- Click here for the article.
A question asking Americans whether they’re citizens won’t go on the 2020 census form — for now. Opponents of the citizenship question had argued that the Trump administration violated the law by adding it over the objections of Census Bureau researchers who said that it was likely to discourage households with noncitizens from responding to the decennial count. In an ostensibly unanimous but deeply divided Supreme Court decision Thursday, the court ruled that the Trump administration’s explanation for why it wanted to add the question didn’t pass the sniff test — but the case could have had a very different outcome if the Trump administration hadn’t provided a clearly contrived rationale.
Commerce Secretary Wilbur Ross had claimed that the Justice Department needed data from the question to help enforce the Voting Rights Act, but three federal judges have ruled that Ross had already decided to add the question — and that he pressured the Justice Department to provide him with a reason. In a part of the ruling that was joined only by the court’s liberals, Chief Justice John Roberts wrote that there was “a significant mismatch between the Secretary’s decision and the rationale he provided.” In other words, the Trump administration had the right to add the question — its downfall was the dubious reason it supplied. The court did, however, leave a path for the question to be added — if the administration can persuade the courts to accept a different explanation in time.
The fate of the question now hinges in large part on when the census forms actually need to be printed. The Supreme Court’s decision sent the case back to the lower court, where the Commerce Department will have an opportunity to respond. The legal battle over the citizenship question has, so far, unfolded under the shadow of a deadline — the Census Bureau is supposed to start printing census forms on Monday. But a government witness suggested during the trial that the agency could, in theory, wait until as late as Oct. 31 to finalize the questionnaire. It’s not clear if this is actually the case, since the scale of the census’s printing project is enormous and the first census forms are due to be distributed in Alaska in January. It’s possible that the Commerce Department could provide a legitimate rationale, and the question could still go on the form. But the Trump administration may not be able to come up with a more convincing explanation — and the department will be racing against the clock.
Meanwhile, a separate legal battle over the question is brewing in the lower courts. Last month, the question’s challengers submitted new evidencefrom the files of a deceased Republican redistricting expert who wrote in a 2015 study that adding the citizenship question could entrench GOP power by allowing state legislators to redistrict using only citizens as the population base, rather than the total population. A case involving the question in Maryland was recently reopened to explore whether this evidence suggests that the Trump administration violated Hispanics’ civil rights by diluting their political power. A court ruling that the question was added with discriminatory intent could also keep it off the census form.
One key point from the ruling, though, is that the citizenship question isn’t inherently unconstitutional. Several lower court judges ruled that the question violated the Constitution’s enumeration clause, which mandates a count of every person, because the question seems likely to result in an undercount of certain populations. The court rejected that argument. So even though the Supreme Court’s ruling is a victory for opponents of the question this time around, it also means that a future administration isn’t constitutionally barred from adding the question. So a citizenship question could end up on a future census.
Thursday, June 27, 2019
From 538: Partisan Gerrymandering Isn’t The Supreme Court’s Problem Anymore
- Click here for the article.
The Supreme Court will not end extreme partisan gerrymandering. In a 5-4 decision along ideological lines, the court ruled Thursday that partisan gerrymandering of congressional districts cannot be limited by federal courts. Chief Justice John Roberts authored the majority opinion, writing that “what the appellees and dissent seek is an unprecedented expansion of judicial power.”
Justice Elena Kagan’s dissent was scathing. “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” she wrote in her opening sentence. She argued that imposing limits on gerrymandered districts is not beyond the scope of the court: “The partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
The ruling almost certainly would have been different if Anthony Kennedy were still on the court. Before retiring last year, Kennedy had been the swing justice on previous gerrymandering cases. He had said that partisan gerrymandering was within the purview of the court but that the justices should hold off on ruling any particular gerrymander unconstitutional until a manageable standard for measuring gerrymandering emerged. Since he took that position in 2004, reformers had been attempting to find such a standard. Legal scholars and statisticians developed various measurements to try to win over the court, but without Kennedy, those efforts turned out to be futile.
The Supreme Court will not end extreme partisan gerrymandering. In a 5-4 decision along ideological lines, the court ruled Thursday that partisan gerrymandering of congressional districts cannot be limited by federal courts. Chief Justice John Roberts authored the majority opinion, writing that “what the appellees and dissent seek is an unprecedented expansion of judicial power.”
Justice Elena Kagan’s dissent was scathing. “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” she wrote in her opening sentence. She argued that imposing limits on gerrymandered districts is not beyond the scope of the court: “The partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
The ruling almost certainly would have been different if Anthony Kennedy were still on the court. Before retiring last year, Kennedy had been the swing justice on previous gerrymandering cases. He had said that partisan gerrymandering was within the purview of the court but that the justices should hold off on ruling any particular gerrymander unconstitutional until a manageable standard for measuring gerrymandering emerged. Since he took that position in 2004, reformers had been attempting to find such a standard. Legal scholars and statisticians developed various measurements to try to win over the court, but without Kennedy, those efforts turned out to be futile.
Thursday, June 20, 2019
FromScotusBlog: Opinion analysis: Justices allow “peace cross” to stand
- Click here for the article.
For nearly a century, a 40-foot-tall cross has stood in what is now a traffic median in the suburbs outside Washington, D.C. Erected to honor 49 local soldiers killed in World War I, the cross’s presence on public land drew little attention until 2012, when a group of local residents filed a lawsuit in federal court. They argued that the cross, which is maintained by the state, violates the Constitution’s establishment clause, which prohibits the government from establishing an official religion or favoring one religion over another. Today the Supreme Court rejected that argument, with seven of the nine justices agreeing that the cross (and others like it) should be allowed to stand.
The ruling is the latest chapter in the debate over religious symbols in the public sphere. The justices confronted a similar case nearly 15 years ago, when they rejected a challenge to the display of a Ten Commandments monument on the grounds of the Texas state capitol. In that case, Justice Stephen Breyer provided the fifth vote to leave the monument in place, with his concurring opinion providing the governing rule. In 1971, the Supreme Court outlined a test – known as the “Lemon test,” after the case in which it was established, for courts to use to determine whether a law or practice violates the establishment clause: The law or practice is constitutional if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.”
But Breyer declined to use the Lemon test in the Texas case, explaining that there is “no single mechanical formula that can accurately draw the constitutional line in every case.” Breyer reasoned that although the Ten Commandments monument “undeniably has a religious message,” the state intended it to convey a secular message. Indeed, Breyer noted, no one had challenged the presence of the monument at the capitol for 40 years – which, he posited, suggested that the public regards it as part of a “broader moral and historical message reflective of a cultural heritage.”
Justice Samuel Alito wrote for the court today, in an opinion that once again eschewed the use of the Lemon test. Alito began by explaining that although the cross “came into widespread use as a symbol of Christianity” and continues to have that meaning today, it “has also taken on a secular meaning” in other contexts. In particular, Alito noted, the cross became a “central symbol” of World War I – which likely explains the choice to use a massive cross as the memorial for the Prince George’s County soldiers.
Alito then observed that, if the intent of the Lemon test had been to “bring order and predictability to Establishment Clause decisionmaking,” in practice the test had fallen short. This was particularly true, he noted, in cases – like this one – involving religious symbols or monuments. These symbols and monuments were often established long ago, making it difficult to identify their original purpose. And even when that original purpose can be identified, Alito continued, the purpose or the message conveyed by the monument may expand or change. He cited the example of the Notre Dame cathedral in Paris, describing it as both “fundamentally a place of worship” but also “inextricably linked with the very idea of Paris and France.” When this happens, Alito suggested, taking down a monument can be seen not as an act that restores neutrality, but instead as “aggressively hostile to religion.” Taken together, Alito concluded, these different considerations show that at least when the question is whether to keep religious monuments in place, rather than to put up new ones, there should be a presumption that the monuments are constitutional.
That presumption, Alito continued, applies here: Not only did the cross start off with the “added secular meaning” associated with World War I, but it took on “historical importance”: It reminds local residents of the conflict and the sacrifices that area soldiers made. On the other hand, there is no evidence that Jewish soldiers were either “deliberately left off the list on the memorial” or “included on the Cross against the wishes of their families.”
“The cross is a Christian symbol,” Alito concluded, “but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home,” while for others “it is a place for the community to gather and honor all veterans and their sacrifices for our Nation.” “For many of these people,” Alito stressed, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
Justice Stephen Breyer joined all of Alito’s opinion, but he also wrote a separate concurring opinion that was joined by Justice Elena Kagan. Breyer reiterated his belief that “there is no single formula for resolving Establishment Clause challenges.” Instead, he contended, the most important consideration in each case is “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.”
Breyer may have wanted to signal that (at least as far as he was concerned) today’s holding was a relatively narrow one. “The case would be different” for him, he indicated, “if there were evidence that the organizers had deliberately disrespected members of minority faiths or if the Cross had been erected only recently.” “Nor do I understand,” he continued, “the Court’s opinion today to adopt a history and tradition test that would permit any newly constructed religious memorial on public land.” History can provide guidance, Breyer conceded, but the Supreme Court today allowed the cross to stand only after “considering its particular historical context and its long-held place in the community. A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.”
Justice Brett Kavanaugh also joined all of Alito’s opinion but had a separate concurring opinion. He expressed even stronger opposition to the Lemon test than did Alito’s opinion for the court. Contending that “the Court’s decisions over the span of several decades demonstrate that the Lemontest is not good law and does not apply to Establishment Clause cases in any of” five categories, Kavanaugh distilled from those cases a test that focuses on whether the practice at issue is coercive, along with (as relevant here) whether it is rooted in history and tradition. Because the cross meets both of those criteria, Kavanaugh agreed that the cross does not violate the Constitution and should be allowed to stand.
Kavanaugh then pivoted to express his “deep respect for the plaintiffs’ sincere objections to seeing the cross on public land” and his “sincere respect for the Jewish war veterans who in a friend-of-the-court brief “say that the cross on public land sends a message of exclusion.” Indeed, Kavanaugh acknowledged, the cross is a “deeply religious” symbol. “A case like this is difficult,” Kavanaugh wrote, “because it represents a clash of genuine and important interests.”
At the same time, Kavanaugh continued, the fact that the Supreme Court has allowed the cross to stand doesn’t mean that the plaintiffs can’t pursue other options to have the cross taken down. For example, he wrote, the Maryland legislature could require the cross to be taken down or it could give the land to a private entity. “These alternative avenues of relief illustrate a fundamental feature of our constitutional structure: This Court is not the only guardian of individual rights in America.”
Justice Elena Kagan joined most, but not all, of Alito’s opinion. But she wrote separately to note that, although she agreed “that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.”
Justice Clarence Thomas also would have allowed the cross to stand, but for a different reason: He believes that the Constitution’s establishment clause does not apply to the states at all. Even if it did apply to the states, he added, there would still not be any constitutional violation – either because the establishment clause only applies to laws passed by a legislature or because the clause requires actual coercion by the government. And he made clear that he would take what he regarded as “the logical next step and overrule the Lemon test in all contexts.”
Justice Neil Gorsuch also agreed that the cross should be permitted to remain in place, but he argued that the case should be dismissed, because the challengers do not have a legal right, known as “standing,” to bring a lawsuit. Simply being offended by the cross’s presence is not, Gorsuch contended, enough to justify the lawsuit. The idea that an “offended observer” can bring a lawsuit was, Gorsuch suggested, “invented” by the lower courts in response to the Lemon test, which Gorsuch described as a “misadventure”: “It sought a grand unified theory of the Establishment Clause but left us only a mess.”
Gorsuch was, however, also relatively skeptical about Alito’s emphasis in this case on the cross’s age, and he would take a broader view. How old, Gorsuch queried rhetorically, is old enough to qualify for the presumption that a religious monument does not violate the establishment clause – “what about the Star of David monument erected in South Carolina in 2001 to commemorate victims of the Holocaust?” For Gorsuch, “what matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”
Justice Ruth Bader Ginsburg read her dissent, which was joined by Justice Sonia Sotomayor, from the bench – a move that justices generally reserve for opinions expressing strong disagreement with the majority’s ruling. Ginsburg rejected the idea that the cross is merely a secular symbol of World War I: “The Latin Cross,” she wrote, “is the foremost symbol of the Christian faith,” and using it as a war memorial doesn’t change that. A history of the efforts to bury American war dead in Europe after World War I shows, Ginsburg argued, that the cross “was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity.” By “maintaining the Peace Cross on a public highway,” she argued, the Maryland government “elevates Christianity over other faiths, and religion over nonreligion.”
For nearly a century, a 40-foot-tall cross has stood in what is now a traffic median in the suburbs outside Washington, D.C. Erected to honor 49 local soldiers killed in World War I, the cross’s presence on public land drew little attention until 2012, when a group of local residents filed a lawsuit in federal court. They argued that the cross, which is maintained by the state, violates the Constitution’s establishment clause, which prohibits the government from establishing an official religion or favoring one religion over another. Today the Supreme Court rejected that argument, with seven of the nine justices agreeing that the cross (and others like it) should be allowed to stand.
The ruling is the latest chapter in the debate over religious symbols in the public sphere. The justices confronted a similar case nearly 15 years ago, when they rejected a challenge to the display of a Ten Commandments monument on the grounds of the Texas state capitol. In that case, Justice Stephen Breyer provided the fifth vote to leave the monument in place, with his concurring opinion providing the governing rule. In 1971, the Supreme Court outlined a test – known as the “Lemon test,” after the case in which it was established, for courts to use to determine whether a law or practice violates the establishment clause: The law or practice is constitutional if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.”
But Breyer declined to use the Lemon test in the Texas case, explaining that there is “no single mechanical formula that can accurately draw the constitutional line in every case.” Breyer reasoned that although the Ten Commandments monument “undeniably has a religious message,” the state intended it to convey a secular message. Indeed, Breyer noted, no one had challenged the presence of the monument at the capitol for 40 years – which, he posited, suggested that the public regards it as part of a “broader moral and historical message reflective of a cultural heritage.”
Justice Samuel Alito wrote for the court today, in an opinion that once again eschewed the use of the Lemon test. Alito began by explaining that although the cross “came into widespread use as a symbol of Christianity” and continues to have that meaning today, it “has also taken on a secular meaning” in other contexts. In particular, Alito noted, the cross became a “central symbol” of World War I – which likely explains the choice to use a massive cross as the memorial for the Prince George’s County soldiers.
Alito then observed that, if the intent of the Lemon test had been to “bring order and predictability to Establishment Clause decisionmaking,” in practice the test had fallen short. This was particularly true, he noted, in cases – like this one – involving religious symbols or monuments. These symbols and monuments were often established long ago, making it difficult to identify their original purpose. And even when that original purpose can be identified, Alito continued, the purpose or the message conveyed by the monument may expand or change. He cited the example of the Notre Dame cathedral in Paris, describing it as both “fundamentally a place of worship” but also “inextricably linked with the very idea of Paris and France.” When this happens, Alito suggested, taking down a monument can be seen not as an act that restores neutrality, but instead as “aggressively hostile to religion.” Taken together, Alito concluded, these different considerations show that at least when the question is whether to keep religious monuments in place, rather than to put up new ones, there should be a presumption that the monuments are constitutional.
That presumption, Alito continued, applies here: Not only did the cross start off with the “added secular meaning” associated with World War I, but it took on “historical importance”: It reminds local residents of the conflict and the sacrifices that area soldiers made. On the other hand, there is no evidence that Jewish soldiers were either “deliberately left off the list on the memorial” or “included on the Cross against the wishes of their families.”
“The cross is a Christian symbol,” Alito concluded, “but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home,” while for others “it is a place for the community to gather and honor all veterans and their sacrifices for our Nation.” “For many of these people,” Alito stressed, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
Justice Stephen Breyer joined all of Alito’s opinion, but he also wrote a separate concurring opinion that was joined by Justice Elena Kagan. Breyer reiterated his belief that “there is no single formula for resolving Establishment Clause challenges.” Instead, he contended, the most important consideration in each case is “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.”
Breyer may have wanted to signal that (at least as far as he was concerned) today’s holding was a relatively narrow one. “The case would be different” for him, he indicated, “if there were evidence that the organizers had deliberately disrespected members of minority faiths or if the Cross had been erected only recently.” “Nor do I understand,” he continued, “the Court’s opinion today to adopt a history and tradition test that would permit any newly constructed religious memorial on public land.” History can provide guidance, Breyer conceded, but the Supreme Court today allowed the cross to stand only after “considering its particular historical context and its long-held place in the community. A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.”
Justice Brett Kavanaugh also joined all of Alito’s opinion but had a separate concurring opinion. He expressed even stronger opposition to the Lemon test than did Alito’s opinion for the court. Contending that “the Court’s decisions over the span of several decades demonstrate that the Lemontest is not good law and does not apply to Establishment Clause cases in any of” five categories, Kavanaugh distilled from those cases a test that focuses on whether the practice at issue is coercive, along with (as relevant here) whether it is rooted in history and tradition. Because the cross meets both of those criteria, Kavanaugh agreed that the cross does not violate the Constitution and should be allowed to stand.
Kavanaugh then pivoted to express his “deep respect for the plaintiffs’ sincere objections to seeing the cross on public land” and his “sincere respect for the Jewish war veterans who in a friend-of-the-court brief “say that the cross on public land sends a message of exclusion.” Indeed, Kavanaugh acknowledged, the cross is a “deeply religious” symbol. “A case like this is difficult,” Kavanaugh wrote, “because it represents a clash of genuine and important interests.”
At the same time, Kavanaugh continued, the fact that the Supreme Court has allowed the cross to stand doesn’t mean that the plaintiffs can’t pursue other options to have the cross taken down. For example, he wrote, the Maryland legislature could require the cross to be taken down or it could give the land to a private entity. “These alternative avenues of relief illustrate a fundamental feature of our constitutional structure: This Court is not the only guardian of individual rights in America.”
Justice Elena Kagan joined most, but not all, of Alito’s opinion. But she wrote separately to note that, although she agreed “that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.”
Justice Clarence Thomas also would have allowed the cross to stand, but for a different reason: He believes that the Constitution’s establishment clause does not apply to the states at all. Even if it did apply to the states, he added, there would still not be any constitutional violation – either because the establishment clause only applies to laws passed by a legislature or because the clause requires actual coercion by the government. And he made clear that he would take what he regarded as “the logical next step and overrule the Lemon test in all contexts.”
Justice Neil Gorsuch also agreed that the cross should be permitted to remain in place, but he argued that the case should be dismissed, because the challengers do not have a legal right, known as “standing,” to bring a lawsuit. Simply being offended by the cross’s presence is not, Gorsuch contended, enough to justify the lawsuit. The idea that an “offended observer” can bring a lawsuit was, Gorsuch suggested, “invented” by the lower courts in response to the Lemon test, which Gorsuch described as a “misadventure”: “It sought a grand unified theory of the Establishment Clause but left us only a mess.”
Gorsuch was, however, also relatively skeptical about Alito’s emphasis in this case on the cross’s age, and he would take a broader view. How old, Gorsuch queried rhetorically, is old enough to qualify for the presumption that a religious monument does not violate the establishment clause – “what about the Star of David monument erected in South Carolina in 2001 to commemorate victims of the Holocaust?” For Gorsuch, “what matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”
Justice Ruth Bader Ginsburg read her dissent, which was joined by Justice Sonia Sotomayor, from the bench – a move that justices generally reserve for opinions expressing strong disagreement with the majority’s ruling. Ginsburg rejected the idea that the cross is merely a secular symbol of World War I: “The Latin Cross,” she wrote, “is the foremost symbol of the Christian faith,” and using it as a war memorial doesn’t change that. A history of the efforts to bury American war dead in Europe after World War I shows, Ginsburg argued, that the cross “was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity.” By “maintaining the Peace Cross on a public highway,” she argued, the Maryland government “elevates Christianity over other faiths, and religion over nonreligion.”
Monday, June 10, 2019
From the Atlantic: What Two Crucial Words in the Constitution Actually Mean
For out look at the U.S. Constitution.
- Click here for the article.
Is the president a king? The question may sound absurd, but you’d be surprised: A great many lawyers, politicians, judges, and policy experts think the U.S. Constitution builds from exactly that starting point. Their argument relies on the first sentence of Article II, which gives the president “the executive power.” That phrase, they claim, was originally understood as a generic reference to monarchical authority. This means, they say, that the American president must have been given all the prerogatives of a British king, except where the Constitution specifies otherwise. The foreign-relations scholar Philip Trimble states their conclusion plainly: “Unless the [Article II] Vesting Clause is meaningless, it incorporates the unallocated parts of Royal Prerogative.”
The repercussions of this claim ripple across the face of constitutional law. During Senate hearings on legislating an end to the Iraq War, Brad Berenson, who had served as one of President George W. Bush’s top lawyers, told the Senate that the executive-power clause conveys “a vast reserve of implied authority to do whatever may be necessary in executing the laws and governing the nation.” When the Bush administration wanted to defy statutory restrictions on dragnet surveillance, the Justice Department relied on the clause in advising that Congress “cannot restrict the President’s ability to engage in warrantless searches that protect the national security.” And Justice Clarence Thomas put the clause front and center in concluding that “those who ratified the Constitution understood the ‘executive Power’ vested by Article II to include those foreign affairs powers not otherwise allocated in the Constitution.”
These aren’t selective examples. Pick a random recent controversy about presidential power, and you’re almost certain to find the president-as-king claim woven into the debates. During the George W. Bush administration, the argument was used to defend the torture of prisoners, the evasion of habeas corpus, and the claim of authority to invade Afghanistan and Iraq without congressional authorization. During the Obama administration, the argument surfaced in debates about the administration’s defiance of a statute recognizing Jerusalem as the capital of Israel and about the use of force against Libya. And supporters of the Trump administration have supercharged the claim, advocating a breathtaking theory of indefeasible imperial prerogative in areas ranging from the Russia investigation and workaday congressional oversight to immigration law and the bombing of Syria.
- Click here for the article.
Is the president a king? The question may sound absurd, but you’d be surprised: A great many lawyers, politicians, judges, and policy experts think the U.S. Constitution builds from exactly that starting point. Their argument relies on the first sentence of Article II, which gives the president “the executive power.” That phrase, they claim, was originally understood as a generic reference to monarchical authority. This means, they say, that the American president must have been given all the prerogatives of a British king, except where the Constitution specifies otherwise. The foreign-relations scholar Philip Trimble states their conclusion plainly: “Unless the [Article II] Vesting Clause is meaningless, it incorporates the unallocated parts of Royal Prerogative.”
The repercussions of this claim ripple across the face of constitutional law. During Senate hearings on legislating an end to the Iraq War, Brad Berenson, who had served as one of President George W. Bush’s top lawyers, told the Senate that the executive-power clause conveys “a vast reserve of implied authority to do whatever may be necessary in executing the laws and governing the nation.” When the Bush administration wanted to defy statutory restrictions on dragnet surveillance, the Justice Department relied on the clause in advising that Congress “cannot restrict the President’s ability to engage in warrantless searches that protect the national security.” And Justice Clarence Thomas put the clause front and center in concluding that “those who ratified the Constitution understood the ‘executive Power’ vested by Article II to include those foreign affairs powers not otherwise allocated in the Constitution.”
These aren’t selective examples. Pick a random recent controversy about presidential power, and you’re almost certain to find the president-as-king claim woven into the debates. During the George W. Bush administration, the argument was used to defend the torture of prisoners, the evasion of habeas corpus, and the claim of authority to invade Afghanistan and Iraq without congressional authorization. During the Obama administration, the argument surfaced in debates about the administration’s defiance of a statute recognizing Jerusalem as the capital of Israel and about the use of force against Libya. And supporters of the Trump administration have supercharged the claim, advocating a breathtaking theory of indefeasible imperial prerogative in areas ranging from the Russia investigation and workaday congressional oversight to immigration law and the bombing of Syria.
Thursday, June 6, 2019
From the Texas Tribune: Are the billions Texas lawmakers committed for schools and lower property taxes sustainable?
For 2306, and our look at the recently completed legislative session.
- Click here for the article.
2019 may have been the perfect year for lawmakers to pass an ambitious and expensive school finance reform and property tax reduction plan. Now Texas politicians face questions about whether doing so — without raising taxes elsewhere — will be sustainable in less auspicious times.
A confluence of fiscal coincidences made 2019 a cheerful year for budget writers:
- A mostly sunny economic forecast led lawmakers to believe they’d have $10 billion or so more in state funds to spend in this two-year budget compared with the one they passed in 2017.
- A one-year bump in federal reimbursements for the state’s health care costs allowed lawmakers to free up billions of dollars for other programs.
- A U.S. Supreme Court ruling poured another $550 million or so into state coffers by allowing the state to collect additional sales tax revenue from online sales.
- And a historically full state savings account helped pay off pressing infrastructure needs, alleviating pressure on other programs competing for funding in the two-year spending plan.
Lawmakers decided to pump almost all of the new revenue at their disposal into the education portion of the state budget.
The result was a new school finance bill — still awaiting Gov. Greg Abbott’s signature — that will cost more than $11.5 billion in 2020 and 2021. Of those funds, about $5 billion go toward cutting property taxes on homes and businesses and $6.5 billion pay for educational reforms, including a 20% hike in schools’ baseline per-student funding.
- Click here for the article.
2019 may have been the perfect year for lawmakers to pass an ambitious and expensive school finance reform and property tax reduction plan. Now Texas politicians face questions about whether doing so — without raising taxes elsewhere — will be sustainable in less auspicious times.
A confluence of fiscal coincidences made 2019 a cheerful year for budget writers:
- A mostly sunny economic forecast led lawmakers to believe they’d have $10 billion or so more in state funds to spend in this two-year budget compared with the one they passed in 2017.
- A one-year bump in federal reimbursements for the state’s health care costs allowed lawmakers to free up billions of dollars for other programs.
- A U.S. Supreme Court ruling poured another $550 million or so into state coffers by allowing the state to collect additional sales tax revenue from online sales.
- And a historically full state savings account helped pay off pressing infrastructure needs, alleviating pressure on other programs competing for funding in the two-year spending plan.
Lawmakers decided to pump almost all of the new revenue at their disposal into the education portion of the state budget.
The result was a new school finance bill — still awaiting Gov. Greg Abbott’s signature — that will cost more than $11.5 billion in 2020 and 2021. Of those funds, about $5 billion go toward cutting property taxes on homes and businesses and $6.5 billion pay for educational reforms, including a 20% hike in schools’ baseline per-student funding.
From Governing: How Governments Are Transitioning Their Gender Policies to Nonbinary
An example of policy diffusion, and political culture.
- Click here for the article.
The growing national conversation on gender identity is a divisive and controversial policy issue. Much of the debate up to this point, including over proposed “bathroom bills” in North Carolina, Tennessee, Texas and elsewhere, has centered on individuals who fall within society’s existing gender structure -- transgender men and transgender women. Redefining that structure altogether to include nonbinary identities may be a more ambitious battle.
When it comes to issuing IDs, states should prioritize biological accuracy over personal gender preference, say opponents of the efforts to expand gender definition. “Eye color, hair color, height, weight and sex: These are all listed on a driver’s license because these physical characteristics can be independently verified by physical evidence, even if a person is unconscious,” Greg Burt testified to the California Senate in 2017. Burt, who works for the California Family Council, was arguing against a proposed bill to allow for nonbinary government identification. The bill, he said, “advances a falsehood; that being male or female, or no gender at all, is a choice each person must make, not a fact to celebrate and accept.” That bill went on to become the Gender Recognition Act, which was passed and signed into law later that year, making California one of the easiest states in which to change gender on a birth certificate or a driver’s license.
For California and the other states and cities that have opted to allow nonbinary designations, adding an “X” to these documents is only the beginning. Legally recognizing gender as a spectrum sets up a cascade of tough policy questions. Schools, sports, prisons, courts, health care and human services benefits are all gendered systems. Some states, including California and Oregon, are beginning to address those needs; however, they still face challenges.
“Folks are going to start to see people with these IDs, whether it’s someone traveling through [a jurisdiction] or someone who has moved there from another state,” says Shawn Meerkamper, staff attorney with the Transgender Law Center. “There are just so many systems that are currently designed to only have two options for gender markers. More data systems need to catch up.”
- Click here for the article.
The growing national conversation on gender identity is a divisive and controversial policy issue. Much of the debate up to this point, including over proposed “bathroom bills” in North Carolina, Tennessee, Texas and elsewhere, has centered on individuals who fall within society’s existing gender structure -- transgender men and transgender women. Redefining that structure altogether to include nonbinary identities may be a more ambitious battle.
When it comes to issuing IDs, states should prioritize biological accuracy over personal gender preference, say opponents of the efforts to expand gender definition. “Eye color, hair color, height, weight and sex: These are all listed on a driver’s license because these physical characteristics can be independently verified by physical evidence, even if a person is unconscious,” Greg Burt testified to the California Senate in 2017. Burt, who works for the California Family Council, was arguing against a proposed bill to allow for nonbinary government identification. The bill, he said, “advances a falsehood; that being male or female, or no gender at all, is a choice each person must make, not a fact to celebrate and accept.” That bill went on to become the Gender Recognition Act, which was passed and signed into law later that year, making California one of the easiest states in which to change gender on a birth certificate or a driver’s license.
For California and the other states and cities that have opted to allow nonbinary designations, adding an “X” to these documents is only the beginning. Legally recognizing gender as a spectrum sets up a cascade of tough policy questions. Schools, sports, prisons, courts, health care and human services benefits are all gendered systems. Some states, including California and Oregon, are beginning to address those needs; however, they still face challenges.
“Folks are going to start to see people with these IDs, whether it’s someone traveling through [a jurisdiction] or someone who has moved there from another state,” says Shawn Meerkamper, staff attorney with the Transgender Law Center. “There are just so many systems that are currently designed to only have two options for gender markers. More data systems need to catch up.”
Tuesday, June 4, 2019
The Texas Tribune: Is Texas really going purple? Our Heat Index shows how competitive your district was — and is.
A significant article.
- Click here for the article.
The 2020 elections will be an acid test for Texas politics. Did the results in 2018 mark a new trend toward more competitive general elections or a one-time swerve away from the steady quarter-century pattern of Republican dominance?
To answer that question, we looked beyond who currently represents each congressional or legislative district and created our own Heat Index — a measure of whether each district generally favors Democrats or Republicans in statewide elections. Statewide elections are those from president down to the top courts in Texas — races decided by all Texas voters, and not just some of them.
- Click here for the article.
The 2020 elections will be an acid test for Texas politics. Did the results in 2018 mark a new trend toward more competitive general elections or a one-time swerve away from the steady quarter-century pattern of Republican dominance?
To answer that question, we looked beyond who currently represents each congressional or legislative district and created our own Heat Index — a measure of whether each district generally favors Democrats or Republicans in statewide elections. Statewide elections are those from president down to the top courts in Texas — races decided by all Texas voters, and not just some of them.
Monday, June 3, 2019
From 538: The Movement To Skip The Electoral College Is Picking Up Steam
For 2305:
- Click here for the article.
The effort to bypass the Electoral College and choose the president via the national popular vote has historically seemed like a long shot. But after an impressive string of legislative victories this year, maybe it should be taken more seriously.
The National Popular Vote initiative aims to create an interstate compact to effectively “abolish” the Electoral College without amending the Constitution. States that join the compact agree to award their electoral votes not to the candidate who wins that state, but to the candidate who wins the national popular vote. (States can do this because there is no national law dictating how they should award their electoral votes; indeed, the Constitution explicitly leaves it to state legislatures to decide.) However, the compact will go into effect only when the states that have signed on are worth 270 electoral votes — enough to ensure that the popular vote winner wins the election.
In the 13 years since the initiative started, support for joining the compact has largely been limited to Democratic-leaning states, probably because the two times in recent history when the Electoral College winner lost the popular vote, the split benefited the Republican candidate. By the end of 2018, the compact had been joined by 12 jurisdictions (11 states and the District of Columbia) that were worth a combined 172 electoral votes. But all of them were safe Democratic jurisdictions, and supporters of the initiative had almost run out of blue states to sign up. There was little indication that they could conscript the purple or red states that the compact needs to take effect.
But then 2019 happened. The compact found three additional states willing to sign on, with three more seemingly on the cusp of doing so. And unlike previous years, the new and pending members include some hard-fought presidential swing states.
- Click here for the article.
The effort to bypass the Electoral College and choose the president via the national popular vote has historically seemed like a long shot. But after an impressive string of legislative victories this year, maybe it should be taken more seriously.
The National Popular Vote initiative aims to create an interstate compact to effectively “abolish” the Electoral College without amending the Constitution. States that join the compact agree to award their electoral votes not to the candidate who wins that state, but to the candidate who wins the national popular vote. (States can do this because there is no national law dictating how they should award their electoral votes; indeed, the Constitution explicitly leaves it to state legislatures to decide.) However, the compact will go into effect only when the states that have signed on are worth 270 electoral votes — enough to ensure that the popular vote winner wins the election.
In the 13 years since the initiative started, support for joining the compact has largely been limited to Democratic-leaning states, probably because the two times in recent history when the Electoral College winner lost the popular vote, the split benefited the Republican candidate. By the end of 2018, the compact had been joined by 12 jurisdictions (11 states and the District of Columbia) that were worth a combined 172 electoral votes. But all of them were safe Democratic jurisdictions, and supporters of the initiative had almost run out of blue states to sign up. There was little indication that they could conscript the purple or red states that the compact needs to take effect.
But then 2019 happened. The compact found three additional states willing to sign on, with three more seemingly on the cusp of doing so. And unlike previous years, the new and pending members include some hard-fought presidential swing states.
From the Texas Tribune: The latest Texas legislative session proves elections have consequences
Might be helpful for 2306 students thinking about their paper.
- Click here for the article.
The biggest change in the Legislature this session was the shift in who the lawmakers fear most.
Just a few years ago, the Tea Party wave put the most conservative factions of the Republican Party in the pilot’s seat. For several legislative sessions, word that those restive activists were watching a vote could — and sometimes did — influence what the Legislature was doing and how it was talking about issues.
But another faction, focused on public schools, has come into power, turning the heads of Republican leaders. A 2018 election put more Democrats in office, changing the temperature in the Capitol. And a fat state bank account made it possible to do the kinds of expensive things that lawmakers rarely get to do.
Many issues dear to the far right got only fleeting attention from the 86th Legislature. Lawmakers passed a bill protecting babies born alive after abortion attempts — a rare circumstance — that was a political goal of anti-abortion groups. But the state didn’t join in efforts — like those in Missouri, Alabama and Georgia — to pass “heartbeat” abortion laws limiting legal abortions to the first few weeks of a woman’s pregnancy. They did succeed with legislation barring cities from doing business with groups that provide abortions, such as Planned Parenthood.
Another skirmish in the culture war was waged via the so-called Chick-fil-A bill, with lawmakers ultimately passing a watered-down measure preventing public entities from acting against businesses and people on the basis of sincerely held religious beliefs. And an effort to throw out municipal non-discrimination ordinances undermined an otherwise surefire bid to ban sick-leave laws passed by local governments.
Proposals to allow gun owners to carry guns without permits — an idea popularly known as constitutional carry — fell apart after an enthusiastic advocate decided to help the cause by visiting the private homes of legislators while those legislators were in Austin. The lawmakers saw that as threatening behavior and shut down both the visits and the legislation those visits were intended to promote.
- Click here for the article.
The biggest change in the Legislature this session was the shift in who the lawmakers fear most.
Just a few years ago, the Tea Party wave put the most conservative factions of the Republican Party in the pilot’s seat. For several legislative sessions, word that those restive activists were watching a vote could — and sometimes did — influence what the Legislature was doing and how it was talking about issues.
But another faction, focused on public schools, has come into power, turning the heads of Republican leaders. A 2018 election put more Democrats in office, changing the temperature in the Capitol. And a fat state bank account made it possible to do the kinds of expensive things that lawmakers rarely get to do.
Many issues dear to the far right got only fleeting attention from the 86th Legislature. Lawmakers passed a bill protecting babies born alive after abortion attempts — a rare circumstance — that was a political goal of anti-abortion groups. But the state didn’t join in efforts — like those in Missouri, Alabama and Georgia — to pass “heartbeat” abortion laws limiting legal abortions to the first few weeks of a woman’s pregnancy. They did succeed with legislation barring cities from doing business with groups that provide abortions, such as Planned Parenthood.
Another skirmish in the culture war was waged via the so-called Chick-fil-A bill, with lawmakers ultimately passing a watered-down measure preventing public entities from acting against businesses and people on the basis of sincerely held religious beliefs. And an effort to throw out municipal non-discrimination ordinances undermined an otherwise surefire bid to ban sick-leave laws passed by local governments.
Proposals to allow gun owners to carry guns without permits — an idea popularly known as constitutional carry — fell apart after an enthusiastic advocate decided to help the cause by visiting the private homes of legislators while those legislators were in Austin. The lawmakers saw that as threatening behavior and shut down both the visits and the legislation those visits were intended to promote.
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