WASHINGTON, June 29, 2014 – Primaries, the Supreme Court, and immigration were three of the top political stories this week.
The Supreme Court issued some important opinions this week. Among the most significant were these four:
1. In a unanimous ruling, the Court affirmed the Senate’s role in the appointment process. The Court ruled in National Labor Relations Board v. Noel Canning that the president cannot make appointments when the Senate is in pro forma session.
The Senate had put up a furious fight against three nominees for the NLRB, on policy grounds. They engineered the pro forma sessions specifically to prevent the president from making those appointments in recess. The Court told the president that the Senate alone decides when it is in session and when it is not.
2. In its ruling on McCullen v. Coakley, the Court unanimously struck down a Massachusetts law that created 35-foot buffer zones around abortion clinics. It sided with abortion opponents who argued that the law imposed unconstitutional restrictions on their ability to counsel and offer assistance to women entering the clinics.
Justice Roberts emphasized the historical significance of streets and sidewalks as sites for First Amendment activities. The Court ruled that the “buffer zone” law isn’t a restriction on content, but only on location. This leaves the possibility that other buffer-zone laws would be subject to a less stringent test than a law targeting content would receive, and could explain the unanimous decision.
3. The Court’s decision in American Broadcasting Cos. v. Aereo was, without a doubt, one of the worst opinions issued by the Court this week. Justice Breyer wrote an opinion for the 6-3 majority that was almost without logic, and that created a useless test for determining a violation of the Copyright Act. As one wag put it, the Court doesn’t know what the Copyright Act restricts, but whatever it is, Aereo was doing it.
This opinion puts a great deal of technological innovation in the computing and broadcast fields into a legal gray zone, making it possible that even cloud storage could come under legal attack. This was a rank piece of judicial activism in which the Court acted to fill a legal loophole left by Congress, essentially interpreting law that does not exist, as Justice Scalia observed in his dissent.
4. The Court ruled unanimously on Riley v. California that the Fourth Amendment applies to cell phones. The police must get a warrant before searching a cell phone seized during an arrest. Chief Justice Roberts wrote, “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.”
By concluding that data is different from information kept in physical notebooks, the Court delivered a possible challenge to the NSA’s bulk collection of personal data and access to cloud-based data. This is due both to the quantity of information that can be held by digital devices, and also to the types of data. Access to your cellphone allows access to other remotely stored data with a flick of a finger.
The collection of metadata under the “third-party rule” also came under attack, a fact that suggests the government is fighting a losing battle in litigation over NSA domestic surveillance programs.
The Court is expected to release its opinion in the Hobby Lobby case on Monday. Unlike its ruling in McCullen, we should not expect that one to be unanimous.
Tuesday’s primaries produced some surprise and outrage. The outrage came primarily from Mississippi conservatives, who were upset that incumbent Senator Thad Cochran openly appealed to Democrat voters in his runoff against Tea Party candidate Chris McDaniel. An estimated 25-35,000 of them heard his appeal, delivering him a close victory of only about 5,000 votes.
CDN columnist Eric Golub observed that it’s mind-numbing that Republicans would be upset about an appeal to black voters, but CDN columnist Al Maurer responded that it was horrifying that in a race between two Republicans, one (Cochran) would play the race card. The question now is whether Cochran has alienated enough conservatives to make his certain victory in November uncertain.
Tea Party conservatives were also disappointed in Oklahoma, where Rep. James Lankford defeated T.W. Shannon and a crowded field for the right to run for retiring Senator Tom Coburn’s seat. Lankford had directed one of the largest Baptist summer camps in the country, while Shannon is the youngest and first black speaker of the Oklahoma house. Shannon is also a member of the Chickasaw Nation.
Shannon had the endorsements of Sarah Palin and Senators Ted Cruz, R-Texas, and Mike Lee, R-Utah. They weren’t enough to sway it his way, however.
Democrats attempted mischief in the Republican primary for the Colorado gubernatorial race, channeling $500,000 worth of assistance to Tom Tancredo. Tancredo came in second to Bob Beauprez, while two other relatively conservative candidates came in third and fourth. Democrats believed that Tancredo would lose easily to Governor Hickenlooper.
New York’s Charlie Rangel won his primary race to run again for his congressional seat. Rangel, who has been in Congress since 1970 and who plans to retire after this term, ran under a cloud from his ethics violations – President Obama pointedly refused to endorse him – and faced changing demographics in his district, which has gone from primarily black to primarily Hispanic. He narrowly defeated Adriano Espaillat, a Dominican who came within a thousand votes of defeating Rangel in 2012.
After his victory, the ethically challenged Rangel showed once again why he is so popular with political writers. He failed to report an all-expenses-paid trip to China last August. A source close to Rangel claimed that the failure to report was an oversight in the heat of a political contest, “an honest mistake.”
In immigration news, House Minority Leader Nancy Pelosi went to the Texas border, where she declared that “We are all Americans – north and south in this hemisphere.” She also referred to the flood of unaccompanied minors arriving at the border as a “humanitarian opportunity.” Overcome by the sweet innocence of youth, she expressed the wish to take all the children being held at the border home with her. Charlie Rangel, after two close calls at the hands of a Hispanic candidate in an increasingly Hispanic district, might have warned her against it.