More On Schwab's Ruling (As Viewed By The Trib)

My friends on the Tribune-Review editorial board published this this morning:

U.S. District Judge Arthur Schwab, sitting in Pittsburgh, has taken considerable heat in some legal circles for ruling that parts of President Barack Obama's deportation amnesty are unconstitutional. The rap against Tuesday's ruling is that it has little or no practical effect because it came in a technically unrelated criminal deportation case. Nonetheless, Judge Schwab's finding stings: “President Obama's unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore is unconstitutional.” Credit the judge for having the guts to say so. And look for his legal rationale to be part of the eventual Supreme Court ruling that Mr. Obama truly is a constitutional reprobate. [Bolding in original]

While the braintrust acknowledges "the rap" about the ruling ("that it has little or no practical effect"), you should note that they don't come out and agree with that point.  They do, however, agree with the finding.

Which is odd, considering how one of their own sources on Constitutional Law, Ilya Somin, a libertarian (he's an Adjunct Scholar at the Scaife-funded Cato Institute) lawyer writing at Volokh Conspiracy seems to disagree:

Today’s federal district court decision striking down President Obama’s executive order on immigration has serious flaws. Strikingly, Judge Arthur Schwab attempts to dispose of a complex and important constitutional issue in just three or four pages. In the process, he ignores important weaknesses in his position.

And more damaging to the braintrust's argument:

If the Supreme Court were to adopt Judge Schwab’s reasoning, federal law enforcement agencies would be barred from issuing general systematic guidelines about how their officials should exercise prosecutorial discretion. The exercise of discretion would then become arbitrary and capricious. Alternatively, perhaps they could still follow systematic policies, so long as those policies were not formally declared and announced to the public, as the president’s order was. Neither possibility is particularly attractive, and neither is required by the Constitution.

In fact at Reason.com, Somin out right states:

In reality, Obama’s actions were well within the scope of executive authority under the Constitution. In a world where authorities can prosecute only a small fraction of lawbreakers, all presidents inevitably make policy choices about which violations of federal law to prosecute and which to ignore. Such choices are inevitably affected by policy preferences. Obama’s decision to defer deportation is in line with those of past presidents.

Can't these guys get their stories straight?

Ilya Somin Reponds!

That was fast!

Today, Professor Ilya Somin responded to my blog post of this morning.

Hello Volokh readers!

From his opening:

The implication is that the media must disclose any connections, however indirect, that an expert has with politically motivated funders of any kind. Being an adjunct scholar at Cato is an unpaid position that doesn’t give Cato any control over my research (or me over theirs) — much less giving any such control to individual Cato donors. If that is going to be the standard, it should be applied consistently across the board.

For example, most major universities get funding from liberal foundations such as the Ford Foundation and the MacArthur Foundation, and often also from individual liberal donors such as George Soros. Many of the liberal legal scholars who are quoted in the media in support of the individual mandate are affiliated with the American Constitution Society, which also gets some of its funding from Soros (full disclosure: I’ve spoken at several ACS events myself). Some of them also blog at liberal legal blogs, such as Balkinization.

All I'd have to say to the first sentence is this: Well yea.

And did you catch the ending of the second paragraph? When he discloses that he's spoken at ACS events?

Full (or at least fuller) disclosure is a good thing. Too bad it just doesn't happen on the pages of the Tribune-Review.

Let's do a little thought experiment. Since George Soros is mentioned in Somin's response, let's start there.

Suppose George Soros owned the Pittsburgh Post-Gazette. And then suppose the editorial page of the P-G quoted (or perhaps just interviewed someone who writes for it) Media Matters, a left leaning news fact-checking organization that Soros has given a million dollars to. Now suppose they did that without disclosing those financial connections. What do you think would happen then?

This is my point.

Craig Smith Does It Again

And that "it" means "withholds important information from his audience."

Take a look at this in today's Tribune-Review:

Ilya Somin is an associate professor at George Mason University School of Law. His research focuses on constitutional law, property law and the study of popular political participation and its implications for constitutional democracy.

The name sounded familiar so I looked him up on 2PJ and found this.

While his description above seems politically neutral (he's just described as "an associate professor at George Mason University School of Law") parts of Somin's bio was conveniently omitted by the Scaife-employed Craig Smith.

Somin is also an Adjunct Scholar at the Scaife-funded Cato Institute - and from that page we also learn that Somin blogs at the conservative/libertarian Volokh Conspiracy.

However brilliant Professor Somin may be, politically neutral he isn't. Smith should have pointed out Somin's connections to the political right.

Also omitted, of course, are the millions of dollars Smith's boss Richard Mellon Scaife has shuffled of to Cato, where Somin's a scholar.

Another lesson (actually it's the same lesson, only resubmitted) on how the Right Wing Noise Machine works.