TIME justice

Justice Department Steps Up Ferguson Involvement

President Obama Press Briefing
President Barack Obama speaks about the unrest in Ferguson, Mo. while on vacation in Edgartown, Mass. on Aug. 14, 2014. Rick Friedman—Pool/Getty Images

In an effort to defuse tensions in Ferguson, Mo., the Justice Department has increased its involvement on the ground.

The Justice Department upped its involvement in the situation in Ferguson, Mo. Thursday, deploying advisers to local law enforcement, mediating between local faith leaders and government authorities and deploying the head of the criminal section of the department’s civil rights division to the scene.

Attorney General Eric Holder added rhetorical support to the moves Thursday afternoon from Martha’s Vineyard, where he is vacationing with President Barack Obama. In a statement, Holder suggested local law enforcement might be heightening tensions and that forces in Ferguson are insufficiently diverse.

“The law enforcement response to these demonstrations must seek to reduce tensions, not heighten them,” Holder said. Referring to discussions that took place this morning between civic leaders and law enforcement officials, mediated by members of the Justice Department’s Community Relations Service, Holder said, “Over time, these conversations should consider the role that increased diversity in law enforcement can play in helping to build trust within communities.”

Federal officials investigating the death of Michael Brown, the young man whose shooting Saturday at the hands of local cops triggered the unrest, have interviewed a friend, Dorian Johnson, who says he witnessed the shooting, a person familiar with the investigation says. A lawyer for Johnson told MSNBC that local law enforcement officials weren’t interested in hearing his account of the shooting.

The Justice department has dispatched policy advisers to provide “technical assistance” to local law enforcement, Holder said. The officials will not play a direct role in crowd control, but rather are intended to provide advice and oversight—essentially federal supervision—to local law enforcement as they try to decrease tensions and maintain order.

TIME

Eric Holder: Obama’s Use of Executive Power Has Been Limited

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U.S. Attorney General Eric Holder speaks during an event to celebrate the 50th anniversary of the Civil Rights Act at Howard University in Washington on July 15, 2014 Mandel Ngan—AFP/Getty Images

Ahead of an expected lawsuit from the House of Representatives, Attorney General Eric Holder defended President Obama’s use of executive power and said it was a fraction of what other Presidents have done. Speaking to TIME on Tuesday, Holder said Obama had used executive orders far less than Teddy Roosevelt, and said that the Justice department had approved all his orders before hand for legality.

“I was looking the other day just at a list of presidents and Teddy Roosevelt issued about 1,000 executive orders,” he said. “So in terms of magnitude this president has not used this authority nearly as much as his critics would say.”

Holder also addressed his ongoing review of administration immigration policies, including consideration of expanding protection from deportation to include not just unaccompanied minors but adult undocumented immigrants as well. Holder also said he believes that westerners traveling to Syria and Iraq, where they can come into contact with skilled bomb-makers from al Qaeda offshoots, represent a grave threat to U.S. national security.

The interview has been condensed and edited for space.

Has there been actual direct contact between western Jihadis and terrorist organizations in Syria and Iraq?

The short answer to that question is yes. We are seeing I would say an alarming rise in the number of American and European Union nationals who have been going to Syria to help extremist groups. I think it’s just a matter of time before we put Iraq in that same category. We have opened dozens of investigations into Americans who have been traveling there. At this point we have eight open cases in various stages of people who have traveled to Syria.

I would characterize it as a grave threat to our security. Every morning I start my day going over the threat assessment for the previous 24 hours over at the FBI, and increasingly the topic of individuals traveling from the United States to Syria and Iraq—Iraq is starting to crank up—that has become a real issue. We estimate there are about 7,000 foreign fighters in Syria, from the EU, North Africa, and some from the United States. They go there, they can become radicalized, and they can return home with the intent to commit violence. And they have the know-how to do it on potentially a mass scale.

Is that your greatest worry on the national security front?

Core al Qaeda has really been weakened, there’s no question about that. But these offshoots, even those organizations that have split from al Qaeda, are of great concern and the brew that is potentially in the mix there between these groups, getting together, sharing expertise, whether its Al Qaeda in the Arabian Peninsula and the expertise they possess with regard to the creation of bombs, marrying them up with other groups. It’s the combination of these offshoots plus these foreign fighters. Those are the things that really give me concern.

How much of your time do you have to spend worrying about, thinking about and addressing the pressure from the Hill to constrain the executive branch?

We’ll have to see. There’s a very tangible thing we’re going to potentially have to deal with, which is the lawsuit that I think the House is going to file at some point. And the Justice department will obviously be involved in that. But in terms of the use of executive action, the president has appropriately used executive authority as other presidents have. He’s used executive action, around 180 times, something like that. I was looking the other day just at a list of presidents and Teddy Roosevelt issued about 1,000 executive orders. So in terms of magnitude this president has not used this authority nearly as much as his critics would say. But when executive action is proposed it is something that is reviewed here by the appropriate components within the Justice department and a legal determination made that the President can act in that way.

Have you reviewed the issue of expanding the president’s powers to grant reprieve from deportation proceedings for a broader number of people, not just children?

I’d say we’re reviewing that. The president has asked me and Secretary Jeh Johnson from Homeland Security to look into a wide range of things. So I’d say that we are reviewing the specific one that you had mentioned, but we are more broadly looking at the whole immigration portfolio.

Do you take a position on the philosophical debate over the purpose of incarceration, whether it is for rehabilitation or for retribution?

The purpose of sentencing, there’s a variety of factors: deterrence, punishment, rehabilitation. That’s all a part of what a good sentence is all about. But when done well it tends to focus on looking at the individual. I was a judge for five years here in Washington, DC, and it’s a combination of art and science.

 

TIME justice

Exclusive: Attorney General Eric Holder to Oppose Data-Driven Sentencing

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U.S. Attorney General Eric Holder speaks during an event to celebrate the 50th anniversary of the Civil Rights Act at Howard University in Washington on July 15, 2014 Mandel Ngan—AFP/Getty Images

Statistics can predict criminal risk. Can they deliver equal justice?

Updated: Thursday, July 31, 2014, 1:35 p.m.

Citing concerns about equal justice in sentencing, Attorney General Eric Holder has decided to oppose certain statistical tools used in determining jail time, putting the Obama Administration at odds with a popular and increasingly effective method for managing prison populations. Holder laid out his position in an interview with TIME on Tuesday and will call for a review of the issue in his annual report to the U.S. Sentencing Commission Thursday, Justice department officials familiar with the report say.

Over the past 10 years, states have increasingly used large databases of information about criminals to identify dozens of risk factors associated with those who continue to commit crimes, like prior convictions, hostility to law enforcement and substance abuse. Those factors are then weighted and used to rank criminals as being a high, medium or low risk to offend again. Judges, corrections officials and parole officers in turn use those rankings to help determine how long a convict should spend in jail.

Holder says if such rankings are used broadly, they could have a disparate and adverse impact on the poor, on socially disadvantaged offenders, and on minorities. “I’m really concerned that this could lead us back to a place we don’t want to go,” Holder said on Tuesday.

Virtually every state has used such risk assessments to varying degrees over the past decade, and many have made them mandatory for sentencing and corrections as a way to reduce soaring prison populations, cut recidivism and save money. But the federal government has yet to require them for the more than 200,000 inmates in its prisons. Bipartisan legislation requiring risk assessments is moving through Congress and appears likely to reach the President’s desk for signature later this year.

Using background information like educational levels and employment history in the sentencing phase of a trial, Holder told TIME, will benefit “those on the white collar side who may have advanced degrees and who may have done greater societal harm — if you pull back a little bit — than somebody who has not completed a master’s degree, doesn’t have a law degree, is not a doctor.”

Holder says using static factors from a criminal’s background could perpetuate racial bias in a system that already delivers 20% longer sentences for young black men than for other offenders. Holder supports assessments that are based on behavioral risk factors that inmates can amend, like drug addiction or negative attitudes about the law. And he supports in-prison programs — or back-end assessments — as long as all convicts, including high-risk ones, get the chance to reduce their prison time.

But supporters of the broad use of data in criminal-justice reform — and there are many — say Holder’s approach won’t work. “If you wait until the back end, it becomes exponentially harder to solve the problem,” says former New Jersey attorney general Anne Milgram, who is now at the nonprofit Laura and John Arnold Foundation, where she is building risk-assessment tools for law enforcement. Some experts say that prior convictions and the age of first arrest are among the most power­ful risk factors for reoffending and should be used to help accurately determine appropriate prison time.

And data-driven risk assessments are just part of the overall process of determining the lengths of time convicts spend in prison, supporters argue. Professor Edward Latessa, who consulted for Congress on the pending federal legislation and has produced broad studies showing the effectiveness of risk assessment in corrections, says concerns about disparity are overblown. “Bernie Madoff may score low risk, but we’re never letting him out,” Latessa says.

Another reason Holder may have a hard time persuading states of his concerns is that data-driven corrections have been good for the bottom line. Arkansas’s 2011 Public Safety Improvement Act, which requires risk assessments in corrections, is projected to help save the state $875 million through 2020, while similar reforms in Kentucky are projected to save it $422 million over 10 years, according to the Pew Center on the States. Rhode Island has seen its prison population drop 19% in the past five years, thanks in part to risk-assessment programs, according to the state’s director of corrections, A.T. Wall.

The spread of data analysis in criminal justice is a relatively new phenomenon: not long ago, reckoning a criminal’s debt to society was the work of men. For much of the 20th century judges, parole boards and probation officers made subjective decisions about when and whether a criminal was ready to return to society. Then in the 1970s and ’80s, as lawmakers sought to eradicate racial bias and accommodate victims’ rights, jail terms increasingly became a matter of a fixed formula set by law in a process that boiled down to the adage, “Do the crime, do the time.”

The result was a huge surge in prison populations, jail for low-risk offenders and often freedom for unrehabilitated inmates. The number of U.S. prisoners has risen 500% since 1980, to more than 2.2 million in 2012; 95% of them will be released at some point. Evidence collected everywhere from conservative Texas to liberal Vermont shows that statistical analysis used to rank prisoners according to their risk of recidivism can reduce prison populations and reduce repeat offending.

The federal Bureau of Prisons says it uses an assessment tool to gauge risk of misconduct among inmates and determine the security conditions under which they are held. Holder says he wants to ensure that the bills that are moving through Congress, which require broader use of assessments in federal prisons, account for potential social, economic and racial disparities in prison time. “Our hope would be to work with any of the Senators or Congressmen who are involved and who have introduced bills here so that we get to a place we ought to be,” Holder said.

With reporting by Tessa Berenson and Maya Rhodan / Washington

The original version of this story has been updated to reflect comment from the federal Bureau of Prisons provided after publication

TIME Campaign Finance

IRS to Rubber-Stamp Tax-Exempt Status for Most Charities After Scandal

Internal Revenue Service Commissioner John Koskinen testifies during a hearing before the Government Operations Subcommittee of the House Oversight and Government Reform Committee July 9, 2014 on Capitol Hill in Washington, D.C.
Internal Revenue Service Commissioner John Koskinen testifies during a hearing before the Government Operations Subcommittee of the House Oversight and Government Reform Committee July 9, 2014 on Capitol Hill in Washington, D.C. Alex Wong—Getty Images

IRS head touts "efficiencies," but some groups fear fraud

Amid ongoing controversy over its scrutiny of nonprofits, the Internal Revenue Service has decided it will no longer screen approximately 80% of the organizations seeking tax-exempt charitable status each year, a change that will ease the creation of small charities while doing away with a review intended to counter fraud and prevent political and other noncharitable groups from misusing the tax code.

As of July 1, any group that pays a $400 fee and declares on a three-page online form that it has annual income of less than $50,000, total assets of less than $250,000 and is in compliance with the tax-code requirements of a charity will automatically be allowed to accept donations that are tax-deductible for the donors. Previously the groups had to fill out a detailed 26-page form, submit multiple supporting documents and provide a narrative description of their intended activities.

In an interview with TIME, IRS commissioner John Koskinen said the change would result in “efficiencies [that] will translate into a faster and better review” of bigger nonprofits, while clearing a 66,000-application backlog that has resulted in yearlong waits for groups seeking to start a charity. He said the new short form comes with 20 pages of instructions that make clear the requirements and limitations of being a charitable organization. Koskinen said that on the new short form, “people certify that they’ve gone through the instructions” under penalty of perjury.

The IRS rejected the idea of the new Form 1023-EZ in 2012, but using an expedited process this year, adopted the new procedure on the recommendation of a small team composed largely of frontline workers from the scandal-plagued division of exempt organizations, according to the IRS.

Some charitable groups worry the IRS has opened the door to abuse of tax-exempt status that will undermine the credibility of legitimate nonprofits, which are allowed to accept deductible donations under section 501(c)(3) of the tax code. “The Form 1023-EZ will increase opportunity for fraud,” said Alissa Hecht Gardenswartz, president of the National Association of State Charity Officials, and will make it harder “to protect charitable assets from fraud and abuse and to ensure that charitable assets are used for the purposes represented to the public.”

Others worry that charities, nominally barred from political activity, will come to serve the same purpose as the powerful nonprofit organizations known as 501(c)(4)s, whose donations cannot be deducted from taxes. This could give an added tax benefit to donors who have recently funneled hundreds of millions of dollars into independent political campaign spending. “What we’ll see is the so-called dark political money that flowed into the (c)(4) world is going to begin to flow into the (c)(3) world,” says Marcus Owens, who was the director of the exempt-organizations division at the IRS from 1990 to 2000, and is now in private practice at the law firm of Caplin & Drysdale.

The change will result in approximately 40,000 to 50,000 fewer (c)(3) applications for the exempt-organizations division to review each year, Koskinen says. The division, whose main office is in Cincinnati, has been at the center of the IRS scandal over alleged political scrutiny of right-wing 501(c)(4) groups under then-head Lois Lerner. That scandal centers on shortcuts the office developed to identify (c)(4) groups for further screening, including screens for groups with the names that suggested an association with the Tea Party movement.

The current legal interpretation of tax regulations allows so-called (c)(4)s to engage in political activities as long as they don’t spend more than 50% of their money on politics. In the 2010 Citizens United ruling by the Supreme Court, those same groups earned the ability to buy campaign ads in federal elections, and tax laws allowed them to conceal the identity of their donors. Since the ruling, the number of applications to become a (c)(4) has doubled, to around 1,000 per year, Koskinen says. In the 2012 campaign, (c)(4)s spent approximately $300 million dollars on politics, according to the Center for Responsive Politics.

Much of that money was spent attempting to motivate voters by advertising positions on specific issues that divide candidates. Owens, the former IRS official, says such activity can be cast under the mission of a (c)(3) devoted to educational, religious or other permitted activities, opening the possibility of deductible dark money. “The candidate links to the issue, and then the tax-exempt organization’s job is to find the voters and make sure they know the message and hear it loud and clear up to election day,” says Owens. “That’s what the (c)(4)s were doing, but that kind of activity could be just as easily in a (c)(3), but it would have the added advantage of having tax deductibility attached to it,” Owens says.

Democratic defenders of the IRS and the exempt-organizations office say both have been deprived of resources, as the overall IRS budget was cut by nearly $950 million, or around 7.8%, from 2010 to 2013, according to the nonpartisan Government Accountability Office. In an April 2014 report, the GAO found the cuts had been offset through savings and efficiencies, and by reducing, delaying or eliminating services. Koskinen says budget cuts didn’t play a role in the change in charity rules. “Obviously we are resource-constrained everywhere across the agency,” he says, but “we would want to do this anyway.”

While charity groups agree the old process for receiving tax-exempt status was too cumbersome, they and others worry that now organizations with no true charitable purpose will seek to become charities. “It’s easier to get tax-exempt status under 1023-EZ than it is to get a library card,” says Tim Delaney, president and CEO of the Council of Nonprofits. As a result, Delaney says, bad actors “will be able to operate in the name of the charity, and the IRS will never be the wiser because they’re not looking at the underlying documentation.”

Koskinen says such worries are overblown. “There’s a faith that if someone has been forced to do more paperwork they’re going to be less nefarious,” he says. He says that to prevent potential abuse, the IRS will take samples of applications to see what percentage are being filled out incorrectly, and will monitor the number of applications to see if it spikes suspiciously as a result of the new rules.

Owens says the IRS may not be able to differentiate between truly small charities and those that knowingly plan to grow beyond $50,000 in annual income. “I haven’t seen any mechanism where the IRS would be legally able to go after an organization that applied within the EZ process but then fortune shined on them,” Owens says. He also says that because of outdated software, the IRS won’t be able to track active charities back from its master file to their originating documents. An IRS official speaking on background acknowledged the software problem.

Charities complain that the change was made with little consultation from their representative lobbying organizations. The IRS sped its enactment this year by routing the change through the White House’s Office of Management and Budget for public comment under the Paperwork Reduction Act, rather than through the normal public-comment process at the IRS, nonprofit officials contend. “I just wish the IRS had used a more inclusive process from the beginning,” says Delaney of the Council of Nonprofits.

The IRS studied a simplified tax-exempt form in 2012 but rejected the idea. The group that looked at the idea, made up of outside lawyers and experts in tax-exempt organizations, said that filling out the longer form forced groups to better understand the requirements of being a charity. The group said it “may also be easier to embezzle from a small charity,” so they should be subject to more, not less, oversight.

TIME justice

Dutch Supreme Court Blocks Extradition of Al-Qaeda Suspect to U.S.

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The lawyer of Dutch-Pakistani national Sabir Khan, Andre Seebregts (L), arrives in the courtroom of The Hague, on February 12, 2013. Robin Utrecht—AFP/Getty Images

The U.S. wanted to put Sabir Khan on trial in New York for supporting terrorist attacks against Americans in Afghanistan

In a setback for the Obama administration’s use of law enforcement to fight al-Qaeda, the Supreme Court of the Netherlands on Friday blocked the extradition to the U.S. of Sabir Ali Khan, a Dutch-Pakistani man wanted in New York for conspiracy to commit murder and support of al-Qaeda.

The U.S. believes Khan was involved in Taliban and al-Qaeda attacks against Americans in Afghanistan’s Kunar Province in 2010, according to U.S. court documents obtained by TIME. Khan was arrested by Pakistani forces in Sept. 2010, allegedly at the request of the U.S., and held at a secret prison where he says he was tortured.

Khan, whose mother was Dutch, has citizenship in the Netherlands and was eventually released to Dutch authorities and flown to Holland, where he was arrested. His Dutch lawyer argued that the government should determine whether Khan was arrested at the U.S. behest, and whether he would face a threat of further torture if he were extradited.

The Dutch Supreme Court Friday ruled that the extradition could not proceed because the Dutch Government had declined to look into the alleged U.S. role in Khan’s arrest. The Court, which did not address the threat of torture by the U.S., concluded “the Dutch State should have done some research in this matter,” says Dutch Supreme Court Spokeperson Mireille Beentjes. In blocking the extradition, the court stressed “the large interest of combatting torture worldwide,” Beentjes said, quoting from the court’s opinion.

Robert Nardoza, spokesman for the Eastern District of New York, where Khan was indicted on five counts in 2010, said, “We’re going to review the ruling by the Dutch Supreme Court and consider our options.”

Khan, who is in his late 20s, declined to comment when reached by telephone Friday. He remains free and living in the Netherlands. In January, he told TIME that while he suspects he is under constant surveillance, “Officially I have no restrictions on me.”

The case shows how the U.S. must increasingly rely on other states’ legal systems in countering terrorism as Washington attempts to wind down extraordinary powers granted to the president after 9/11. Those states are sometimes more or less aggressive than the U.S. would like, and counterterrorism officials are having to adjust as a result.

 

TIME Congress

Edward Snowden and the NSA Can Both Be Right

Edward Snowden NSA
US National Security Agency (NSA) whistleblower Edward Snowden speaks to European officials via videoconference during a parliamentary hearing on improving the protection of whistleblowers, at the Council of Europe in Strasbourg, eastern France, on June 24, 2014. Frederick Florin—AFP/Getty Images

Two reports raise the possibility that on balance, both the NSA collection programs and Snowden’s revelations have done more to advance the public good than to harm it

The yearlong debate over the leak of National Security Agency documents by former contractor Edward Snowden has divided the world into two camps. One sees Snowden as a patriotic public servant and believes the NSA programs he revealed are unjustified threats to civil liberties. The other sees Snowden as a traitor and views the NSA programs as necessary for national security.

Two reports this week raise a third possibility: that on balance, both the NSA collection programs and Snowden’s revelations have done more to advance the public good than to harm it.

On July 1, the independent agency charged with overseeing U.S. intelligence and counterterrorism programs to ensure they don’t infringe on privacy and civil liberties found the core of the NSA’s Internet collection programs did neither. In a 196-page report, the Privacy and Civil Liberties Oversight Board found both the NSA’s collection of Internet traffic from service providers, and the agency’s tapping of undersea cables, complied with the Constitution and Congress’s privacy protections for U.S. persons, and were therefore legal. It further found that the programs were valuable (two board members called them “extremely valuable”) for foreign intelligence and counterterrorism:

Presently, over a quarter of the NSA’s reports concerning international terrorism include information based in whole or in part on Section 702 collection.

On the other side of the equation, the PCLOB report comes less than a week after Adm. Michael Rogers, the head of the NSA, told the New York Times that while the damage done by Snowden was real, he did not believe “the sky is falling” as a result. Earlier in June, Director of National Intelligence James Clapper told the Washington Post that “we think that a lot of what [Snowden] looked at, he couldn’t pull down,” and that “it doesn’t look like [Snowden] took as much” as first thought.

Taken together, the reports raise the possibility that the NSA programs continue to contribute to U.S. national security and that the damage done by Snowden’s leaks is offset by the public awareness of and debate about surveillance.

There are, of course, qualifiers to such a best-of-both-worlds view. For starters, the PCLOB report raised concerns about how the NSA, CIA and FBI search the data once it is collected from the Internet and recommended in some cases curtailing those searches. In January, the PCLOB found that the NSA’s telephone metadata records program was effectively illegal and should be ended. And no one can seriously look at the Snowden revelations without considering the possibility that they damaged national security. A large majority of security experts recently polled by National Journal believe the damage caused by the leaks is greater than the public value of Snowden’s revelations.

But the PCLOB said it had not seen any evidence of “bad faith or misconduct” in either the NSA’s Internet collection program or the telephone metadata program: for all the speculative fear of a dystopian future, no one has been maliciously targeted, and the programs haven’t been hijacked by a malevolent Nixonian seeking political advantage. At the same time, Snowden’s revelations have initiated a broad, bipartisan public debate over government surveillance, and he has advanced the idea that in the digital age, privacy is always in play (including the commercial collection and sale of data on virtually every household in the country, as the Federal Trade Commission recently reported).

This may all sound Panglossian, but it fits with the conclusions of the late Senator Daniel Patrick Moynihan, scourge of secrecy, who believed there were many things that “should be made secret, but then released as soon as the immediate need has passed.” Standing at the threshold of the digital age in 1997, Moynihan declared:

In one direction we can reach out and touch the time when the leaders of the Soviet Union thought that the explosion at the nuclear reactor in Chernobyl could be kept secret from the rest of the world. In the other direction we can see a time — already upon us — when fourteen-year-old hackers in Australia or Newfoundland can make their way into the most sensitive areas of national security or international finance. The central concern of government in the future will not be information, but analysis. We need government agencies staffed with argumentative people who can live with ambiguity and look upon secrecy as a sign of insecurity.

At the least, the new reports raise the possibility that neither side in the continuing debate over Snowden’s revelations has the absolute high ground when it comes to the defense of the public good.

TIME Supreme Court

Supreme Court Limits Presidential Recess Appointment Powers

Barack Obama
President Barack Obama speaks about the situation in Iraq on June 19, 2014, in the Brady Press Briefing Room of the White House in Washington D.C. Pablo Martinez Monsivais—AP

The setback for President Obama is unlikely to stem the increasing political debate over the reach of executive power

Handing a victory to those who fear the executive branch has overreached in recent years, the Supreme Court has reined in the President’s power to appoint officers of the government when Congress is in recess. Weighing competing clauses of the constitution, the justices ruled Thursday that the President cannot circumvent the framers’ requirement that he seek the Senate’s advice and consent on executive branch appointments if Senators are only formally in recess for three days.

The ruling undermines hundreds of decisions made by the National Labor Relations Board in 2012 and for half of 2013, when the board comprised unconfirmed recess appointees. Those decisions will be revisited by the board that has since been confirmed by the Senate.

Nominally, the ruling is a win for Republicans who have made Obama’s use of presidential power a central plank of their mid-term election strategy. Sen. Orrin Hatch, the Republican former chair of the Senate Judiciary committee applauded “the Court’s willingness to stand up to President Obama’s flagrantly unconstitutional power grab,” while House Speaker John Boehner called the ruling a “victory for the Constitution, and against President Obama’s aggressive overreach.”

In fact, over the years, Republicans presidents have used recess appointments as often as Democrats. In 2013, the non-partisan Congressional Research Service found that Ronald Reagan had made 232 recess appointments, Bill Clinton had made 139, and George W. Bush had made 171. As of Jan. 2013, Obama had made 32. In that light, the ultimate effect of the Court’s ruling will be a slight shift in power to Congress from the executive branch.

Paradoxically, in recent years, Democrats have responded to Republican efforts to block Obama’s appointments by changing Senate rules to streamline the confirmation process. Last fall, Senate Majority leader Harry Reid forced through an ad hoc rule change effectively doing away with filibusters of all presidential appointments, except Supreme Court nominees—a dramatic move that curtailed the Senate minority’s ability to block presidential priorities. Reid said Thursday that thanks to that rule change, “today’s [Supreme Court] ruling will have no effect on our ability to continue ensuring that qualified nominees receive an up-or-down vote.”

By any ranking, America is one of the most free countries in the world. But particularly in recent years, as the 20th century threats of Communism, Fascism and National Socialism have faded, political discourse in the U.S. has tended toward apocalyptic predictions of democracy’s overthrow. Under George W. Bush, the left held that presidential signing statements threatened a fascist takeover of the country, while the right vigorously defended their use. Under Obama, the right sees the same presidential signing statements as an unconstitutional exercise of “king-like authority” while the left decries right-wing obstructionism.

The Supreme Court ruling Thursday on the fairly narrow issue of recess appointments is unlikely to placate either side’s concerns for long. House Speaker Boehner is set to bring an election-year law suit against the president next month in a self-described effort to “defend the Constitution and protect our system of government and our economy from continued executive abuse.”

–with reporting by Alex Rogers/Washington

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