Austin's Diary
  • Full name: Austin

  • Law student at Boston College, former campaign fundraiser and volunteer organizer for a Congressional campaign in Brooklyn, dog owner, progressive.

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  • AIM: AustinTBG

April 29th, 2007

Partial Birth Failure?

“I also note that whether the [Partial Birth Abortion] Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.” –Justice Clarence Thomas, concurring in Gonzales v. Carhart (see here for all opinions)

“Justice Thomas in his concurrence suggests that he might have voted to invalidate the statute if a Commerce Clause challenge had been raised. In other words, if the Respondents [Planned Parenthood, Carhart, et al.] had raised a Commerce Clause challenge… the Court might well have invalidated the statute, even though there would have been no majority of the Court for any particular ground of invalidation….” –Marty Lederman, Georgetown Law

When Congress passed its Partial Birth Abortion Ban in 2003 it did so pursuant to its commerce power by limiting the Ban’s reach to those physicians performing the procedure who are “in or affecting interstate or foreign commerce.” However, in a single sentence, Justice Thomas suggests that this jurisdictional hook may be insufficient in his eyes and therefore outside Congress’ authority. This is an interesting admission on Justice Thomas’ part because it implies that his fidelity to limiting abortion rights (evidenced by his vote in Stenberg, e.g.) might be trumped by his textual arguments against an expansive commerce power. As a result, Justice Thomas’ may have represented a fifth vote to invalidate the Ban had respondents raised a commerce clause challenge.
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Posted in Politics, DailyFeatured | 1 Comment »

April 19th, 2007

Pro Choice Failure

I’ll be writing on this issue for ACSblog, but I wanted to at least jot this idea down today. In his concurring opinion, Justice Thomas indicates that he might have struck down the abortion ban for exceeding Congress’s power under the commerce clause. Justice Scalia joined Thomas, but perhaps only on the grounds that Thomas was correct in stating that the commerce clause argument was not raised.

Thomas has a long-standing position limiting the commerce clause (Raich dissent, Lopez concurrence, e.g.). Given that, I don’t think Thomas was bluffing when he said he would have nullified the federal abortion ban on those grounds. That is, Thomas could have been a fifth vote to strike the law. Scalia might have been a sixth.

There is no question, either, that the liberal justices would have upheld the law under the commerce power and voided it under their abortion jurisprudence. That is, they were going to be four votes to strike it no matter what.

That means that Kennedy, whose vote was certain based on Stenberg where he voted to uphold a partial birth abortion ban by a state, did not have to be the swing vote.

At this point in my research, I believe strongly that the pro choice movement made a significant and decisive error in not raising a commerce clause challenge to this law. Instead of charging towards an almost certain 5-4 decision against them, they could have had a better shot at a 5-4 or better victory. Yes, the victory would have been without the benefit of a majority opinion, but they were heading towards that anyway.

Honestly, what could have motivated the pro choice movement to willfully fail their constituency so terribly? This is a question that must be answered.

Posted in Politics, Health | 3 Comments »

April 17th, 2007

Voluntary Execution Imminent

Crossposted (and reposted) from ACSblog, the blog of the American Constitution Society, where I am an Editor at Large.

Arizona’s “most dangerous prisoner” is a rapist, a kidnapper and a murderer. His prison record alone includes multiple abhorrent acts of violence with improvised weapons. But while it may be impossible to have sympathy for Robert Comer, who was sentenced to death in 1988, a group of habeas lawyers fought to prevent their former client from waiving his rights to appeal his sentence in order to submit to lethal injection. In mid-March, after arguing before the Ninth Circuit sitting en banc, the lawyers were handed a 14-1 defeat and Robert Comer got his wish: On April 3, Arizona issued an execution warrant (subscription required) for Comer, its first in seven years. He will be executed soon.

According to some of the commentary online, this case is not about the death penalty so much as it is about commitment to process and whether, in the words of Drexel Law Professor Dan Filler, “this sentencing hearing [is] a moment Americans can be proud of?” This concern was raised by the habeas counsel and the lone dissenter, Judge Pregerson, who argued that the justice system must be strong enough to guarantee even a confirmed murderer and rapist like Robert Comer his due process.

In his dissent, which is a republication of the earlier Circuit opinion by Judge Warren Ferguson, Judge Pregerson explained why he felt Comer’s original habeas appeal should not have been dismissed despite Comer’s decision to abandon it:
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Posted in General, Current Affairs, DailyFeatured | 1 Comment »

March 13th, 2007


Geoffrey Stone, guest blogging chez ACS:

The Justice Department’s audit of the NSL program reveals, once again, the profound difference between government by executive decree and government by checks and balances. From 2003 to 2005, the FBI issued more than 140,000 NSLs. Although the FBI is required by law to report its use of this authority to Congress, the audit revealed that over the past three years the FBI underreported the number of national security letters it had issued by more than 20%.

In United v. Nixon the White House asserted that releasing tapes of the President’s conversations would have a chilling effect on his ability to receive candid advice. The Supreme Court acknowledged this interest but denied that it was dispositive: “[w]hen the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation of other values arises.” The Court was concerned with the successful and fair prosecution of a federal criminal case in Nixon, but its reasoning stands for a broad endorsement of transparency in government. While national security concerns are entitled to the utmost deference, that deference should not be grounds for blinding our government of countervailing branches to its own corruption.

Technorati Tags: ACSblog, law

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Posted in Police State | 13 Comments »

March 4th, 2007

Credit card changes, hat tip to Dodd

After twelve years in the wilderness, Senator Dodd now chairs the Senate Banking Committee, holding sway over an important piece of the middle class crisis: debt. In January, Dodd kicked off his party’s new majority and his own progressive presidential campaign by holding hearings on credit card debt, specifically some of the credit card companies’ most favored practices. At the time, the hearings were noticeable simply as evidence that the conversation in DC had changed. The notion that perhaps Congress should represent debtors more than lenders was a welcome change in perspective. Unfortunately, to date no pro-consumer legislation has taken the credit card companies to task, but that doesn’t mean Dodd’s actions haven’t had an effect, according to Elizabeth Warren:

Technorati Tags: 2008, Chris Dodd, consumer law, debt, Elizabeth Warren

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Posted in Politics, Economics, Campaign News | 4 Comments »

February 11th, 2007

How to Approach Obama’s Hope

There can be no doubt that Barack Obama’s words allude to policies that could change our country for the better. His speeches suggest outlines of ideas that resonate with our progressive values and hopes, and the manner in which he gives them inspire us to believe that his is the candidacy that we can follow toward achievement. During his announcement speech on Saturday, I was reminded of the broad mission urged upon us by Langston Hughes in his poem “Union”:

Not me alone–
I know now–
But all the whole oppressed
Poor world,
White and black,
Must put their hands with mine
To shake the pillars of those temples
Wherein the false gods dwell
And worn-out altars stand
Too well defended,
And the rule of greed’s upheld–
That must be ended.

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Posted in Politics, Campaign News, DailyFeatured | 3 Comments »

December 29th, 2006

On Funerals

The passing of President Ford and James Brown reveal a great deal about our country and how we relate to our history. These men, neither perfect, receive our highest honors at their deaths as we recognize their undeniable importance. And as we do that, we forgive the blemishes on their reputations and choose to see them in the best light possible. This is possible, at least in part, because we can place them in an unbroken evolution of our country: a president who served his term and a musician who helped music move forward. In both cases, America–its government and music–moved passed them during their lifetimes.

How different it must be to be in Iraq preparing for the passing of a tyrant.

Technorati Tags: Bush, Iraq

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Posted in Middle East | 4 Comments »

November 12th, 2006

An education plank

Next week I will be participating in the second conference call with the Drum Major Institute’s Netroots Advisory Council to discuss how to get DMI’s bundle of pro-middle class policies into the blogging lexicon. I already know what my suggestion is going to be: make them real. No one does this better, in my mind, than Elizabeth Warren (books, blog) who absolutely blew me away earlier this year (at DMI no less). She painted a clear picture of middle class plight and properly described it as the increasingly tenuous state of the American Dream. When asked, Professor Warren picked three policy changes she would make to make middle class life more attainable: medicare for kids, debt industry reforms, and free college education. The good news is that I’ve already heard college tuition and medicare for kids floated as possibilities for our new Congress (neither one universal, mind you, but improvements nonetheless). The bad news is that there is no getting around the necessity of these policy changes; things are getting worse.

Education isn’t sexy. It’s a mucky issue that sounds way better in the abstract. But policies need to get a the details if they are going to be successful. Step number one, then, has to be hooking your audience (voters) with a narrative as compelling as, say, the Iraq War. America is facing a bloodbath of red ink as families struggle to provide college educations to their kids and the results are debt, bankruptcy, second jobs, longer hours, later retirement – in short, the American Nightmare.

Technorati Tags: 2006, Bush, Common Good, Democrats, DMI, Education

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Posted in Politics, Education, DailyFeatured | 8 Comments »

November 7th, 2006

An implied mandate

Permit me a moment to count my chickens before they’re elected…

The proposed Democratic legislative agenda is important. Making taxes more progressive, increasing the minimum wage, and policing Congress are all necessary and will do our country good. But perhaps the Democrats should consider being bolder. Inherent in a governing majority is a mandate to go beyond the constrains of campaign promises and infer the electorate’s desires. This year, Democrats are going to be elected on bread and butter issues at home and the Iraq war abroad. Is it possible for the Party to glean anything from these specific factors? I believe broadly that Democrats are going to be elected because people in districts all over the country feel fundamentally insecure. From that, the Democrats should feel confident in offering security-enhancing legislation.

It has taken six years, but Americans are finally connecting their feelings of insecurity–both in their pocketbooks and in their persons–with the current incarnation of their government. Despite a growing economy and the absence of further attacks on the homeland, people will be going to the polls on Tuesday to vote their gut: our jobs are less secure, it’s harder to maintain a middle-class existence, and Iraq has not made us safer.

Technorati Tags: 2006, Bush, Democrats

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Posted in Politics | 2 Comments »

October 4th, 2006

Bush gets an inverted bump in the polls

Hey Tonto! Jump on it! Ride the pony! Jump on it!

In the poll, Bush’s job approval rating is at 39 percent among registered voters, a drop of three points since September, when his rating had increased to its highest level in months after he gave a series of speeches on national security leading into the fifth anniversary of the Sept. 11 terrorist attacks. The three-point drop, however, is within the poll’s margin of error of plus-minus 3.5 percentage points.

I’m going to go ahead and offer a little poll analysis now. I think the most telling question to poll would be whether this year’s White House spin machine is “too little, too late.” Something tells me that therein lies the secret to Bush’s terrible numbers. Sure, his colleagues on the Hill are criminals and molesters and Iraq is a swinging dickfest of freedom carnage and his party says we can’t win in Afghanistan, but please, this is the Rove machine. C’mon baby! ROVE!! If it’s so bad that the Rovo-Rooter can’t unmuck it then it’s probably too late. Period.

Technorati Tags: Bush, Elections, Iraq, Polls

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Posted in Politics, Poll Results | No Comments »

October 3rd, 2006

November is about the Court, too

Tuesday the Supreme Court begins its new session in what promises to be a very significant year both in terms of the decisions handed down and in forecasting the future of the Roberts Court. The Court has opted to hear cases that, as the New York Times says, “offer few off-ramps, requiring instead that the justices proceed to rulings that will define the new court in both substance and style,” not to mention have serious effects on the country.

The media rarely does any serious SCOTUS reporting until the Court’s opinions start coming out in May, but resources are available for those of us who are interested. Also, a new administrative decision by the Court gives us a front row seat as daily transcripts of arguments will be available immediately for the first time (here).

As the session starts, I can’t help but recognize an essential–but currently unfortunate–reality: you can’t lobby the Supreme Court. We can stand with our noses pressed against the glass and watch, but we can’t turn on the grassroots to try to sway the Court.
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Posted in General, DailyFeatured | 5 Comments »

September 30th, 2006

Gas Price Circle Jerk

Gas prices are falling. Elections are approaching. Energy bills have stalled. Three articles about falling gas prices came out today that do little more than report dull factoids, but reveal an important truth about our political system if read together. There is a movement afoot to protect Republicans and the oil-based economy from the meddlings of concerned voters and their chosen Democratic champions. Post-Katrina price spikes and a summer of $3 gasoline were driving Americans to do something about our oil addiction. But then politics and money intervened, and the media doesn’t seem to get it.

First of all, the debate over the politicization of oil prices is quickly dismissed. Though the Times argued that falling prices won’t necessarily help the GOP this November (you can’t campaign on a lesser degree of badness), the paper dismissed “conspiracy theories” about price manipulation. They did so explicitly by referring to concerns as just that, but they also did it implicitly by choosing two starkly different authorities to represent the two sides:

And the accusation has provoked a vigorous debate on the Web. On, a left-wing blog, someone commented: “Anybody with any brains KNOWS this government manipulates almost everything here in the States.”

The White House press secretary, Tony Snow, even brought up that conspiracy theory at a recent briefing by joking that some people thought “the President has been rigging gas prices, which would give him the kind of magisterial clout unknown to any other human being.”

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Posted in Politics, Economics | 22 Comments »

September 26th, 2006

Keep talking about Iraq

Crooks & Liars (quoting Eric Boehlert) highlights an upsetting trend in the Traditional Media. As we approach the November elections, Iraq is slipping off the front pages:

There is, however, ample evidence that the American media, on the eve of the crucial midterm elections, have lost interest in the chaotic saga, with network news coverage in recent weeks plummeting and Page One newspaper dispatches from Iraq growing sparse. The media fade has come at a perfect time for the White House as it attempts to shift voters’ attention away from Iraq and move it over to the war on terror.

What the media doesn’t understand, or at least won’t show they understand by covering it sufficiently, is that people care about Iraq even if editors don’t, and they’re making their own news:

Technorati Tags: Elections, Iraq, Media

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Posted in Politics, Middle East | 2 Comments »

September 21st, 2006

Detainee Deal cedes power to president

Yesterday I objected to the proposed changes to the War Crimes Act on the grounds that by specifying certain acts as illegal Congress risked condoning unspecified acts. That is, by pre-interpreting what interrogation techniques violate the Geneva Conventions (which set the standards of the War Crimes Act) Congress drastically limits the interpretive powers of the courts. For a president that is disdainful of the judiciary, this restriction would be a coup. Additionally, using the current CIA interrogation toolbox to write specific violations into the War Crimes Act misunderstands the creativity of the CIA and effectively invites the agency to torture via loophole.

This evening, after a full day of negotiation, Senate Republicans emerged from Cheney’s office with a compromise that proudly goes even further than what I was originally concerned about. According to the Times, the War Crimes Act will be amended to include prohibitions against certain specific conduct as defined by the president. In a major concession to executive authority, the senators included language that “the executive branch is responsible for upholding the nations’ commitment to the Geneva Conventions, leaving it to the president to establish through executive rule any violations for the handling of terror suspects that fall short of a ‘grave breach.’” Considering that this negotiation grew out of the Supreme Court’s condemnation of the administration’s fiat, this seems like a lot of leeway to be granting to the president. It is significant, as the Times points out, that the president is required to publish his decrees in the Federal Register so that they are not secret, but it is just as significant that the president retains the discretion to interpret what is egregious conduct and what is not.

Technorati Tags: Bush, Geneva Conventions, Hamdan v. Rumsfeld, McCain, Republicans, Terrorism, torture

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Posted in Politics, Police State | 1 Comment »

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