LeRoy Goldman
The Shadow Knows

Published: Sunday, June 30, 2013 at 4:30 a.m.

Affirmative action's neck is in a noose

Last Monday, the Supreme Court decided this term's major affirmative action case, Fisher v. the University of Texas. It was a much anticipated ruling that some had expected and feared would reverse decades of affirmative action policy.

When the court's ruling didn't go that far, the collective, though inaccurate, sigh of relief from liberals was audible from coast to coast. The Huffington Post's headline was, "Supremes Punt on Affirmative Action." Politico trumpeted, "SCOTUS Passes on Affirmative Action." Harvard law professor Cass Sunstein's analysis was titled, "Judicial Minimalism Triumphs in Affirmative Action Case."

God bless them one and all. They got it wrong!

The case in question was a challenge to the University of Texas' use of race with respect to undergraduate admissions. Abigail Fisher, a white woman, applied for admission but was rejected. She then sued, arguing that she had been a victim of racial discrimination because minority students with inferior credentials had won admission to the university. Her claim asserts that the racial discrimination she alleges is a violation of the Equal Protection Clause of the 14th Amendment to the Constitution.

Both the federal district court and the 5th Circuit of the U.S. Court of Appeals ruled in favor of the university and against Ms. Fisher.

To put this decision in perspective, we need to look back to 2003 when the Supreme Court issued a landmark affirmative action ruling in the case of Grutter v. Bollinger, a case involving the University of Michigan Law School. Grutter was a 5-4 decision in which Justice Sandra Day O'Connor wrote the majority opinion.

The court ruled that the use of affirmative action is constitutional if it includes race among multiple factors for the purpose of achieving a diverse student body. It also ruled that it would be unconstitutional if the university's admissions process advantaged one student over another based upon race alone.

Writing for the majority, Justice O'Connor found that the law school's admissions process was "narrowly tailored" and therefore permissible because it did not rely solely upon race or a racial quota system.

In Grutter, the high court reaffirmed the necessity for using the strict scrutiny standard of judicial review in cases involving race and the 14th Amendment. Strict scrutiny is the most restrictive form of judicial review. Strict scrutiny presumes the law or policy to be unconstitutional, and thus the state must prove its constitutionality. If proven, the state must then show that its approach is narrowly tailored to meet the intended result.

In deciding the Texas case last week, the Supreme Court not only reaffirmed the use of the strict scrutiny standard, it used that standard to overturn the decisions of lower courts that had ruled in favor of the University of Texas. In so doing, the high court raised the bar significantly for the University of Texas, and potentially many others.

Writing on SCOTUSblog.com at the time of oral arguments before the Supreme Court last fall, Amy Howe stated that "even if the core of Grutter survives, so that universities can still consider race as one factor in their admissions programs, the court is likely to put some real teeth into the limits on when and how it can do so."

She turns out to be a prophet because the court has now ruled that race can only be used to achieve a diverse student body when there is no other realistic alternative.

Lyle Denniston, also writing on SCOTUSblog.com, elaborates this same key part of the court's ruling. He argues that the court's decision has partly walked away from the part of Grutter that was willing to allow courts to defer to the "good faith" of academic administrators that there is an educational benefit in using race as one factor in admitting students.

Instead, the Supreme Court has now required the lower court to use a two-step method that will first look at the university's good-faith basis for using race as a factor in admissions. But then the university will have to demonstrate that there is no nonracial alternative to achieving a diverse student body. If there is a nonracial alternative that is workable, then race can't be used.

And there's more. In an unusual footnote in Grutter in 2003, Justice O'Connor wrote, "We expect that 25 years from now, the use of racial preferences will no longer be necessary ... ." Three years later, in November 2006, the voters of Michigan decided to advance her timetable. They voted 58 percent to 42 percent to approve a statewide ballot measure that banned affirmative action in Michigan.

A group called the Coalition to Defend Affirmative Action sued, and the 6th Circuit Court of Appeals ruled that, with respect to higher education, the ban violated the Equal Protection Clause of the 14th Amendment. The case, known as Schuette v. Coalition to Defend Affirmative Action, has now been taken up by the Supreme Court and will be decided next year.

The Supreme Court's forthcoming ruling in the Michigan case may be a blockbuster because, unlike the Texas case, it "directly tests whether the Constitution's guarantee of equality bars a state from adopting a flat ban on the use of race in public policy," according to Denniston on SCOTUSblog.

Recent polling shows that 76 percent of Americans oppose race-based college admissions. Don't be surprised if next year the Supreme Court closes Justice O'Connor's 25-year window 14 years early.

The Shadow's oiling the trapdoor on the gallows, but Goldman can be reached at: EmailMe

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LeRoy Goldman
The Shadow Knows

Published: Sunday, June 16, 2013 at 4:30 a.m.

The arrogance of Obama's dragnet

As if the recent revelations about Benghazi, Internal Revenue Service targeting of conservative organizations, the Justice Department's secret subpoenas of Associated Press phone records, and the secret search warrant it used to obtain the private emails of Fox News reporter James Rosen were not enough, there's more.

Now The Washington Post and the British paper The Guardian have disclosed that the Obama administration obtained a secret court order requiring Verizon to divulge information to federal counterterrorism agencies about all of the telephone calls on its network.

The Post and the Guardian have also reported that the super-secret National Security Agency has collected information from at least nine United States Internet servers, including Google, Facebook and Apple.

Any one of these revelations would be sufficient to cause the Obama administration to resort to damage control mode. But the coincidence of all of this happening at the same time amounts to something that no administration ever wishes to confront — losing the confidence of the American public. Once lost, it can't be restored. Once lost, it's curtains for the administration.

Don't be fooled by the apparent business as usual behavior at the White House and in the puzzle palaces that line the Potomac. To use lingo from the Pentagon, they've gone to DEFCON 1.

As Philip Ewing recently reported on Politico.com, the NSA urged the government to "rethink" the Fourth Amendment to the Constitution in a classified memo written in 2001 and later declassified and released by George Washington University. The memo urges the United States to re-evaluate its approach to signals intelligence (SIGINT) and the protections the Fourth Amendment provides against unreasonable searches and seizures.

The Fourth Amendment, a part of the Bill of Rights, guards against unreasonable searches and seizures and requires that any warrant be judicially sanctioned and supported by reasonable cause.

The NSA memo goes on to state that "senior leadership must understand that today's and tomorrow's mission will demand a powerful, permanent presence on a global telecommunications network that will host the ‘protected' communications of Americans as well as the targeted communications of adversaries." There can be little doubt that the recent revelations concerning the NSA's phone-tracking operation and its Internet monitoring program rely upon the "rethinking" that the NSA called for in 2001.

Now it's vital to understand that the dual necessities of protecting our liberty and being adequately prepared to defeat international terrorism are complicated and not black and white. The problem is that these issues are being decided in secret by the government.

That all of this constitutes a clear and present danger to the American public and to the Obama administration is manifested in two editorials published in The New York Times and Washington Post on June 6. We all know the political sympathies and editorial bent of The Times and The Post — Democratic, liberal and pro-Barack Obama. Thus, what they say here is of great significance as well as damaging to the Obama administration.

Under the Patriot Act, the government is authorized to seek secret court orders to obtain "business records" from phone companies connected to a terrorism investigation. But it appears that now the NSA has expanded that definition to include all customers of a phone company like Verizon. The Post opines, "If the program is so extensive and there are two layers of court review, why couldn't the American people know about this process before now?"

The Post also challenged the effectiveness of the program. It said, "In the days after the Boston bombings, many asked why the government didn't connect the dots on the Tsarnaev brothers. Now many are asking why the government wants so much information about so many Americans."

The Times editorial was far harsher. It opened by stating that "the Obama administration issued the same platitude it has offered every time President Obama has been caught overreaching ... . Those reassurances have never been persuasive." Furthermore, it states, "Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it."

The Times argues that the administration believes that, without suspicion of wrongdoing, the government is allowed to know who we call, from what phone and for how long. The chairwoman of the Senate Intelligence Committee, Diane Feinstein, D-Calif., defended the administration, but the Times called her defense "absurd."

It also takes the president to task for doing the same thing that in 2007 he criticized the Bush administration for: "putting forward a false choice between the liberties we cherish and the security we provide."

The Times stated, "The administration has now lost all credibility on this issue." And it quotes Jim Sensenbrenner, the Republican congressman from Wisconsin who introduced the Patriot Act in 2001, who now says, "Seizing phone records of millions of innocent people is excessive and un-American."

President Obama and his administration are on thin ice. They would do well to remember what happened after Walter Cronkite's broadcast on Feb. 27, 1968, on the Tet Offensive in Vietnam. President Lyndon Johnson saw it and said, "If I've lost Cronkite, I've lost Middle America."

A month later, Johnson stunned the nation by saying he would not seek re-election. A few months later, the Democratic National Convention in Chicago was ripped apart by violence over the war. And that November, Richard Nixon was elected president only to ultimately be destroyed by his arrogant contempt of the rule of law.

The Shadow's resorted to communicating by smoke signals, but Goldman can be reached at:  EmailMe

Please Visit:  Citizens Against Politics As Usual

Please Visit:  Mike Tower Political Opinions

LeRoy Goldman
The Shadow Knows

Published: Sunday, June 9, 2013 at 4:30 a.m.

Obama's improvised explosive device

There is no doubt that President Barack Obama and his Democratic allies on Capitol Hill view the enactment of Obamacare right up there with Social Security and Medicare in the pantheon of gigantic legislative accomplishments.

After all, the battle for health care reform began 100 years ago. Since then, presidents of both parties have attempted to enact reform and failed. It’s a daunting challenge that has grown with the passage of time as health care has become ever more specialized and vastly more expensive.

Health care spending now consumes about 18 percent of the nation’s GDP and totals $2.7 trillion annually. In Washington, health industry lobbyists from the commercial health insurance industry, the drug companies, the hospitals, the medical schools, the physicians and nurses and the labor unions spend millions of dollars to protect their piece of the health care pie.

President Obama deserves credit for having been willing to try to accomplish what had eluded his predecessors. But he attempted health care reform at the wrong time and in the wrong way. After all, as he took office, the nation’s economy was imploding. Dealing effectively with that should have been his top priority, not health care reform.

In addition, by turning the writing of the bill over to the Democrats on the Hill, the president committed an unforced and fatal error. That error gave lie to his campaign promise to change the way Washington works. It alienated and radicalized the Republicans, and it gave the fledgling tea party movement the rallying cry it needed.

When the president signed the bill into law on March 23, 2010, he was cornered. He calls it health care reform. It’s not. In order to get the 60 votes necessary to pass it in the Senate, the Democrats had to sell out to the health industry that the bill was supposed to reform. The law is so complex that nobody understands it. In addition to its 2,700 pages, it now has 20,000 pages of regulations. The American people still don’t know what’s in it, and a majority of the nation opposes it.

What the president did accomplish was to create an improvised explosive device (IED) that exploded on Election Night in 2010. The president lost 63 House seats, more than any sitting president since 1938. Since then, the House has roadblocked the president’s agenda. The president’s legacy is threatened by the Frankenstein Monster he and the Democrats created.

But the Obamacare IED has a unique property — the ability to explode more than once.

Recall that the centerpiece of Obamacare is the individual mandate, the provision that requires the American people to purchase health insurance. That’s the provision that came before the Supreme Court. Chief Justice John Roberts and the four liberal justices ruled it was constitutional under the taxing powers of the Constitution.

Taxing power — that means the IRS! Obamacare will be administered jointly by Health and Human Services and the IRS when its main provisions go into effect in 2014. There are 47 tax and regulatory provisions that the IRS will administer. The inspector general of the Treasury Department has said recently that these new responsibilities are unprecedented and are going to lead to problems.

There is already reason to believe the IRS is overstepping its authority. The law authorizes tax credits and subsidies for health insurance purchased through state exchanges. But 33 states have refused to establish exchanges, meaning the federal government will establish the exchanges in those states. Without the subsidies in those 33 states, individuals would be exempt from the law’s mandate, rendering Obamacare unworkable in more than half the nation.

How’s the IRS proposing to deal with this? It has chosen to ignore the law and assert that the feds can provide the subsidies, anyway. Its decision is already being challenged in court. If it gets to the Supreme Court, Chief Justice Roberts will have the opportunity to redeem himself.

To monitor compliance with all of the personal data Obamacare requires, the IRS and HHS are creating the biggest personal information database in the history of the federal government. It’s called the Federal Data Services Hub, and it will centralize information about you from the IRS, HHS, Homeland Security, Justice, Social Security and the 50 states. The IRS will then cross-check data from the hub against your tax returns.

If the IRS determines that you haven’t played by its rules, Obamacare requires the IRS to penalize you. That penalty will begin at $695 or 2.5 percent of your household income, whichever is higher. The law prohibits the IRS from using liens or wage garnishment to collect those penalties, so it will reduce your tax refund. If you’re one of the 80 percent of Americans who receives a tax refund, you might want to rethink that strategy.

To attempt to deal with this enormous burden, the IRS has requested $440 million for fiscal year 2014, including hiring almost 2,000 more bureaucrats. The individual who has been tapped to lead this effort at the IRS is Sarah Hall Ingram, who previously headed the unit that targeted conservative group applications for 501(c)(4) tax status. As head of the now disgraced Tax Exempt Unit, she received $96,350 in bonuses between 2010-2012 in addition to her annual salary of $172,000. The truth is stranger than fiction.

The IRS has become radioactive. In 2014, the Obamacare IED is going to explode again. It ain’t gonna be pretty, but it’s gonna be deserved!

The Shadow can be reached at:  EmailMe

Please Visit:  Citizens Against Politics As Usual

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LeRoy Goldman
The Shadow Knows

Published: Sunday, June 2, 2013 at 4:30 a.m.

Where there's fire ... there's fire

For most of the 19th century, federal employment was based on the spoils system. But when a disillusioned federal office seeker, Charles Guiteau, shot and mortally wounded President James Garfield in 1881, the tide turned in favor of civil service reform.

In 1883, President Chester Arthur signed the Pendleton Act into law. At the time of its enactment, the federal workforce was 132,000. Today it's 2.7 million, not including the military. The question is whether, after 130 years, it continues to serve the nation well. The evidence says no.

There is no doubt that storm clouds hang over President Barack Obama and his administration. They are increasingly obsessed with damage control concerning the emerging scandals respecting Benghazi, the IRS, and the Justice Department's secret subpoena for the phone records of Associated Press reporters and a secret search warrant to obtain private emails from Fox News reporter James Rosen, branding him as a co-conspirator under the 1917 Espionage Act.

How's it going to end? Will the president, whose political career thus far has been blessed with extraordinary luck, escape unblemished? Will the revelations to come emasculate his ability to govern? Will he be driven from office?

It's too early to tell, but I do know this: The problems that beset the executive branch of the federal government and the military are systemic, growing worse and go far beyond what lurks in the Benghazi, IRS and DOJ scandals.

The truth is that the government is so big, so complex and so insulated that its managers, from the president down, have lost control of the enterprise. Instead of managing, they careen from crisis to crisis in the hope that you and I won't realize how desperate the situation has become. Yet, between 2008-2011, the senior executives awarded each other bonuses totaling $340 million! Sound like a new spoils system?

Here's the tip of this chilling iceberg. We know the full truth about Benghazi remains obscure. Former Secretary of State Hillary Clinton is widely admired for being a tireless and indefatigable workhorse. We know she traveled to 112 nations and logged more than a million miles in the air. But when did burning record amounts of jet fuel become the standard for diplomatic accomplishment?

Yet, uncharacteristically and cleverly, she was too tired to appear on the Sunday talk shows and answer questions about the deaths of Ambassador Christopher Stevens and three other Americans in Benghazi. Instead, Susan Rice foolishly volunteered to be the patsy and took the hit.

We know that the tick-tock among the CIA, the State Department and the White House on her talking points memo had more to do with bureaucratic infighting and damage control just before a presidential election than it did with what did and did not happen in Benghazi. We also know that the conclusion of the Accountability Review Board, established to investigate the Benghazi incident and led by former ambassador Thomas Pickering and former Adm. Mike Mullen, focused responsibility on underlings at State and never interviewed Clinton.

We know that the IRS has targeted conservative-leaning groups in respect of their application for 501(c)(4) tax status. We know that commissioners of the IRS were aware of the practice, as were the secretary of the Treasury and senior staffers in the White House.

We know that Lois Lerner, former head of the targeting unit at the IRS, has refused to testify before Congress, and that former IRS commissioners Douglas Shulman and Steven Miller have testified that they broke no law and have not apologized. We don't yet know who ordered this abusive and intrusive practice and who else may have known about it. We know that the DOJ has been relentless in its pursuit of national security leaks and that it believes that justifies its assault on the First Amendment protection of free speech and a free press in the AP and Rosen cases.

But there is much more. What about the escapades of the president's Secret Service advance team with prostitutes in Cartagena, Colombia? What about the one- to two-year backlog in approving disability claims for wounded American servicemen because of a turf battle between the Army and the VA over the needed computer system to process the claims?

What about the feds working at the Dover Mortuary who disposed of deceased American servicemen's remains in landfills? What about the thousands of unmarked and mismarked gravesites at Arlington National Cemetery and other military cemeteries around the nation?

What about the General Services Administration supervisors and staff who partied at public expense in Vegas? What about turning the job of IRS implementation of Obamacare over to a person known to have been involved in the IRS' targeting of conservative groups?

What about the military's role in spiriting Major Nidal Hasan from Washington to Fort Hood in Texas where he is now charged with the murder of 13 individuals? What about the decision to try him for workplace violence rather than as a terrorist?

And what about the meteoric rise in sexual assaults in the military, including by those who are charged with preventing such assaults?

All of this demonstrates that the civilian and military chains of command are broken. Good order and discipline have been replaced with disorder and chaos. Even more disconcerting is what we don't know because the media and whistle-blowers have yet to reveal it.

Americans can no longer trust the executive branch or the military. The safeguards put in place long ago to ensure that trust no longer work adequately. We need a new Pendleton Act.

The Shadow's distributing whistles in Washington, but Goldman can be reached at:  EmailMe

Please Visit:  Citizens Against Politics As Usual

Please Visit:  Mike Tower Political Opinions