Jeff Sessions Sets Back the Clock

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Pay no attention to what the media says about how undermined Jeff Sessions is. POTUS may bait him publicly via tweet, but in private, at the DOJ, Sessions is a man on a mission to roll back civil rights, and that’s just what he’s doing.

Take what he did this July 3, quietly rescinding two dozen documents intended to make American institutions less racist.

The guidelines the AG scrapped included Obama-era guides on affirmative action that urged colleges to promote diversity for the benefit of the campus and the public good. Others reminded employers that asylum seekers have every right to work, and still others sought to head off another mortgage meltdown by warning brokers not to give predatory home loans to people without going through the fine print.

And Obama-era guidelines weren’t the only ones Sessions withdrew. He also rescinded George W. Bush-era documents that reminded all Americans after 9-11 that discrimination on the basis of national origin is wrong.

The AG reached even further and nixed a Gerald Ford-era guide intended to keep kids out of adult prisons—and out of prison entirely for age-related offenses like truancy and drinking.

Rescinding these documents didn’t make any new laws or repeal any old ones; the guides just sought to make existing law better understood. However, earlier this summer, the AG didwade into the law itself when he raised the bar for asylum seekers—mostly women—and took immigration decisions into his own hands and out of the courts.

In early June, Sessions ruled that domestic violence was, like gang crime, a “private crime,” meaning its survivors are not considered members of any particular, at-risk social group. In an already decided case, he called on asylum seeker Aminta Cifuentes to prove that the Guatemalan government actively condoned what he called “private violence” when state police and law enforcement refused to intervene, even after her rapist husband doused her in turpentine and tried to set her alight.

In so-doing Sessions reversed a prior ruling on her case by an immigration appeal board.

On July 3, Sessions called the guidelines he rescinded outdated. So what date does he think this is? The eve of a pro-white, pro-male, anti-immigrant, anti-democratic, slave-owning nation? Just how far does AG Sessions want to set back the clock?

By Laura Flanders/CounterPunch

Posted by The NON-Conformist

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Obamacare Critics and Defenders Team Up Against the Trump Administration’s Refusal to Defend the Health Law in Court The DOJ’s argument for striking down the health law’s preexisting conditions rules is weak.

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Last week, in response to a legal challenge filed by Texas and a group of conservatives states, the Trump administration took an unusual step by announcing that it would not defend Obamacare in court. Instead, the Trump administration took the position that the health law’s was unconstitutional, and that its preexisting conditions regulations should be struck down.

The federal government’s suit has drawn rebuke from some unlikely quarters. An attorney with 20 years of experience at the Justice Department resigned this week as a result of the administration’s position. Sen. Lamar Alexander (R-Tenn.) said it was “as far-fetched a legal argument as I think I’ve ever heard.” Senate Majority Leader Mitch McConnell distanced his party from the argument, saying that “everyone” in the Senate favored maintaining coverage for people with preexisting conditions.

Even Health and Human Services (HHS) Sec. Alex Azar, who signed the brief in question, described it as a “constitutional and legal position, not a policy position.”

It doesn’t appear to be much of one.

Among the more unusual responses to the administration’s argument came today in the form a brief filed by five academic experts with wildly divergent views about Obamacare. The brief is signed by Jonathan Adler, Nicholas Bagley, Abbe Gluck, Ilya Somin, and Kevin Walsh. Bagley and Gluck have both defended the health law’s legality in the past. Walsh has published several analyses of the legal arguments surrounding Obamacare. But Adler and Somin, notably, are libertarian-leaning law professors who have been quite critical of the health law over the years. (Both are also contributors to the Volokh Conspiracy, which is published at Reason.com.)

The opening of the brief stresses that the signers have spent the last several years disagreeing with each other, in some cases quite forcefully, about the legal and constitutional merits of the health law. The brief takes no position on the mandate itself. But in this case, they all agree that the federal government’s argument for striking down the law’s preexisting rules is, legally speaking, pretty terrible.

Understanding the brief requires a little bit of background. In 2012, the Supreme Court ruled that although Obamacare’s mandate was unconstitutional when viewed as a purchase requirement or economic command, it could stand because it raised revenue and therefore functioned as a tax. But last year, as part of tax reform legislation, Congress eliminated the penalty for not complying with Obamacare’s individual mandate. The mandate remained on the books, but for all practical purposes it had been repealed. And it no longer raised any revenue.

As a result, a group of conservative states, led by Texas, challenged the legality of the (now unenforceable) mandate, and further argued that because it is the centerpiece of the health law, all of Obamacare should be struck down.

This is an argument about what’s known as “severability” — whether the remaining parts of a law should be struck down if a court finds one provision to be illegal.

The Trump administration’s argument does not go quite as far as the states. It agrees that the mandate is now unconstitutional, and takes the position that although much of the law, including the Medicaid expansion and private insurance subsidies, can stand, the preexisting conditions rules should be tossed along with the mandate, because the mandate and the preexisting conditions rules are not severable. To back up its argument, the administration cites findings associated with the statute of Obamacare (that were also cited by the Obama administration in court) declaring that the mandate and the preexisting conditions rules are a bundle that should not be separated.

For critics of Obamacare, there is something naturally appealing about this argument: It uses the text of the health law, and the Supreme Court’s decision to uphold it, to attempt to knock it down. I have been open to arguments along these lines under the Obama administration, and I think they made sense at the time.

The problem, as the new brief points out, is that determining severability is about determining congressional intent. And the current Congress has made its position on the matter quite apparent. Often, this requires some sort of guessing. But at this point, we know exactly what Congress thinks about the law it chose to amend, because it very clearly chose to eliminate the mandate penalty while leaving the preexisting conditions rules in place. That is about as clear a statement of intent as you can ever imagine from Congress.

The brief argues that the administration’s argument relies on “time shifting” to make its case, and that the administration’s case effectively gets severability backward by “[disregarding] the clearly expressed intent of Congress and seek judicial invalidation of statutory provisions that Congress chose to leave intact.”

The findings about severability that the administration cites to back up its arguments about the preexisting were made by a different Congress, prior to the elimination of the mandate penalty and other alterations to the law. They were made in the context of what is now, essentially, a different law. They don’t apply.

I have been a critic of Obamacare for years, and I continue to believe there are many problems with the law. The preexisting conditions rules, while popular, distort the individual market and have contributed to rising premiums in the exchanges. (The popularity of those rules, of course, is one reason why Republicans haven’t touched them, and why GOP officials are distancing themselves from the policy implications of their argument.) But critics of the health law do themselves no favors by signing on to a fundamentally weak legal challenge like this.

The bigger problem with this case is that it has the potential to serve as a substitute for a policy agenda. Republicans still need a broad health policy vision that goes beyond simply attacking Obamacare. But as long as they are basing their hopes on a legal manuever as poorly thought out as this one, that’s not something we’re likely to see.

By Peter Suderman/reason

Posted by The NON-Conformist

‘Everything’s on the line’: AT&T’s showdown with DOJ over Time Warner finally gets a decision today

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A federal judge is expected to rule Tuesday on whether to block AT&T’s $85 billion Time Warner merger, in what has become America’s most closely watched antitrust trial in decades.

The opinion by Judge Richard Leon could determine AT&T’s future in digital entertainment as the company seeks to go toe-to-toe with tech titans such as Facebook, Google and Netflix. But the stakes are equally high for the Justice Department, which has not litigated a case of this kind since the Nixon administration. A court victory for the government, analysts say, could symbolize the beginning of a tough new era in antitrust enforcement. But an AT&T win could give pause to regulators — and perhaps deter them from blocking mergers in the future that might otherwise be deemed anticompetitive.

Though the Justice Department has sought to tamp down concerns about the AT&T case being a bellwether, analysts widely anticipate more deals to be announced in the event of an AT&T court victory, particularly mergers involving corporations that primarily operate in different industries. These types of so-called vertical deals are becoming more popular. In recent months, Verizon has purchased the digital media companies AOL and Yahoo. Amazon.com expanded its grocery business by buying Whole Foods. (Amazon chief executive Jeffrey P. Bezos also owns The Washington Post.) Comcast, meanwhile, is gearing up to fight Disney for control over 21st Century Fox.

“Everything’s on the line now for the Department of Justice,” said Gene Kimmelman, a former DOJ antitrust official who now leads the consumer advocacy group Public Knowledge. “They either come out as enormous victors … or they’ll face an avalanche of new transactions if they lose this case.”

Analysts predict a wide range of possible outcomes in the trial. Leon could determine the merger poses a competitive threat and block the deal outright, siding with the Justice Department. He could rule for AT&T and approve the entire acquisition without conditions, making it possible for the deal to close by June 18. Or he could strike a middle ground, imposing his own changes to the deal or asking the two sides to help him tweak it.

No matter how he rules, the full implications will take time to digest — and will likely hold implications for a string of other mergers and acquisitions on the horizon. Leon has previously said to expect at least a 200-page written opinion.

The lengthy decision reflects the grueling six-week legal assault that government lawyers mounted against AT&T and Time Warner this spring in a dim, windowless Washington courtroom. Both AT&T and the Justice Department declined to comment for this story.

The merged firm, prosecutors argued, would anticompetitively unite AT&T’s massive distribution infrastructure — its cellular and wired broadband networks — with Time Warner’s premium content including HBO, Warner Bros. and Turner Broadcasting, whose assets include the cable channels CNN, TBS and TNT.

AT&T executives defended the merger in court as a major strategic shift for the telecom giant, one that could prove as significant as the company’s decision more than a decade ago to enter the market for broadband and mobile data. In reinventing itself for an age of streaming media, AT&T aspires to deliver more television content over Internet connections to mobile and digital devices. With the viewing data it gathers from smart TVs, computers, tablets and smartphones, AT&T plans to build a targeted advertising empire resembling that of the Web’s biggest ad giants.

That effort could be aided by another major milestone this week: The official repeal on Monday of the federal government’s net neutrality rules. The rules, targeted for elimination by the Federal Communications Commission in a vote last year, had banned providers like AT&T or Verizon from prioritizing their own content over that of other websites. And they had laid the foundation for more stringent — though now also repealed — privacy regulations governing ISPs’ handling of customer data.

Winning the antitrust case could allow AT&T to capitalize on that deregulation, analysts say.

“Consumer groups are worried that the court will give AT&T powerful new content, and that the FCC will let them monetize it in anticompetitive ways,” said Paul Gallant, an industry analyst at Cowen & Co. “But investors are more sanguine. They like the hedge of AT&T owning content.”

Antitrust attorneys litigating the Time Warner case relied on complex economic models and testimony from AT&T’s competitors to outline a nightmare scenario in which AT&T could allegedly use its newfound control over Turner Broadcasting to unfairly benefit DirecTV, AT&T’s own subscription television service.

Turner’s control over live sports, news and other desirable programming would encourage AT&T to seek more money for that content when licensing it to competing TV services, the Justice Department argued. Those higher prices would allegedly be passed along to consumers to the tune of hundreds of millions of dollars per year. Meanwhile, the attorneys said, DirecTV would reap rewards by luring away any customers dissatisfied with the price hikes at other cable companies.

“AT&T would not want Time Warner content distributed in ways that increase competitive pressure on DirecTV,” the government wrote in its closing brief to the court.

Attorneys for AT&T and Time Warner lashed out at the government’s antitrust claims, calling them “preposterous.” Thanks to new targeted advertising revenue, AT&T argued, the deal would lead to price decreases for TV viewers, not increases. And to highlight its good faith in content negotiations, AT&T pointed to 1,000 letters it sent to rival TV services last year committing to an arbitration process after the merger, in the event those competitors felt they were being overcharged for Time Warner content. Opponents of the deal said the arbitration offer was insufficient, though in his questioning in court, Leon expressed significant interest in it.

AT&T’s legal team sought to dismantle the Justice Department’s economic analysis of the deal, poking holes in research done by the agency’s star witness, a University of California economist named Carl Shapiro. Shapiro’s analysis failed to consider enough real-world examples of programming disputes, AT&T argued, instead drawing on surveys and long-term projections to arrive at the conclusion that consumers will be harmed by the merger.

Hanging over the trial was also the political shadow of President Trump, who has publicly and repeatedly criticized the merger as concentrating too much power “in the hands of too few.” Arguing that it was being unfairly singled out for punishment, AT&T briefly demanded that the Justice Department hand over White House communications logs that could prove whether Trump inappropriately directed the agency to block AT&T’s merger. But Leon denied that request, focusing narrowly instead on the core antitrust arguments in the case.

The high-profile case is widely viewed as a bellwether for other mergers waiting in the wings. Should AT&T be allowed to buy Time Warner, analysts say an arms race will follow in which companies of all stripes will seek to consolidate with other businesses. An acquisition involving 21st Century Fox is already in the works, with Comcast and Disney poised for a bidding war over Fox’s lucrative film and TV studios, cable networks and other assets. Meanwhile, T-Mobile and Sprint have announced a merger of their own.

Wall Street will be looking for clues in the AT&T decision as to whether the government is likely to challenge those deals.

“At the simplest level, the market will draw a conclusion as to whether this administration is laissez faire or interventionist when it comes to big deals,” he said.

By Brian Fung/WAPO

Posted by The NON-Conformist

‘We’re after leakers, not journalists’: DOJ defends crackdown on leaks of classified info

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US Deputy Attorney General Rod Rosenstein has said his office is to “respond appropriately” to the issue of increasing leaks in the US, and warned there is a possibility that reporters, not just their sources, might be held accountable.

“We don’t prosecute journalists for doing their jobs. We look at the facts and circumstances of each case and we determine whether somebody has committed a crime and whether it’s appropriate to hold them accountable for it,” Rosenstein said in an interview on ‘Fox News Sunday.’

However, he said, there might be some exceptions where a reporter might become a suspect in a leak case as well as its source.

“Generally speaking, reporters who publish information are not committing a crime. But there might be a circumstance where they do. You know, I haven’t seen any of those today, but I wouldn’t rule it out in the event that there were a case where a reporter was purposely violating the law, then they might be a suspect as well,” he said.

A new unit within the FBI has been created “to focus on those leaks,” he said, adding that the government is “going to devote whatever resources are necessary to get them under control.”

“Criminal prosecution isn’t the only way to prevent leaks, but it’s an important part of the solution,” he said.

“We’re after the leakers, not the journalist,” the deputy attorney general claimed, adding that the Justice Department has not yet revised any policies with regard to reporters.

Earlier this week, his boss, Attorney General Jeff Sessions, described the issue of leaks in the country as a threat to national security, warning of a possible crackdown on those who are spreading information illegally.

“We respect the important role that the press plays and will give them respect, but it is not unlimited,” Sessions warned, promising to step up legal procedures to hold journalists accountable for disseminating sensitive information.

“One of the things we are doing is reviewing policies affecting media subpoenas” which would force journalists to testify in court and potentially produce evidence, Sessions explained.

Under the US’ shield law, journalists are protected under “reporters’ privilege,” which gives them the legal right not to reveal confidential sources or other information that would hinder news gathering activity.

The attorney general also revealed that the Justice Department has tripled the number of investigations into unauthorized leaks, charging four people with crimes so far. The department has received almost as many criminal referrals over leaks as over the past three years combined, Sessions told reporters Friday.

Sessions also noted that it is the responsibility of government agency workers to stop leaking information which concerns national security. “This culture of leaking must stop,” Sessions stated.

From RT

Posted by The NON-Comformist

Is Ending Affirmative Action the Real Objective Behind the Justice Department’s Look at College Admission Practices?

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The New York Times reported Tuesday that the Justice Department’s civil rights division is preparing to sue universities for using affirmative action to practice anti-white discrimination and is even seeking lawyers for the effort. Interested attorneys reportedly have until Aug. 9 to apply.

But late Wednesday, Justice Department officials denied it would pursue this controversial course of action, and claimed its inquiry was limited to only one complaint. Justice Department spokeswoman Sarah Isgur Flores told the AP that the job ad referred to a single 2015 complaint filed by a group of Asian-American organizations that had sued Harvard University and other Ivy League schools for discriminating against high-performing Asian-American students in admissions.

Many civil rights groups are skeptical of the Justice department’s denial, conservative Attorney General Jeff Sessions has a history of anti-Black bias that once cost him a judgeship for allegedly using a racial slur. In a statement Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, Inc., stated “Affirmative action is rooted in our nation’s fundamental commitment to equality, a commitment this Administration woefully lacks and has expressed hostility towards.”    Others point out that if the Trump administration is anything like George W. Bush’s administration, there’s little reason to believe his cabinet will actually direct the Justice Department to fight for civil rights for people of color. Spokeswoman Flores said the agency “is committed to protecting all Americans from all forms of illegal race-based discrimination.” But if Trump’s ideas on immigration, police misconduct and the wrongfully convicted are any indication, it’s unlikely that “all Americans” includes the marginalized Black and brown people who desperately need affirmative action just to get their foot in the door.

Flores specified that the Justice Department had no intentions of conducting a broad investigation into the nation’s affirmative action policies. But by the time Flores explained the Justice Department’s plans, the New York Times report had already renewed a national dialogue about affirmative action that dates back to the 1960s, when the term “affirmative action” was coined in 1961 and when President Lyndon Johnson issued Executive Order 11246 in 1965 requiring federal contractors to use affirmative action to diversify the workforce.

Arguably, the biggest misconception about affirmative action is that whites don’t benefit from it. But white women, and by extension their largely white husbands and sons, do benefit from diversity policies. In 2006, Columbia University law professor Kimberlé Crenshaw pointed out in the University of Michigan Law Review that white women are affirmative action’s primary beneficiaries in the area of employment.

There’s also the idea that whites stand to benefit the most if affirmative action is eliminated. But in the late 1990s, when California, Florida and Texas barred the use of race as factor in college admissions (Texas’ ban was reversed in 2003 and later challenged again), the number of Asian-Americans in these institutions rose, while the number of whites declined. At the University of California, San Diego, first-year white students dropped from 56.9 percent in 1990 to 33.3 percent in 2005, researchers found. (California banned affirmative action in 1996.) Demographic shifts mean that universities across the nation, with and without affirmative policies, are growing more diverse.

“For those who campaigned for the elimination of affirmative action in the belief that it would advantage the admission of white students, the trend … can hardly be satisfying,” the researchers said.

Affirmative action foes also overlook the fact that in the job market, black workers receive more scrutiny than their white colleagues and are more likely to be fired from their jobs for making the same kinds of mistakes that white employees do, according to the National Bureau of Economic Research. This finding is just one of many reasons that affirmative action is needed to level an uneven playing field. But another finding concerns Abigail Fisher, the Texas student who sued the University of Texas at Austin, the state’s flagship public university, for not admitting her in 2008. In a case that went before the U.S. Supreme Court last year, Fisher argued that students of color had edged her out of a slot at the competitive campus. But it turned out that UT Austin also rejected 168 Black and Latino students with better scores than Fisher. The Supreme Court upheld UT Austin’s holistic admissions policy.

For now, there appears to be a wait and see attitude as to what next for the Trump administration on a broader attack on affirmative action policies, but that doesn’t mean supporters of the practice should breathe a sigh relief. The Obama administration made a concerted effort to strengthen the Justice Department, hiring attorneys with experience fighting for civil rights. The first Black president’s approach to the department differed markedly from George W. Bush’s administration. According to the New York Times, “its overseers violated Civil Service hiring laws … by filling its career ranks with conservatives who often had scant experience in civil rights law. At the same time, it brought fewer cases alleging systematic discrimination against minorities and more alleging reverse discrimination against whites, like a 2006 lawsuit forcing Southern Illinois University to stop reserving certain fellowship programs for women or members of underrepresented racial groups.” With a shift back to a right-wing agenda under the Trump administration, it seems only a matter of time before affirmative action becomes the next target in undoing the priorities of the Obama administration.

By Nadra Nittle/AtlantaBlackStar

Posted by The NON-Conformist

Report: DOJ, FBI Admit Years of Flawed Testimony From Forensic Unit

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The Justice Department and FBI have formally acknowledged that nearly every examiner in the FBI Laboratory’s microscopic hair comparison unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000, The Washington Post reported.

Image: Getty

Twenty-six of the 28 examiners overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, the Post reported Saturday, citing information from the National Association of Criminal Defense Lawyers and the Innocence Project.

 The organizations are assisting the government with the post-conviction review of questioned forensic evidence and provided the statistics under an agreement with the government to release results after the review of the first 200 convictions, the Post reported.
Posted by Libergirl

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