. The opinion is, at its heart, a decision that discretion is the better part of valor, and that the Constitution is best served by banking an easier victory today and putting off the big fight until tomorrow. Gay couples in Alabama — and indeed the Constitution itself — may suffer longer for that decision, but today’s decision also maximizes the likelihood that Proposition 8 will stay dead.

Last night, the Obama campaign announced that it would not “unilaterally disarm” in the face of the Supreme Court’s Citizens United decision unleashing a flood of unlimited corporate campaign spending and paving the way for unaccountable Super PACs. In an email to supporters, the campaign emphasized that President Obama opposes Citizens United and supports strong action “by constitutional amendment, if necessary” to roll back its license for wealth individuals and corporations to buy elections.

In a perfect world, the president’s campaign would never make this announcement, and Obama’s supporters should not be naïve about what this means. When casino magnate Sheldon Adelson and his wife spend $10 million in an attempt to buy Newt Gingrich the presidency, it is impossible to imagine that Adelson isn’t also buying himself special access to the president in a Gingrich Administration. Likewise, when big oil companies pump $1.2 million into Mitt Romney’s Super PAC, it is impossible to imagine that they don’t expect some quid for their pro quo. President Obama is somewhat immunized from this kind of influence buying because, as a second term president, he won’t need to worry about needing his big donors again to get reelected. But, at the very least, every policy a second term Obama supports that benefits a big dollar supporter will now open him up to allegations of corruption.

Ultimately, however, President Obama made the only choice he could. In 2008, all presidential candidates spent a record setting $1.7 billion during their campaigns. Yet this amounts to less than one fifth of what Exxon earns in three months, and it is less than 8 percent of Adelson’s massive fortune. If just one major corporation or modern day viscount decides to go all in against Obama, they could effectively drown out the president’s ability to complete in this election. The American people deserve a choice in 2012, not an auction attended only by big money Republicans.

It’s important that the Obama campaign does not decide that last night’s decision requires them to stop campaigning hard against Citizens United and the flood of money it has injected into our system — especially because his opponent will certainly advocate for a very different vision of how democracy should work. This must include throwing his full weight behind state ballot initiatives and legislation that will mitigate the harmful effects of the Supreme Court’s decision until the day when that decision can be overruled.
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As Judge Laurence Silberman, a leading conservative who once received the Presidential Medal of Freedom from George W. Bush, wrote last November, the case against the Affordable Care Act has no basis “in either the text of the Constitution or Supreme Court precedent.” Surprisingly, conservative superlawyer Paul Clement’s brief on behalf of the several states arguing that the Affordable Care Act is unconstitutional only really addresses one of these problems.

The most striking thing about the brief is how light it is on citations to cases. Normally, a brief filed in the Supreme Court will be absolutely riddled with case citations in an attempt to demonstrate that the result supported by the brief flows naturally from existing precedent. Clement’s brief, by contrast appears barren by normal standards. His entire summary of his argument includes only three citations to cases, and only one of those cases was decided after 1820.

Instead, much of Clement’s brief reads as if it were an exercise in how the Constitution could have been interpreted if it had never once been examined in the first 225 years of the Republic. He opens the brief with a lengthy argument that just one word in the Constitution’s text forbids Congress from passing a law requiring most Americans to carry health insurance (this passage omits citations, although there are no cites in the bolded part of the quote):

The Constitution grants Congress the power “[t]o regulate Commerce … among the several States.” While the term “commerce” has not always been “marked … by a coherent or consistent course” of interpretation, the term “regulate” has: For nearly two centuries, the Court has defined “the power to regulate” as the power “to prescribe the rule by which commerce is to be governed.” . . . It is axiomatic that the power to “regulate commerce” presupposes the existence of commerce to be regulated. It is not the power to compel individuals to engage in commerce so that Congress has something to regulate The difference between the two is self-evident. The power to regulate is far more modest and allows Congress to reach individuals only if they decide to engage in conduct that constitutes (or substantially affects) interstate commerce..

Unfortunately, for Clement, however, the Constitution has been examined many times by the Supreme and other courts, and it is clearly and unambiguously false that there is two hundred years of precedent defining the word “regulate” the way Clement describes it. To the contrary, Chief Justice John Marshall — a man who, unlike Clement, was actually involved in ratifying the Constitution — disagreed strenuously with Clement’s reading of the document.

In Marshall’s words, there is “no sort of trade” that the words “regulate Commerce” do not apply to. Moreover, Marshall wrote in the very first Supreme Court case interpreting Congress’ power over interstate commerce, the power to “regulate” something “implies in its nature full power over the thing to be regulated.”

Given John Marshall’s reading of the Constitution, it’s pretty obvious why Clement’s argument falls apart. If the United States can regulate any form of trade, that includes power over trade in health care services. Moreover, if this regulatory power includes “full power over the thing to be regulated” than Congress may do so however it chooses. That includes the power to require most Americans to pay for their health care through insurance rather than waiting until they become sick and then hoping they have enough money squirrelled away to ward off bankruptcy.

No doubt anticipating this flaw in his argument, Clement responds by splitting a very fine hair:

The federal government attempts to minimize the lack of constitutional grounding for a mandate to purchase health care insurance by recharacterizing it as something it is not: a “regulat[ion of] … the way in which individuals finance their participation in the health care market.” That is simply not true. The mandate does not regulate or even speak to how “individuals finance their participation in the health care market.” Nowhere in the mandate—or anywhere else in entire 2,700 pages of the ACA—did Congress require individuals to actually pay for health care services with the insurance that the mandate requires them to obtain. The mandate neither addresses the “health care services” market nor regulates the method of financing purchases in that market. All the mandate does is force individuals to purchase insurance, which they are free to use or not use in the event that they actually need health care services.

In other words, Clement argues, the ACA doesn’t actually regulate how people purchase their health care because it merely ensures that they have health insurance. It doesn’t actually require people to use it. Somewhere out there, Clement must assume, is a person who would rather buy insurance and pay for their own health care out of pocket rather than simply allowing the insurance company to cover their costs.

One doesn’t exactly have to have a Nobel Prize in Economics to understand why this argument is ridiculous.