Selective House Republican Committee ouster of Representative Ilhan Omar
A classic case of the pot calling the kettle black
There may be better cases of selective enforcement of a putative behavioral code, but if there are, they do not readily come to mind.
Yesterday, the Republican-controlled House voted to remove Representative Ilhan Omar (D-MN) from the House Foreign Affairs for insinuating that pro-Israeli lobbies were motivated by money. Ms. Omar later repented. The removal further pivoted on the Congresswoman’s likening killings perpetrated by the United States military to Hamas terrorism. She also retracted that comparison.
What’s wrong with this picture?
First, no House Rule or precedent even arguably proscribed Ms. Omar’s words. The law must warn before it strikes to satisfy due process, the idea behind the Constitution’s prohibition of ex post facto laws, which make innocent conduct criminal after the fact. The prohibition was not violated in Ms. Omar’s case because removal from a congressional committee falls short of criminal punishment. But her removal violated the spirit of the ex post facto prohibition. And as Saint Paul taught, “the letter killeth, but the spirit giveth life.”
Second, everyone but ingenues knows that money is the alpha and omega of politics. Thus, Mark Hanna, a United States Senator from Ohio and campaign manager for President William McKinley, quipped: “There are two things important in politics. The first is money and I can’t remember what the second one is.” Indeed, congressional committees are ranked as “A”, “B”, and “C” based on how much money a Member can be expected to raise from the special interests over which the committees exercise jurisdiction. Thus, the House Ways and Means, Appropriations, and Financial Services committees are ranked “A” and the House Administration Committee is ranked “C.” Appointment to an “A” committee requires a Member to raise $1 million or more for his or her party, indistinguishable from extortion.
Congresswoman Omar’s fixation on the pro-Israeli lobby was admittedly too narrow and suggested bigotry. What about the pro-Saudi, pro-UAE, pro-Kuwait lobbies which command influence in Congress because of lavish fundings of the lobbyists and the multi-billion-dollar United States arms sales to these oil and gas-rich dictatorships enriching defense contractors that fund political campaigns. Can there be any doubt that Saudi Arabia and its murderous prime minister Mohammed bin Salmon have escaped draconian sanctions and denunciations by Congress because of money and oil?
Additionally, to the extent Ms. Omar was stereotyping Jews, to that extent she was following the instruction of House Republican deity Donald Trump. During his 2016 presidential campaign, Mr. Trump proclaimed with scientific certainty, “When Mexico sends its people, they’re not sending their best…They’re bringing drugs, they’re bringing crime, they’re rapists….” He then stated he assumed, but he was not certain, that “some” are “good people.”
A Trump-era Department of Justice study of arrest data from the Texas Department of Public Safety (2012-2018) showed that undocumented immigrants had substantially lower crime rates than native-born citizens and legal immigrants across a range of felony offenses. Relative to undocumented immigrants, U.S.-born citizens are over 2 times more likely to be arrested for violent crimes, 2.5 times more likely to be arrested for drug crimes, and over 4 times more likely to be arrested for property crimes. In addition, the proportion of arrests involving undocumented immigrants in Texas was relatively stable or decreasing over this period.
Third, the United States commonly commits war crimes by employing force that kills or maims innocent civilians in pursuing a featherweight military objective. The principle of proportionality prohibits attacks on professed military targets that foreseeably will cause excessive incidental deaths to civilians when measured against the concrete and direct military advantage anticipated. The incidence of American war crimes in violation of the proportionality rule perpetrated by targeted drone killings is unknown because the facts are shielded by the President’s state secrets doctrine which Congress refuses to challenge. We do know of one case that leaked to the media: the drone assassination of Anwar Al-Awlaki’s teenage son, Abdulrahman, while eating dinner at an outdoor restaurant in Yemen.
Fourth, the Congresswoman’s removal violated free speech protected by the First Amendment. The Supreme Court held in Bond v. Floyd (1966) that a legislator enjoys the same free speech rights as private citizens: “The interest of the public in hearing all sides of a public issue is hardly advanced by extending more protection to citizen critics than to legislators. Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in governmental debates by the person they have elected to represent them.” There is no doubt that a private citizen who echoed Ms. Omar’s words could not be sanctioned by government.
Fifth, Article I, section 5 of the Constitution endows the House with authority to “punish its Members for disorderly behavior.” Words alone do not satisfy that constitutional threshold.
Ms. Omar is a Muslim, a woman, and an immigrant from Somalia. In 2019, President Trump said she should return to Africa. Her removal from the House Foreign Affairs Committee would seem to satisfy all the elements of selective enforcement elaborated by the Supreme Court in Yick Wo v. Hopkins (1886): “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”
The ouster of Rep. Omar from the House Foreign Affairs Committee is a form of punishment which is a direct result of open criminalization of her ideas. The whole idea of “free speech” per se - which congressional members should also enjoy - is nothing but a Constitutional guarantee that one’s ideas cannot be criminalized. To the extent one’s speech already contains criminal elements (such as threats of violence, death, or significant bodily injury) is to the extent that particular speech does not enjoy constitutional protections.
Speaking against the funding sources or political intentions or aspirations of a particular lobby may be nauseating to them but does not warrant non-protection or outright criminalization of one’s free speech. It does not meet the treshold of being viewed as a criminally harmful speech either.
Hence, I completely agree with Mr. Fein’s assessment in terms of stating that Rep. Omar’s free speech was violated by the House Foreign Affairs Committee which in my view is an outright despicable act.
As the legislative body in this country, Congress is expected to UPHOLD the Constitution, not VIOLATE it.
Thanks. This is a great description of the work product we can expect from the MAGA house. Your last paragraph has me thinking.
We have laws in some states forbidding Sharia Law - when there is no Sharia Law being practiced - and we have multiple states passing laws to prevent fraud concerning issues with voter ID and mail-in-ballots... yet no fraud was proven to exist.
In both cases we have laws with only political intent to strengthen one party and weaken the other. Or just political theater. It doesn’t seem to pass the constitutional muster you describe. What do you think?
I’ll post your last paragraph below...
“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”