Tuesday, June 30, 2015

What is the "Mercury and Air Toxics Standard?"

This was the rule in question in Michigan v EPA. It was passed in 2012 - here's a description of it:

The 2012 mercury and air toxics standards, which apply to about 600 power plants, established emissions limits for mercury, filterable particulate matter as a surrogate for toxic metals, and hydrogen chloride as a surrogate for acid gases. The EPA estimates that the standards will cost the power industry $9.6 billion annually.

- Click here for a more thorough explanation.

The simple issue the court ruled on - and was divided over - was whether the benefits from the rule were compatible with the $9.6 billion cost. The majority said it didn't, the minority said it did.

The rulemaking process is discussed in both 2305 and 2306 in the sections on the executive branch - especially the bureaucracy.It's the mechanism through which laws are clarified so that they can be implemented by the appropriate agency.

For specifics on the EPA's rulemaking process click here:

- EPA: The Basics of the Regulatory Process.

For a more thorough look at the rulemaking process click here:

- A Guide to the Rulemaking Process.

For detail on the Mercury and Air Toxics Standard click here.

The Supreme Court argued that these rules did not properly take into consideration the costs imposed on industry and that a lower court had to re argue the case with that in mind.

For more on the rule:

- Supreme Court Agrees to Hear Challenges To EPA’s Mercury Standards for Power Plants.
- The Dangerous Consequences of the Supreme Court's Ruling on Mercury Pollution.
- Mercury and Air Toxics Standards: 25 Years in the Making.

What is the Clean Air Act?

Since Michigan v EPA involved questions about the propriety of how the Clean Air Act was implemented, it's worth linking to some background on the Act itself - in addition to some history of air pollution legislation.

1955 - Air Pollution Control Act. Provided funding for research into the study of the causes and health consequences of air pollution, in addition to how it could be controlled. The research was to be done for 5 years by the Public Health Service. It was amended in 1960 and 1962 to extend funding and to authorize the Surgeon General's Office to student the effects of motor vehicle exhaust.The act did not establish a mechanism for implementing any solution to the problem.

1963: Clean Air Act of 1963. Created emission standards that could be applied to "stationary sources" which is the fancy term for factories and industry. It highlighted high sulfur coal as a source of pollution. It furthered funding of research and investigations of suspected polluters. It was amended to establish standards for automobile emissions in 1965. It was also amended in 1966 to assist local air pollution control programs, in 1967 to create air control regions and establish timetables for implementing state pollution plans and in 1969 to fund research into low emission fuels.

1970: National Environmental Policy Act. Creates President's Council on Environmental Quality.

1970: Clean Air Act of 1970. This is the most important of the bunch.Establishes the National Ambient Quality Standards which focuses on the reduction of a set of pollutants including carbon monoxide and ozone. Amendments added in 1977 modified the act's goals.

1970: Richard Nixon establishes the Environmental Protection Agency with an executive order. It is established to implement the requirements contained in the Clean Air Act.

1990: Clean Air Act Amendments. Focuses on the reduction of acid rain and leaded gasoline.

- EPA: History of the Clean Air Act.
- Clean Air Act Implementation in Houston: An Historical Perspective 1970-2005.
- EPA: Understanding the Clean Air Act.
- Clean Air Timeline.

Is this what brought air pollution to the public agenda?

I'll post a few items related to the previous post on Michigan v EPA, including a look at the history of air pollution regulations and how they've been implemented. Most legislation tends to follow an event that brings an issue to the public's attention - here's the event that is commonly argued to have brought the problem of air pollution to the public's attention.

For more:

- Donora Death Fog: The Crisis that Led to Modern Air Pollution Laws.
- Wikipedia: 1948 Donora Smog.

The Supreme Court rules that the EPA has to consider costs and benefits when it issues rules under the Clean Air Act

The case is Michigan v EPA, and is yet another 5-4 decision with Justice Kennedy deciding which side wins.

- ScotusBlog: Michigan v. Environmental Protection Agency.
- Oyez: Michigan v. Environmental Protection Agency.
- Click here for the decision.

Here is the issue presented to the court from ScotusBlog:

Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

And the facts of the case according to Oyez:

The 1990 amendments to the Clean Air Act require that the Environmental Protection Agency (EPA) regulate electric utility steam generating units (EGUs) if it finds that such regulation was “appropriate and necessary” after conducting a utility study. In December 2000, the EPA issued a notice that such regulation was necessary based on the results of the utility study, which showed that the mercury emissions from EGUs were a threat to public health. In 2005, the EPA reversed its findings and determined that it was not “appropriate and necessary” to regulate coal- and oil-fired EGUs. States and other groups petitioned for review, and the U.S. Court of Appeals for the District of Columbia Circuit held that the EPA’s attempt to reverse its findings was unlawful because it could not remove pollutant sources from the regulation list once they were on it. In 2012, the EPA confirmed that EGU regulation was necessary and promulgated emission standards. State, industry, and labor groups petitioned the appellate court for review of the EPA’s interpretation of the “appropriate and necessary” requirement with respect to these regulations. The appellate court denied the petition.

For media coverage:

- NYT: Supreme Court Blocks Obama’s Limits on Power Plants.

- The Hill: Supreme Court overturns landmark EPA air pollution rule.
- WaPo: Supreme Court: EPA erred in rule on toxic emissions from power plants.

Monday, June 29, 2015

The Elections Clause of the U.S. Constitution - and - What is a legislature anyway?

The Arizona Case below involved an interpretation of the following language:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Seems simple enough, but the case boils down to what "the Legislature thereof" refers to. The majority decision describes the conflict here:

The Arizona Legislature’s complaint alleged that “[t]he word ‘Legislature’ in the Elections Clause means [specifically and only] the representative body which makes the laws of the people,” App. 21, ¶37; so read, the Legislature urges, the Clause precludes resort to an independent commission, created by initiative, to accomplish redistricting. The AIRC responded that, for Elections Clause purposes, “the Legislature” is not confined to the elected representatives; rather, the term encompasses all legislative authority conferred by the State Constitution, includ­ Cite as: 576 U. S. ____ (2015) 3 Opinion of the Court ing initiatives adopted by the people themselves.

Some background info on the clause itself:

- The Heritage Foundation:  Election Regulations.
- The Founders' Constitution: Article 1, Section 4, Clause 1.

The Supreme Court rules that independent redistricting boards are constitutional

The case is Arizona State Legislature v. Arizona Independent Redistricting Commission. It's another 5-4 ideological vote with Anthony Kennedy as the tie breaker.

For more:

ScotusBlog: Arizona State Legislature v. Arizona Independent Redistricting Commission.
Oyez: Arizona State Legislature v. Arizona Independent Redistricting Commission.

We spent some time on this case in the spring when it was argued because it allowed us to look at the elections clause of the constitution as well as investigate what the word "legislature" could possibly mean. Such commissions allow a non-partisan group to draw congressional district, which makes them more competitive since there is no stake in the outcome. The majority party in state legislatures has an incentive to pad its lead over the minority party and tends to draw districts that are not competitive, This tends to suppress voter turnout since there's little need to show up in general elections.

Here are the facts of the case from Oyez:

Until 2000, the Arizona State Constitution granted the State Legislature the ability to draw congressional districts, subject to the possibility of a gubernatorial veto. In 2000, the Arizona voters passed Proposition 106, which amended the state constitution to remove the congressional redistricting power from the legislature and vest it in the newly created Arizona Independent Redistricting Commission (IRC).
In 2012, after the IRC approved a new congressional district map, the legislature sued the IRC and argued that Proposition 106 violated the Elections Clause of the federal Constitution (Art I, Sec. 4, Clause 1)--which declares that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...."--removed redistricting authority from the legislature and therefore that the new district map was unconstitutional and void. The legislature also requested that the district court permanently enjoin the IRC from adopting, implementing, or enforcing the new congressional district map. The district court held that Proposition 106 did not violate the Elections Clause of the federal Constitution.

And the question posed to the court:

Did Proposition 106 violate the Elections Clause of the federal Constitution by removing the congressional districting power from the state legislature?

- Click here for the decision.

Statewide officials in Texas push back against the gay marriage decision - but seem to accept that it is here to stay

As 2306 students learned - the state of Texas delegates the handling of the bulk of its paperwork to the counties, much of this is handled by the county clerk's office. This includes the processing of marriage licenses, which now have to be open to same-sex couples in addition to opposite sex couples.

State officials have written rules providing opportunities for clerks to not due so if they argue that this conflicts with their religious convictions.

A few items along those lines:

- Paxton: County clerks may refuse — on religious grounds — to issue same-sex marriage licenses.
Texas Attorney General Ken Paxton, a Republican social conservative, offered at least moral support Sunday for county clerks and their employees who feel their religious beliefs dictate that they decline to issue same-sex marriage licenses.
In a nonbinding legal opinion, Paxton said religious freedoms guaranteed by the First Amendment “may allow accommodation of their religious objections to issuing same-sex marriage licenses.”
The clerks who balk at licensing gay marriage “may well face litigation and/or a fine,” Paxton warned.
“Importantly, the strength of any particular religious accommodation claim depends on the particular facts of each case,” he concluded.
“But,” he added in a press release, “numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”

- Can a Texas county clerk refuse to issue a gay marriage license? It’s complicated.
. . . For an accommodation to be made, certain questions arise. "Is their religious belief substantially burdened?" Robson asked. "Is it overridden by their status as a public employee? Where is that line? Because as a public employee, you swear to uphold the Constitution." Public employees "don't have full 1st Amendment rights," she said, "because it's balanced against the interest of their employer, which in this case is the government." 
What's not allowed, in Robson's estimation, is for a clerk to shut down the issuance of licenses across the board over a personal objection. "The question in terms of accommodation has to do with individuals," Robson said. "So if the entire courthouse closed, that would not be an accommodation."

- First same-sex marriage licenses issued in Brazoria County.

After an opinion from the District Attorney's office this afternoon, County Clerk Joyce Hudman said Brazoria County is officially issuing same-sex marriage licenses. Hudman said her offices have been issuing licenses since 1:30 p.m. and will throughout the day.
District Attorney Jeri Yenne gave the county clerk's office a one-sentence opinion that issuing same-sex marriage licenses is mandatory based on the Supreme Court's decision today.
"As a follow-up to your inquiry regarding marriage licenses, please be advised that on today's date, the Supreme Court of the United States issued an opinion indicating the Fourteenth Amendment requires a state to license a marriage between two people of the same sex," Yenne's memo reads.

Friday, June 26, 2015

Some random news items related to Obergefell

- Republicans Vow a Religious Liberty Fight.
In a somber and defiant statement, Attorney General Ken Paxton proclaimed his next battlefront would be in defense of religious liberty.
“The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely held religious beliefs about marriage,” he said. “It is not acceptable that people of faith be exposed to such abuse.”
Hours later, Gov. Greg Abbott sent a memo to the heads of state agencies directing them to “preserve, protect, and defend the religious liberty of every Texan." That order “applies to any agency decision,” including granting or denying benefits, the memo says.

- Texas Counties' Responses to Marriage Ruling Vary.
Elated couples across Texas hurried into county clerks' offices Friday to apply for marriage licenses following the U.S. Supreme Court ruling legalizing same-sex marriage.
Some offices quickly began issuing licenses, including those in Travis, Harris, Tarrant, Bexar, Dallas, El Paso, Hidalgo and Midland counties. Other counties — including Maverick, Ector, Victoria, Potter and Bastrop — were waiting to hear from State Attorney General Ken Paxton on how to proceed.

- What Are States With Same-Sex Marriage Bans Doing Now?
With the Supreme Court's 5-4 ruling Friday morning, same-sex marriage is legal nationwide. For the 36 states, plus the District of Columbia, where such unions are already permitted, the ruling is cause for celebration for the LGBT community, and won't have any actual effect.
But what about the 14 states where gay marriage hasn't been fully implemented—where there are laws banning it, for example, or it's in legal limbo? Governors and attorneys general are facing a decision: Will they abide by the Court's ruling, or will they try to fight it?

How Same-Sex Marriage Advocates Won America.
For more than 20 years, the campaign to legalize same-sex marriage nationwide has been inching strategically toward the Supreme Court. And Friday, that strategy paid off: Same-sex couples can now get married in every state.
The Court's 5-4 ruling wasn't that surprising; for the past year or two, it even looked like a foregone conclusion. But the historic victory for gay couples didn't just happen; Justice Anthony Kennedy didn't simply wake up one day and decide it was time. It was the culmination of a long, intensive, and deliberate campaign.
Part of the strategy was to build public support; part of it was to win legislative victories in the states. But the ultimate target was always the Supreme Court.

The Supreme Court rules in favor of gay marriage

The argument - as best I can determine it - is that marriage is a fundamental liberty, which means that the government, state governments in this case, have to clear a very high hurdle in order to discriminate between same sex and opposite sex couples. The court effectively ruled that the state's have not done so. they do not have a compelling reason to deny same sex couples the right to so something other couples get to do.

The dissenters disagreed. Aside from arguing that the majority went beyond what the court should be allowed to do, they argued that there are legitimate reasons for why states could deny same sex couples the right to marry. Among these reasons was procreation and the usefulness of a man and woman in the household in order to raise children.

Here is the official holding of the court:

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

For more intelligent coverage:

- Click here for the court's opinion.
- Oyez: Obergefell v. Hodges.
- ScotusBlog. Obergefell v. Hodges.

More detail in upcoming days.

Thursday, June 25, 2015

The Supreme Court rules on Obamacare (again) and on housing discrimination

More on this later - some students are writing on these topics, so heads up if you are.

King v. Burwell: The court ruled 6-3 that federal subsidies to state insurance exchanges were legal under the wording of the ACA.

Texas Department of Housing and Community Affairs v. Inclusive Communities Project:  The court ruled 5-4 that a non-profit group could sue the state of Texas under Fair Housing Act for disparate treatment.

Clarity to follow, but you might want to check these sites out for now:

- ScotusBlog: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.
- ScotusBlog: King v Burwell.
- Oyez: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.
- Oyez: King v Burwell.

Supreme Court rulings on the Mann Act

Wikipedia lists the following Supreme Court decisions which were related to the Mann Act and clarified what was and what was not - constitutionally - covered under the law. The law made it a felony to engage in interstate commerce of "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose". But there's ambiguity in the terminology here that led to court challenges.

The biggest issue seems to be defining what an "immoral purpose" is. Note that the first case deals with the general question of whether the powers claimed by the act falls within constitutional parameters.

These cases led to that clarification:

Hoke v. United States, (1913). The Court held that Congress could not regulate prostitution per se, as that was strictly the province of the states. Congress could, however, regulate interstate travel for purposes of prostitution or "immoral purposes".
Athanasaw v. United States, (1913). The Court decided that the law was not limited strictly to prostitution, but to "debauchery" as well.
Caminetti v. United States, (1917). The Court decided that the Mann Act applied not strictly to purposes of prostitution, but to other noncommercial consensual sexual liaisons. Thus consensual extramarital sex falls within the genre of "immoral sex".
Gebardi v. United States, (1932). The Court held that the statutory intent was not to punish a woman's acquiescence; therefore, consent by the woman does not expose her to liability.
Cleveland v. United States, (1946). The Court decided that a person can be prosecuted under the Mann Act even when married to the woman if the marriage is polygamous. Thus polygamous marriage was determined to be an "immoral purpose".
Bell v. United States, (1955). The Supreme Court decided that simultaneous transportation of two women across state lines constituted only one violation of the Mann Act, not two violations.

This day in History - Congress passes the White-Slave Traffic Act - aka - the Mann Act

The year was 1910 and it marks the entry of the national government into the enforcement of morality laws - most prostitution. It also reflects the nature of attitudes about race at that moment.

I mention this law in sections that cover the increasing power of the national government in areas that had previously been reserved solely to the states. Given that prostitution is a commercial act that can involve commerce over state lines - the national government can claim a constitutional right to lass laws related to it. It's focus also on "immoral purposes" made it a flexible law that could be used for whatever purpose authorities wished.

For some links:

- History.com: Congress passes Mann Act.
- Wikipedia: the Mann Act.
- NPR: The Long, Colorful History of the Mann Act.

Cities in the United States had a large number of brothels up until this time. The passage of the bill was helped by a sudden moral panic that swept the nation that was wrapped up in attitudes about immigrants, the proper social order and the causes of prostitution.

One of the people trapped in the enforcement of the law was Galveston native Jack Johnson who flaunted conventional attitudes about race.

Tuesday, June 23, 2015

A hint about written assignment #4

I'll have these ready early Thursday, but this is what I'm considering.

For the 5 week GOVT 2305 I'll want a first draft of your 1000 word paper.

For both the 11 week classes (2305 and 2306) I'll likely have something related to the current controversy over the confederate flag - who saw that coming? For 2305 I'll probably ask how the candidates for the 2016 presidential election - especially the Republicans - will deal with this issue. For 2306, I'll likely ask something related to how the symbolism of the issue in Texas - especially in light of the recent Supreme Court decision over the flag on Texas license plates. Recall that last week the Supreme Court decided that if Texas doesn't want it, it can;t be forced to have it.

I hope this helps get going. Future posts will follow.

The Battle over the Tariff and the Second Party System

For 2305 students that have reached the section on political parties.

Here are links that describe the role that conflict over tariffs played party politics in the 19th Century. Remember that before the United States opted to support free trade, it protected its economy from, foreign competition - but not all sectors of the economy supported that policy.

- The Second Party System.
- The Whig Party.
- Slavery or Tariff?

The latest on the trade deal

Some random items for 2305 students. These might help put the bill making process in some context.

Senate Hands a Victory to Obama on Trade Pact.
- Senate advances fast-track trade bill for Obama.
Boehner: Trade process has been 'bizarre'.
Ted Cruz Flips on Fast-Track.
- Obama's Fast-Track Bill Inches Another Step Forward.

The governor uses line item veto authority to cut almost $300 million from the Texas Budget.

That amounts to .3% out of a total budget of $209 billion.


- Abbott wields veto pen to trim nearly $300 million from Texas budget.

For more on the budget itself go to the web site of the Legislative Budget Board.

Monday, June 22, 2015

The day after the veto deadline

The deadline to veto bills has passed. We now know what has passed and what has not.

- Click here for the official list of vetoed legislation.

Here's the latest on what went down over the weekend.

Abbott vetoes business tax break bill.

Gov. Greg Abbott on Saturday vetoed a bill that would have made it easier for big corporations to win breaks on school property taxes. It would have allowed a company to make one application for projects strung across multiple school districts. One opponent said the bill began as an effort to help energy giant ConocoPhillips qualify a salt dome storage facility for subsidies it was seeking for a natural gas plant and barge terminal near Houston. With his veto, Abbott disclosed publicly that he had misgivings about a 2001 law. The law promises the state will repay school districts if they reduce appraisals for big new manufacturing plants and other facilities.

Abbott vetoes 42 bills.

With a Sunday deadline looming to decide on legislation, Abbott finished Saturday with vetoes that included killing two bills on ethics reform, one of his top priority issues. Both bills created a loophole for a spouse’s financial dealings that he couldn’t accept.
“At the beginning of this legislative session, I called for meaningful ethics reform. This legislation does not accomplish that goal. Provisions in this bill would reduce Texans' trust in their elected officials, and I will not be a part of weakening our ethics laws. Serious ethics reform must be addressed next session - the right way. Texans deserve better,” Abbott said in a veto statement.
In all, Abbott killed 42 of the 1,408 bills and resolutions approved by lawmakers, not counting his line-item vetoes in the budget. That puts his vetoes in the middle of the pack for Texas governors, tying then-Gov. Mark White in 1983. Gov. Ann Richards vetoed 35 in 1991, and Gov. Preston Smith vetoed 66 in 1969.

Friday, June 19, 2015

The Best and Worst Legislators of the 84th Session

Its a biennial tradition.

- Texas Monthly.
- The Texas Tribune.

FYI: Angleton Republican House member Dennis Bonnen made the list of best legislators.

And a few criminal justice reform bills signed by the governor

He didn't veto everything.

- Abbott Signs Bill Decriminalizing Truancy.

House Bill 2398, which will go into effect as the upcoming school year begins in Texas, effectively ends the practice of jailing students for skipping school. Critics say it disproportionately affects minority and poor students.
"Criminalizing unauthorized absences at school unnecessarily jeopardizes the futures of our students," Abbott said in a statement Friday, explaining he signed HB 2398 as part of his broader mission to boost the state's education system.

- Abbott Signs Grand Jury Reform Legislation.

Gov. Greg Abbott has signed legislation reforming Texas' grand juries, officially scrapping the state's controversial "pick-a-pal" method of selecting people to sit on the panels.
Under House Bill 2150, the state will no longer use the outdated system that lets judge-appointed commissioners pick jurors, a nationally uncommon practice that critics say is rife with potential for conflicts of interest. Authored by Democratic state Rep. Carol Alvarado of Houston, HB 2150 institutes a more random process drawing jurors from broader pools of potential candidates.

- Abbott OKs Venue Change for Political Corruption Cases.

Ignoring calls for a veto, Gov. Greg Abbott signed controversial legislation this week that will allow elected and appointed state officials and state employees to bypass Austin prosecutors when they are accused of public corruption.
Abbott, a Republican, signed the bill Thursday without making a statement or staging a public signing ceremony. His press office did not respond to requests for comment left via email and over the phone.

- Click here for Texas Tribune's page on all Law and Order topics dealt with by the legislature.

From The Texas Tribune: Abbott Vetoes Four Criminal Justice, Public Safety Bills

For 2306 students thinking about next week's written assignment. Criminal justice reform was a dominant issue this past session. Here are areas where reform fell short - or at least was not supported by the governor.

- Click here for the article.

The latest round of vetoes, made public Friday morning, includes House Bill 1015, which would have required the Texas Department of Criminal Justice to notify a court sentencing a convicted felon when he or she has spent 75 days in a state jail. Supporters of the legislation said it would have kept offenders from falling outside of judges' radar and heightened awareness of rehabilitation programs, which tend to be less costly to the state than jail.

. . .  Another veto hit House Bill 1119, which would have directed the Texas Department of Transportation to work with researchers at Texas A&M University to study "fallen or damaged mile markers" along interstate highways in Texas. HB 1119 backers said it would have prompted mile-marker replacements that could help first responders find stranded motorists. Abbott said it would have been redundant.
. . . Abbott also vetoed House Bill 973, which he said would have doubled the compensation for emergency services commissioners in Harris County. The governor called the bill an "unnecessary expenditure of taxpayer money and an inappropriate departure" from laws already in effect.

The fourth veto struck House Bill 3291, an effort to make it easier to prosecute those who possess, purchase or sell oil or gas without proper permits from the state, according to its supporters, who appear to have included Railroad Commissioner Christi Craddick. In his veto statement, Abbott said he supports increased criminal penalties for oilfield theft, but said HB 3291 contained "overly broad language" that could lead to prosecutions that have nothing to do with that crime.

Thursday, June 18, 2015

If you have an hour and a half to kill - Magna Carta: Myth and Meaning

The Texas Department of Motor Vehicles does not have to issue license plates with Confederate Flags on them

So says the Supreme Court by a 5-4 vote.

More on this soon  but some 2305 students are writing this thing up.

- ScotusBlog: Walker v. Sons of Confederate Veterans.
- Oyez: Walker v. Sons of Confederate Veterans.
- The Supreme Court decision.

The court ruled that a license plate is government speech, which it can regulate, rather than private speech, which it cannot.

More on this soon.

A partial list of protectionist policies

In the previous posts, primary attention was given to tariffs. The shift from protectionism to free trade is accomplished by limiting not only tariffs, but a number of other domestic policies which interrupt the free flow of goods and services across international borders.

This should give you an idea of the types of policies free trade agreements attempt to minimize.

- Click here for a more descriptive list in Wikipedia.

- Tariffs
- Import quotas
- Administrative barriers
- Anti-dumping legislation
- Direct subsidies
- Export subsidies
- Exchange rate manipulation
- International patent systems
- Employment-based immigration restrictions
- Political campaigns advocating domestic consumption
- Preferential governmental spending

From Michael Lind: Free Trade Fallacy

Lind walks through the transition from America's commitment to protectionism to free trade.

- Click here for more on Michael Lind.

- Click here for the essay.

And a brief snippet:
. . . the US protected and subsidised its industries while it was a developing country, switching to free trade only in 1945, when most of its industrial competitors had been wiped out by the second world war and the US enjoyed a virtual monopoly in many manufacturing sectors. The revival of Europe and Japan by the 1970s eliminated these monopoly profits, and the support for free trade of industrial-state voters in the American midwest and northeast declined. Today, support for free-trade globalism in the US comes chiefly from the commodity-exporting south and west and from US multinationals which have moved their factories to low-wage countries like Mexico and China. Like 19th-century Britain, 21st-century America tells countries that are trying to catch up: do what we say, not what we did.

Has the United States always promoted free trade?

In a word, no.

Until the end of World War 2 the United States actively protected domestic industry through tariffs in addition to a series of policies collectively known as the American School of Economics, which can be traced back to policies initiated by Alexander Hamilton.

The simple reason for the switch was that prior to the end of the war, the economy United States was still relatively small - albeit growing. Protecting emerging industries from larger, more powerful competitors was politically necessary. After the war - thanks to the needs of war production coupled with the destruction of its economic competitors - the United States was the world's dominant economy and did not have to worry about foreign competition. It was in a better position to turn the tables and dominate those economies that it has previously feared. It was also in a better position to establish and dominate international trading organizations in order to ensure that the rules it established would benefit domestic industry.

That said, it is still commonly pointed out that the United States still protects domestic industry, often due to the political pressures that those industries can place on elected officeholders. Economic policy is not set by economists immune from public pressure, but by politicians subject to removal from office in each and every election.

25 American Products That Rely On Huge Protective Tariffs To Survive.

For background:

- Economic Nationalism.
- American School.
- American System.
- Tariffs in United States history.

Some historical milestones - I'll add some commentary later:

Protectionist Period:

1789 - Tariffs of 1789.
1791 - Alexander Hamilton's Report on Manufactures.
1812 - War of 1812.
1816 - Tariff of 1816.
1828 - The Tariff of Abominations:
1842 - Tariff of 1842.
1844 - James Polk elected on a platform that opposed high tariffs.
1860 - Republican Party platform includes support for high tariffs.
1861 - The Morrill Tariff.
1905 - Taft-Katsura Agreement.
1913 - the Underwood Tariff - AKA - Revenue Act of 1913. The establishment of the income tax reduced the need for tariffs.
1922 - Fordney–McCumber Tariff.
1930 - The Smoot-Hawley Tariff.
1934 - Reciprocal Tariff Act.

Free Trade Period:
1944 - The Bretton Woods Conference.
1944 - World Bank.
1944 - International Monetary Fund.
1948 - General Agreement on Tariffs and Trade.
1986 to 1994 - Uruguay Round.
1994 - Marrakesh Agreement.
1994: North American Free Trade Agreement.
1995: World Trade Organization.

The Department of Commerce has a list of all the free trade agreements the United States has. It states that there are 14 in force with 20 countries.

Click here for them.

A few items related to Governor Abbott's vetoes

For GOVT 2306's most recent written assignment.

Don't limit your search to these.

- From the governor's office: Governor's Veto Statements.
- Texas Legislature Online: List of Bills Vetoed by Governor.
- Amid Veto Period, Lobbyists Keep Working Abbott.
- Abbott Vetoes Overdose Defense, Emergency Detention Bills.
- Abbott Nixes Water Conservation, Contract Bidding Bills.
- Abbott veto lands in the middle of 'David and Goliath' fight.

Wednesday, June 17, 2015

What is free trade and what is the point of it?

I'll start posting now items relate to the Trans Pacific Partnership, as promised. Since the agreement promotes free trade, it's not unwise to define what that means and how it differs from alternatives.

Here's a quick definition from Investopedia:

The unrestricted purchase and sale of goods and services between countries without the imposition of constraints such as tariffs, duties and quotas.

Along with a justification of it:

Free trade is a win-win proposition because it enables nations to focus on their core competitive advantage(s), thereby maximizing economic output and fostering income growth for their citizens. Free trade enables nations to concentrate their efforts on manufacturing products or providing services where they have a distinct comparative advantage, according to the theory first espoused by economist David Ricardo two centuries ago. A free trade policy should enable a nation to generate enough foreign currency to purchase the products or services that it does not produce indigenously.

Free trade allows nations to concentrate on what they do best. It is then assumed that that increases overall wealth in the nation better than if it made everything itself. Countries that engage in free trade with other nations control their economies less than those that do. Free trade might then be best described as what it lacks than what it has. It protects its domestic businesses less than other nations meaning that it is less likely to impose protective tariffs and duties. But nations that engage in free trade are more likely to see outside forces disrupt internal institutions.

It is closely related to the ideas put forward in classical economics, which held that government should disrupt the economy as little as possible. The wealth of a nation had less to do with how much gold it had, or how much it did on its own, but in the value of the trade it could engage in.

Some definitions:

- Protectionism: These are trade policies which seek to protect domestic businesses and workers that might be harmed by external competition.
- Protective Tariff: A duty imposed on imports to raise their price, making them less attractive to consumers and thus protecting domestic industries from foreign competition.
- Tariffs: A tariff is a tax on imports or exports.
- Subsidies: A form of financial aid or support extended to an economic sector (or institution, business, or individual) generally with the aim of promoting economic and social policy.

For more:

- Library of Economics and Liberty: Free Trade.

From Monty Python's Terry Jones - What is Magna Carta? A brief explainer.

Happy Belated 800th Birthday Magna Carta

It's not an especially fancy document. As you can see. This has been argued to be a reflection of its utilitarian character.

We cover the document repeatedly in class, so no reason to hammer on it.

More - random - observations and evaluations of the 84th Session

- The 84th marathon ends with a major lesson. The authors points out what bills did not pass, that we might see in the 85th Session. He names constitutional carry, a ban on "sanctuary cities," and a repeal of the Dream Act.

Moody's lauds Texas move to shore up public pensions. Moody's Investors Services rates the credit worthiness of borrowers. The worse the credit, the higher the costs of borrowing - some of you know this. Many state and local pensions funds are under funded, which creates future financial obligations for each. Credit rating agencies don't like this so the legislature passed and the governor signed HB 9 which increased employee contributions to the Employment Retirement System of Texas.

- Abbott signs $4 billion, two-year tax cuts package. See also Abbott Predicts "New Era of Job Growth" With Tax Cuts. The governor signed a series of bills related to taxes and fees, including HB 32, HB 7 and SB 1.

- Freshman teasing behind, Burrows pleased with accomplishments of session. A Lubbock paper provides an inside look at the first term of an area legislator.

- Is Texas spending $800M to create its own border patrol? Increased funding on the border was one of the governor's emergency items as the legislature began, and the legislature responded. Critics questioned the need for the increased presence by state forces given that national ad local authorities are already in place.

- Abbott Signs Bill to Limit Pollution Lawsuits. HB 1974 seems focused on efforts of Harris County to sue area polluters. Environmental regulations seems to have taken a step back this session.

Tuesday, June 16, 2015

Is the United States ruled by 31,976 people?

One of the themes in the early material in this class was that keep a republic - a government based, indirectly, on the people was tough to do. There are forces at work that attempt to constrict power to a smaller handful of elites.

We referred to this as oligarchy, which is a general term describing any system that allows a small elite to rule. More recently the term plutocracy has been used. It refers to ruled by the wealthy. Some argue that the US is becoming more a plutocracy than a democracy. Here's an example.

- Click here for 5 signs America is devolving into a plutocracy.

2305 students will note that the Supreme Court has made recent rulings allowing wealthy people to spend more and more funds on elections. The Center for Responsive Politics conducted a study recently that argued that the increase in spending on elections is driven by the 1% of the 1%.

It might be worth a quick read:

The Political One Percent of the One Percent in 2014: Mega Donors Fuel Rising Cost of Elections.

Monday, June 15, 2015

Presidential Hairstyles

Can't be serious all the time ya know.

Can you name them?

Magna Carta and the Emergence of Parliament

Can a Board of Dental Examiners prevent non-dentists from offering teeth whitening services?

One of the cases up for grabs dealt with this question.

- Click here for North Carolina Board of Dental Examiners v. Federal Trade Commission.

The direct answer was no. They - and any other similar licensing board - can be sued for trying arbitrarily to stifle competition.

The reason - as best I can tell - is that doing so allows for monopolistic practices and therefore violates federal anti-trust laws. Normally a state can make its agencies immune from such lawsuits, but the court ruled that that is not necessarily the case if the agency is controlled by a group of professionals that can regulate themselves. In this case, dentists in the state could issue regulations protecting their control of a service. While there can be good reasons for doing so - we don't want just anyone to be able to perform surgery - that same power should not be used to unduly control the market place.

Students interested in writing up this decision might want to look at how the court
struck that balance.

Some useful related terminology.

- License: a document that allows for an activity to be performed - by the holder of the license - the would otherwise be specific. The licensee can be private of public entity.
-  State Licensing: Permission granted by the state for a person or organization to perform a service or engage in an activity or profession. This falls under the reserved powers of the state. Aside from issues raised in cases like this one, the national government giver states leeway in these matters.  For information regard the licensing process in Texas click here for the Texas Department of Licensing and Regulation
- State Licensing Board: The relatively small group of individuals affiliated with a profession that are allowed to determine who can practice that profession. These are established by the state legislature and can be found in the Texas Occupations Code - click here for it. Most of these boards are composed of members who are appointed by the governor - which explains why professional associations get involved in politics. The ability to be able to regulate one's profession is a principle source of power. Click here for a list of the positions that the Texas Governor can appoint.
- Professional Association: Similar to a state licensing board except that they have no governing power. They are nonprofit organizations that seek to further the interests of a particular profession. This includes using the political process to have state boards established and having influence over who is on those boards.
- State Action Antitrust Immunity: A doctrine stating that "state and municipal authorities are immune from federal antitrust lawsuits for actions taken pursuant to a clearly expressed state policy that, when legislated, had foreseeable anti competitive effects. When a state approves and regulates certain conduct, even if it is anti competitive under FTC or DOJ standards, the federal government must respect the decision of the state.' - Source
- Antitrust Law: "Legislation enacted by the federal and various state governments to regulate trade and commerce by preventing unlawful restraints, price-fixing, and monopolies; to promote competition; and to encourage the production of quality goods and services at the lowest prices, with the primary goal of safeguarding public welfare by ensuring that consumer demands will be met by the manufacture and sale of goods at reasonable prices." - Source.
- Sherman Antitrust Act: " . . . a landmark federal statute in the history of United States antitrust law (or "competition law") passed by Congress in 1890. It prohibits certain business activities that federal government regulators deem to be anti-competitive, and requires the federal government to investigate and pursue trusts." - Source.
- Federal Trade Commission: "an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act. Its principal mission is the promotion of consumer protection and the elimination and prevention of anticompetitive business practices, such as coercive monopoly." - Source.
- Regulatory Capture: ". . . a form of political corruption that occurs when a regulatory agency, created to act in the public interest, instead advances the commercial or special concerns of interest groups that dominate the industry or sector it is charged with regulating." - Source.

From Super Houston: A Garden for Houston? Or a Community Bamboozled?

A local blogger provides a fascinating - and depressing - look at the local decision-making process.

- Click here for the story.

A local community was effectively shut out of the process for determining whether a local golf course would be allowed to develop into a botanical garden. She call this a failed public process, and provides a useful reminder of who runs Houston.

The more I learn, the more frustrated and infuriated I become. My frustration is not related to whether we should have a Botanic Garden, though I remain ambivalent on this topic, it is more because of the absolute absence of a public process. Frankly, even calling it a public process is misleading, as there was nothing public about it. Increasingly decisions at the city level, and in fact at all levels of government, are made for many of the wrong reasons and without a public vetting process. In our city government agencies cater to tourists and visitors instead of supporting Houstonians; and instead of building our neighborhoods, the City gives away millions to Wal-mart and budgets a $75 million slush fund for private developers to build luxury living downtown. How did we get here? And what does it have to do with the proposed Houston Botanic Garden?

A few items for 2306

These were collected from Quorum Report - which lists a variety of topical political stories each day. Hopefully they illustrate some aspect of the reading materials.

- From the Texas Tribune: Taylor's San Antonio Win a Wake-Up Call for Democrats. San Antonio elected a new mayor, one who as not part of the traditional Democratic / Latino coalition. Turnout - as is generally the case in Texas - was very low. San Antonio has 1.4 million residents and only 33,000 showed up in the run-off election to pick the mayor. The authors wonders what this bodes for the status of the Democratic Party organization in the state and on the county level. Voter engagement is suspect as well.

- Houston Chronicle: Budget rider pulls the reins in on racing commission funding. We will post more soon on the Texas Budget. This story points out how battles between the legislature and executive agencies are often waged in budgetary language. The Budget Committee has attempted to reign in the Texas Racing Commission in order to serve the interests of groups that are opposed to its efforts to expand gambling in the state.

- Yahoo News: Texas planners look to aquifers to prepare for next drought. File this under agenda setting. The recent rains - temporarily anyway - have ended the drought in Texas, but lots of rain water ended up in the Gulf of Mexico rather than Texas' aquifers. Water policy types are looking at ways to divert future rainfall to more productive purposes.

- Lubbock Avalanche-Journal:  Debate over state, city control set to continue. One of the more consequential battles in the legislature had to do with state vs local control of local matters like drilling and business regulations. There are still unsettled matters which will likely rage in the 85th session.

- Texas Tribune: Eltife Not Running for Re-election in 2016. Speaking of the 85th Legislature, candidates are already lining up for the 2016 state elections. While the legislature itself only meets briefly, the battles over legislative matters never ends.

Sunday, June 14, 2015

What is the Trans-Pacific Partnership?

An effort to grant the president "fast track trading authority" for the Trans-Pacific Partnership failed in the United States House of Representatives Friday. This vote allows us to dig into number of related issues covered in GOVT 2305, so The following few posts will cover them.

Before digging into that, here's a good question:

But what is the Trans-Pacific Partnership?
- Vox: What is the Trans-Pacific Partnership?
- NYT: The Trans-Pacific Partnership Trade Deal Explained.
- OnTheIssues: Background on Free Trade.

What conflicts exist over the TPP?
- Common Dreams: TPP, Peace and Conflict: It’s Not about Trade, It’s about How We Trade.
- Huffington Post: Cutting Through the Noisy TPP Debate.
- Esquire: The Trans-Pacific Partnership Debate Hits the House.
- Washington Post: Is TPP trade deal a massive giveaway to major corporations?

Saturday, June 13, 2015

What is a search? Is forcing a person to wear an ankle bracelet to monitor location a search as covered under the 4th Amendment?

These were the questions presented to the court in Grady v. North Carolina.

Click here for ScotuBlog's page on Grady VS North Carolina.

Here was the specific issue presented to the court:

Whether the state of North Carolina performs an unconstitutional search when it requires a citizen to wear a GPS monitoring ankle bracelet for the rest of his life based only on the citizen's status as a recidivist sex offender and where there is no finding that he is a threat to society.

As best as I can tell, there was no substantive decision on the issue - that is whether the state could force him to wear the monitor - but instead whether having the monitor on amounted to a search, meaning that the case should be considered under the 4th Amendment. The court decided that it was, and sent the issue back down to the lower courts to be reheard.

This should help explain why court proceedings can be so long sometimes. New technologies - like GPS devices - force the court to rethink what otherwise simple terms like "search" mean in a digital age. Students who selected this case might want to consider building on that question. This might be especially pertinent since you may well be holding something right now that allows you to be similarly monitored - or searched.

For background:

Affixing ankle bracelet to monitor suspect is a “search,” Supreme Court holds.
- GPS monitoring of sex offenders for life? Supreme Court reverses N.C. case.

And some related terms and concepts used in the case:

- United States v Jones: A case which preceded Grady. It argued that placing a GPS tracking device was a search under the 4th Amendment.
- Certiorari: ". . . the writ that the Supreme Court of the United States issues to a lower court to review the lower court's judgment for legal error (reversible error)"
- Granted, vacated, and remanded: From Wikipedia: "a type of order issued on occasion by the Supreme Court of the United States, in which the Court grants a petition for certiorari, vacates the decision of the court below, and remands the case for further proceedings (hence the acronym by which they are known). An order of this sort is appropriate when there has been a change in the law or a precedential ruling subsequent to the lower court or agency's decision; the Supreme Court simply sends the case back to the lower court to be reconsidered in light of the new law or the new precedent."
- Discretionary review: "Discretionary power is a judicial appellate power, in which the appellate body may decline to hear the appeal. In this, the appellate courts have the discretionary power to decide on which appeals to be considered from among the cases submitted to them."

Friday, June 12, 2015

Local Control in the 84th Legislature

The previous post mentioned that legislation had been introduced - bit not passed - in the recently completed regular session that sought to modify TIRZs. It proposed limiting their terms of office, which would limit their ability to function effectively, and perhaps more importantly, independently of how the state might wish them to.

This was among a handful of bills that sought to limit local governments - many of which passed. No one in 2306 selected to look at this issue, but I think some people still need to select a topic. I recommend looking into this.

The Texas Tribune has a page devoted to this.

- Click here for it.

It's a good start.


Early on in GOVT 2306 - in the discussion on local governments - the concept of a Tax Increment Reinvestment Zone is introduced. Simply put, its a funding mechanism - a political subdivision - that allows a defined area within a city to collect funds for projects that improve that area. These are mostly used to enhance the economic and viability of the area.

The Houston Press writes up recent controversies over the recent use of TIRZs.

- Click here for the article.

It also points out recent - unsuccessful - efforts to modify them in the 84th Legislature. The power to establish these zones dates back to the Legislative session that met in the spring of 1987 and the passage of the Tax Increment Financing Act - which is now found in the Texas Tax Code, Title 3, Subtitle B, Chapter 311.

For more on the concept of tax increment financing:

- Wikipedia: Tax increment financing.
- Wikipedia: Tax Increment Reinvestment Zone.

And more on the use of TIRz's in Houston:

- What is a TIRZ?
- Not-so-super-TIRZ.
TIRZ funds create predicament for cash-hungry city.
- Houston's TIRZ Explosion.

Thursday, June 11, 2015


The 2016 elections are predicted to shatter all previous spending records.

To figure our where all the money was spent on, the authors investigated Obama's 2012 spending - which totaled over $750 million.

- Click here for the article.

Most of the money was spend on advertisement. No big surprise. One major change in 2016 will be the increased amount of outside spending. These are now largely unrestricted and often are undisclosed.

Here's a graphical breakdown of the Obama campaign's spending:

From the Texas Tribune: Ethics Commissioners: Lawmakers Went Backward in 2015

At least one 2306 student is focusing on ethics reform in the recent legislative session - which is usually shorthand for campaign finance.

Though the governor named ethics reform as one of his priorities, its didn't happen. Unless the goal was to weaken exiting laws. That's the assessment of what the legislature did according to the Chair of the Texas Ethics Commission.

- Click here for the article.
“If there was any ethics reform, it was in reverse,” Paul Hobby, chairman of the Texas Ethics Commission, said Thursday at a public meeting that came less than 10 days after lawmakers adjourned their 84th session with the following accomplishments:
- Creating a new loophole to protect lawmaker spouses from certain financial disclosure- Giving themselves and state bureaucrats hometown prosecution when they're accused of white-collar crimes in Austin- Failing to agree on and pass sweeping ethics reform
“There are some bills on the governor’s desk that just scare me to death,” Commissioner Jim Clancy, the body’s former chairman, said at the meeting.
The bipartisan commissioners largely focused on Thursday on measures awaiting Abbott’s signature that would open up a “spousal loophole” allowing politicians to shield information about their spouses’ financial holdings.
The proposals would essentially repeal an agency rule, drafted last year in the wake of ethics violations by a former House member, that spells out what must be included in personal financial statements filed by the governor, members of the Legislature and other high-ranking state officials – including certain information about their spouses’ property and financial activity.

The Tribune previously discussed the collapse of ethics reform here.

The legislature seems to have made it easier to keep financial information secret, meaning that the general public has little idea what interests are influencing legislators.

- Click here for all proposal made regarding ethics this past session.

Are Supreme Court Justices free from outside influence?

2305 students might want to think this over since you're looking at Supreme Court cases. The federal courts are designed as they are - with appointed judges who serve for life - in order to make them independent, but are they?

They are the only court without an ethics code.

An increasing number of people - including members of Congress - think this is a big problem.

- Click here for the article.

Traditionally, Supreme Court justices were near recluses, churning out rulings as they quietly worked behind stately marble columns. But they have begun to pop up in public venues—giving speeches, promoting books, celebrating marriages and even attending operas—like never before. Their new celebrity is also drawing a flurry of new, and often critical, scrutiny.
Watchdog groups are calling on the nine justices, who are appointed for life barring a moral or ethical cataclysm, to be more open and accountable, particularly about any stock investments they may have in the corporations whose legal disputes often wind up on their docket. But it’s highly unlikely the court will drop its veil of secrecy and embrace any efforts to curb its freedom to act as final judicial arbiter as it sees fit.
One change urged by a group called “Fix the Court” calls on the justices to disclose more information about any possible or actual conflicts of interest that arise from their financial holdings and other outside entanglements.
Fix the Court is hardly alone. The nine justices have been urged to change their ways for decades, particularly amid controversies like 2000 Bush v. Gore presidential contest decision was decided or the recent campaign finance remake in Citizens United.
But calls for curbs have fallen on deaf ears, leaving the court as the country’s only judicial body without an established ethics code. The Supreme Court relies on voluntary compliance. In April, Democratic lawmakers introduced the Supreme Court Ethics Act, which would require the top court to adopt written ethics rules within six months of the law’s enactment.
“There is absolutely no reason why the Supreme Court justices shouldn’t be subject to the same code of conduct as all other federal judges,” said Senator Chris Murphy, Democrat of Connecticut and the bill’s sponsor, when introducing the bill. Since 1973, all other federal judges have been required to adhere to a code of conduct.

From Vox: Virginia's congressional map has been thrown out by judges for racial bias

OK - one more post about the courts and racial gerrymandering. Vox reports on another case that might well end up in the Supreme Court.

- Click here for the article.

On Friday, a federal court panel reaffirmed an earlier decision throwing out Virginia's map of congressional districts, due to unconstitutional racial gerrymandering.
The panel found that one district, the third, was unconstitutionally racially gerrymandered in violation of the Equal Protection Clause. "Individuals in the Third Congressional District whose constitutional rights have been injured by improper racial gerrymandering have suffered significant harm," a two-judge majority of the panel wrote.
Virginia is widely believed to be one of the most gerrymandered states in the country. In 2012, Republican House candidates won just 51 percent of the votes cast in the state — but they ended up winning eight of the state's 11 congressional districts.

The last sentence in a nutshell explains why gerrymandering happens. It allows a narrow majority to become a super-majority.

Wednesday, June 10, 2015

Is there a right to die?

The previous post touched on that question, and since 2305 and 2306 students should be looking at the respective Bills of Rights in the U.S. and Texas Constitutions, it's worth linking to a few items focused on whether such a right exists. It's certainly not listed in the Bill of Rights, but neither is the right to privacy, contract, and work among many other things people believe they have a right to do.

The U.S. Supreme Court has dealt with this issue before though largely because medical science has developed ways to keep people alive seemingly indefinitely in vegetative states. The question is whether people can let it be known that they do not wish to be kept alive artificially - or to not be resuscitated.

Here's a look at some of these cases (text is from Oyez):

- Cruzan v. Director, Missouri Department of Health.

Question: Did the Due Process Clause of the Fourteenth Amendment permit Cruzan's parents to refuse life-sustaining treatment on their daughter's behalf?

Decision: In a 5-to-4 decision, the Court held that while individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights. Absent "clear and convincing" evidence that Cruzan desired treatment to be withdrawn, the Court found the State of Missouri's actions designed to preserve human life to be constitutional. Because there was no guarantee family members would always act in the best interests of incompetent patients, and because erroneous decisions to withdraw treatment were irreversible, the Court upheld the state's heightened evidentiary requirements.

- Vacco v. Quill.

Question: Did New York's ban on physician-assisted suicide violate the Fourteenth Amendment's Equal Protection Clause by allowing competent terminally ill adults to withdraw their own lifesaving treatment, but denying the same right to patients who could not withdraw their own treatment and could only hope that a physician would do so for them?

Decision: Employing a rationality test to examine the guarantees of the Equal Protection Clause, the Court held that New York's ban [on physician assisted suicide] was rationally related to the state's legitimate interest in protecting medical ethics, preventing euthanasia, shielding the disabled and terminally ill from prejudice which might encourage them to end their lives, and, above all, the preservation of human life. Moreover, while acknowledging the difficulty of its task, the Court distinguished between the refusal of lifesaving treatment and assisted suicide, by noting that the latter involves the criminal elements of causation and intent. No matter how noble a physician's motives may be, he may not deliberately cause, hasten, or aid a patient's death.

- Gonzales v. Oregon.

Question: Did the Controlled Substances Act authorize the attorney general to ban the use of controlled substances for physician-assisted suicide in Oregon?

Decision: No. In a 6-3 opinion delivered by Justice Anthony Kennedy, the Court held that Congress intended the CSA to prevent doctors only from engaging in illicit drug dealing, not to define general standards of state medical practice. Moreover, the CSA did not authorize Attorney General John Ashcroft to declare a medical practice authorized under state law to be illegitimate.

So it seems that the principle of federalism plays the key role here. It's up to each state to determine whether their citizens have a right to die. The national government has no authority to limit that right. The court has never ruled on whether the national government can force states to recognize such a right largely because no federal court has tried to do so. It might be a interesting exercise to determine whether such an argument could be sustained.

End of life care in the Texas Legislature

At least one 2306 student is interested in looking at how the Texas Legislature dealt with end of life care.

Click here for info from the Texas Tribune's Texas Legislative Guide.

According to the Texas Tribune, there was little activity on that front and nothing actually passed with the exception of a bill that "would allow terminally ill patients who have exhausted other treatment options to try experimental drugs that have passed at least the first of three FDA trial phases." This is called a "right to try bill." As of this writing it is sitting on the governor's desk for a possible signature or veto.

- Click here for the legislative history of HB 21.
- Click here for an analysis of the bill.
- Texas Tribune: Lawmakers Push "Right to Try" Experimental Drugs.
- Texas Tribune: House Backs Bill Pushing "Right to Try" Experimental Drugs.

Two bills related to end of life care for pregnant women did not go far. The bills offered competing proposals about the status of pregnant women who are on life support. One would have allowed the family to take her off life support, while the other would have mandated she be kept alive until the child was born.

Here are the two bills:

- HB 1901.
- HB 3183.

And two stories related to the proposals. including the incident that has driven each bill:

- Texas Tribune: Lawmakers Consider End-of-Life Care for Pregnant Women.
- Texas Tribune: Competing Bills Filed Over End-of-Life Care for Pregnant Women.

Other states are far more involved in end of life issues, including questions related to the degree of control people should have other these decisions. Perhaps the most controversial of these is the question about whether there is a right to die, and whether people have the right - as a result - to have assistance in suicide should they have a terminal disease.

The recent case of Brittany Maynard last year brought this to the public agenda. Only five states recognize a right to die, these are Vermont, Montana, Oregon, Washington, and New Mexico. It would be interesting to analyze why Texas is resistant to these laws - I would suspect religious objections matter.

That doesn't mean that there might be efforts to bring items like this to the legislature in the future though. Apparently the bulk of spending on health care happens in the final years of life, which means that if this is phrased as a spending issue, it may have traction.

Update: I missed this one: HB 3074.

Here's info from Wikipedia:

In 2015, the Texas Legislature unanimously passed HB 3074 by State Representative Drew Springer (R-Gainesville), a bill to stop dehydration and starvation of persons with disabilities by reforming the aspect of the statute which allowed healthcare providers to remove artificial nutrition and hydration against a patient's wishes. HB 3074 is the first reform effort to garner universal support from advocacy groups and boasted 4 joint authors and 81 co-authors in the House of Representatives. It was unopposed in the House and Senate and awaits the governors' signature. It is the first reform to the Texas Advance Directives Act since 2003.

Just to beat this dead horse - here's a video on gerrymandering

Gerrymandering in Texas

We are experts of the art. The current map for congressional seats was designed to crack both the Hispanic / Democratic vote in South Texas, and the Democrats in Austin. Notice that Austin does not have a single representative. Instead, the city is divided into five separate U.S. House districts.

But according to Vox, Texas is not in the top 5 of gerrymandered states.

Examples of packed and cracked districts

Notice that the location of each voter does not matter. What matters is how each district is drawn. Representation varies depending on how the districts are drawn, meaning that power belongs to whoever draws the districts.

- Click here for the source.

It provides great background on gerrymandering overall.

For more on the subject you may also want to read through this: Gerrymandering Explained.

The Supreme Court rules that Alabama drew legislative districts in order to restrict black representation.

This was the result in two related cases:

- ScotusBlog: Alabama Legislative Black Caucus v. Alabama.
- ScotusBlog: Alabama Democratic Conference v. Alabama.
- Oyez Project: Alabama Legislative Black Caucus v. Alabama.

The court ruled - by a 5-4 vote - that the state was guilty of racial gerrymandering - more specifically a tactic known as packing. By successfully packing members of a group in a small number of districts, then the voting strength of that group is minimized. If that group happens to be a racial group - especially a racial minority - that violates both the 14th and 15th Amendments as well as the Voting Rights Act. The problem is that proving racial gerrymandering can be difficult to do. The court's majority ruled that racial gerrymandering should be considered on a district by district method - taking each individually - rather than statewide, which is what a lower court had ruled.

For analysis from smarter people than me:

- Supreme Court sends Alabama redistricting plan back to lower court.
Opinion analysis: A small victory for minority voters, or a case with “profound” constitutional implications?

For students who are focusing on this case, you may wish to consider the following topics, even if you aren't writing about this case, you should be familiar with the following as they arise in different contexts in both 2305 and 2306.

Gerrymandering: An attempt to draw an electoral district for political advantage.
Racial Gerrymandering: An attempt to draw electoral districts to impact - favorably or negatively - the strength of a racial group. This is unconstitutional since race is a suspect classification under the equal protection clause. Since parties are not a protected classification, partisan gerrymandering is not illegal, but since party identification increasingly varies based on race, it can be difficult to distinguish between the two.
Packing and Cracking: These are the names of two gerrymandering techniques. Packing refers to when members of a group are packed into a small number of districts so that their competitiveness elsewhere is minimized. Cracking refers to when the members are spread out to a number of districts so that the group is not a majority in any district.
14th Amendment's Equal Protection Clause: Added to the Constitution after the Civil War, clause prevented states from treating persons in their jurisdiction unequally, though it does not define "equality." 
15th Amendment: For the first time - again just after the Civil War - the Constitution negated the ability of states to deny the right to vote to people on the basis of race, among other things.
Reynolds v Sims: The 1964 Supreme Court case that mandated that state legislative districts had to be roughly equal in population.  
Voting Rights Act: An act Congress passed in 1965 to strengthen the voting rights of minority groups primarily in the South by outlawing tactics that had minimized their ability to vote, as well as the impact of their votes. It also established agencies that could enforce the law. It also mandated that states with a history of racial discrimination had to have changes in their elections, as well as districts, pre-cleared by a panel of federal judges or the Justice Department. 
- Shelby County v Holder: A 2013 Supreme Court case which limited the Voting Rights Act by arguing that throwing out the map that had been used  to determine which states were subject to pre-clearance.