Newsworthy - also applicable to your chapters on federalism, elections, and the presidency.
- Click here for the article.
Who gets to decide when an election is held?
There are different sets of rules for congressional elections and presidential elections.
For congressional elections, the Constitution provides that “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 choosing Senators.” This means that both Congress and state lawmakers have control over when a congressional election is held, but Congress has the final word if there’s a disagreement.
Congress has set the date of House and Senate elections for “the Tuesday next after the 1st Monday in November.” Neither Trump nor any state official has the power to alter this date. Only a subsequent act of Congress could do so.
The picture for presidential elections is slightly more complicated. A federal statute does provide that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November,” so states must choose members of the Electoral College on the same day as a congressional election takes place.
That said, there is technically no constitutional requirement that a state must hold an election to choose members of the Electoral College. The Constitution provides that “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” So a state legislature could theoretically decide to select presidential electors out of a hat. More worrisome, a legislature controlled by one party could potentially appoint loyal members of that party directly to the Electoral College.
Yet while state lawmakers theoretically have this power, the idea that presidents are chosen by popular election is now so ingrained into our culture that it is highly unlikely any state legislature would try to appoint electors directly. By 1832, every US state except South Carolina used a popular election to choose members of the Electoral College. South Carolina came around in the 1860s.
Moreover, once a state decides to hold an election to choose members of the Electoral College, all voters must be afforded equal status. As the Supreme Court explained in Harper v. Virginia Board of Elections (1966), “once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”
Additionally, even if a state did decide to appoint electors directly, that would require the state to enact a law changing its method of selecting members of the Electoral College. Several crucial swing states, including Wisconsin, Michigan, Pennsylvania, and North Carolina, have Democratic governors who could veto such legislation.
All of which is a long way of saying that the risk that an election will be outright canceled — or that a state may try to take the power to remove President Trump away from its people — is exceedingly low.
Thursday, July 30, 2020
Wednesday, July 29, 2020
From Wikipedia: Federal law enforcement in the United States
For a good look at the range of agencies that have some type of law enforcement entity:
- Click here for the entry.
- Click here for the entry.
From the House Judiciary Committee: Oversight of the Department of Justice
An example of checks and balances.
- Click here for the page.
For more on the Department of Justice, click on the Wikipedia page.
For more on the Attorney General, click here.
Here is its organizational chart.
- Click here for the page.
For more on the Department of Justice, click on the Wikipedia page.
For more on the Attorney General, click here.
Here is its organizational chart.
From the Cato Institute: The Expanding Federal Police Power
In light of recent events involving federal law enforcement, I thought this would be appropriate for this week's written assignment.
It's important to note that law enforcement is not an enumerated power granted to the national government in the Constitution. It is a power reserved to the states. So the constitutional basis of that power, and the relationship it has with state and local law enforcement is largely undefined.
The article focuses more on the militarization of the police, and the issues related to it. This includes a look at the difference between police forces and the military.
Tell what's going on here.
- Click here for it.
It's important to note that law enforcement is not an enumerated power granted to the national government in the Constitution. It is a power reserved to the states. So the constitutional basis of that power, and the relationship it has with state and local law enforcement is largely undefined.
The article focuses more on the militarization of the police, and the issues related to it. This includes a look at the difference between police forces and the military.
Tell what's going on here.
- Click here for it.
Wednesday, July 22, 2020
From Roll Call: Cheney and Gaetz and Massie and Trump: House GOP tangled up over loyalty
For your next written assignment - tell me what's happening here. How does it illustrate concepts in your textbook - notably the chapters on elections, political parties, and Congress.
What is the House Republican Conference anyway?
- Click here for the article.
Hours after the first in-person House Republican Conference meeting in months erupted in tensions between Chairwoman Liz Cheney and several rank-and-file members, Cheney and other GOP leaders sought to present a united front, even as she stood by the positions that got her crossways with colleagues.
At the Tuesday morning meeting, Cheney was sharply criticized by Florida’s Matt Gaetz and others for not supporting Kentucky’s Thomas Massie in his primary, for not backing President Donald Trump strongly enough, and for showing support for Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, during the coronavirus pandemic that has killed more than 140,000 Americans and counting.
Cheney said she respects Massie and looks forward to working with him and winning the majority come November.
According to a person in the room, the conference meeting started to get messy during its open-mic session. That’s when Massie and Gaetz lined up, with two mics set up in different parts of the room. Cheney called on Gaetz, who said he wanted to let Massie speak first. Cheney said, “That’s not how it works,” which set the stage for more tension.
Massie and Gaetz then called out Cheney for claiming their conference was united when she donated the maximum amount to Massie’s primary opponent, Todd McMurtry. Massie coasted to a win over McMurtry in last month’s primary. Cheney called Massie a “special case,” according to the source in the room.
What is the House Republican Conference anyway?
- Click here for the article.
Hours after the first in-person House Republican Conference meeting in months erupted in tensions between Chairwoman Liz Cheney and several rank-and-file members, Cheney and other GOP leaders sought to present a united front, even as she stood by the positions that got her crossways with colleagues.
At the Tuesday morning meeting, Cheney was sharply criticized by Florida’s Matt Gaetz and others for not supporting Kentucky’s Thomas Massie in his primary, for not backing President Donald Trump strongly enough, and for showing support for Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, during the coronavirus pandemic that has killed more than 140,000 Americans and counting.
Cheney said she respects Massie and looks forward to working with him and winning the majority come November.
According to a person in the room, the conference meeting started to get messy during its open-mic session. That’s when Massie and Gaetz lined up, with two mics set up in different parts of the room. Cheney called on Gaetz, who said he wanted to let Massie speak first. Cheney said, “That’s not how it works,” which set the stage for more tension.
Massie and Gaetz then called out Cheney for claiming their conference was united when she donated the maximum amount to Massie’s primary opponent, Todd McMurtry. Massie coasted to a win over McMurtry in last month’s primary. Cheney called Massie a “special case,” according to the source in the room.
Tuesday, July 21, 2020
From Wikipedia: Federal Election Commission
For background on the agency:
- Click here for the link.
FYI: In my opinion, this agency is misnamed. It does not oversee elections, only the financing related to campaigning. Now you know. ;)
Official Duties
The commission's role is limited to the administration of federal campaign finance laws. It enforces limitations and prohibitions on contributions and expenditures, administers the reporting system for campaign finance disclosure, investigates and prosecutes violations (investigations are typically initiated by complaints from other candidates, parties, watchdog groups, and the public), audits a limited number of campaigns and organizations for compliance, and administers the presidential public funding programs for presidential candidates. Until 2014, the committee was also responsible for regulating the nomination of conventions, and defends the statute in challenges to federal election laws and regulations.
The FEC also publishes reports filed by Senate, House of Representatives and presidential campaigns that list how much each campaign has raised and spent, and a list of all donors over $200, along with each donor's home address, employer and job title. This database also goes back to 1980. Private organizations are legally prohibited from using these data to solicit new individual donors (and the FEC authorizes campaigns to include a limited number of "dummy" names as a measure to prevent this), but may use this information to solicit political action committees. The FEC also maintains an active program of public education, directed primarily to explaining the law to the candidates, their campaigns, political parties and other political committees that it regulates.
- Click here for the link.
FYI: In my opinion, this agency is misnamed. It does not oversee elections, only the financing related to campaigning. Now you know. ;)
Official Duties
The commission's role is limited to the administration of federal campaign finance laws. It enforces limitations and prohibitions on contributions and expenditures, administers the reporting system for campaign finance disclosure, investigates and prosecutes violations (investigations are typically initiated by complaints from other candidates, parties, watchdog groups, and the public), audits a limited number of campaigns and organizations for compliance, and administers the presidential public funding programs for presidential candidates. Until 2014, the committee was also responsible for regulating the nomination of conventions, and defends the statute in challenges to federal election laws and regulations.
The FEC also publishes reports filed by Senate, House of Representatives and presidential campaigns that list how much each campaign has raised and spent, and a list of all donors over $200, along with each donor's home address, employer and job title. This database also goes back to 1980. Private organizations are legally prohibited from using these data to solicit new individual donors (and the FEC authorizes campaigns to include a limited number of "dummy" names as a measure to prevent this), but may use this information to solicit political action committees. The FEC also maintains an active program of public education, directed primarily to explaining the law to the candidates, their campaigns, political parties and other political committees that it regulates.
From Roll Call: FEC set to lose its quorum again
This article combines the executive and legislative branched and campaign spending.
- Click here for the article.
The Federal Election Commission, which just recently regained enough members to conduct such routine official business as meetings, is losing yet another commissioner, sidelining the agency tasked with enforcing election laws in a pivotal presidential election year.
GOP commissioner Caroline Hunter is departing on July 3, according to a resignation letter first reported by Politico. That will leave the agency with three members; a quorum requires four commissioners.
Illinois Rep. Rodney Davis, the top Republican on the House Administration panel, which has jurisdiction over federal election matters, said he was concerned the agency would not have a quorum again before the November elections.
“It just goes to the point we’ve been making for a while that we certainly hope that the administration could get some nominations to get a quorum,” Davis said. “I want to thank Commissioner Hunter for her service. She did a great job; sad to see her go. But at the same time, I’d like to press for more urgency in getting a full commission so that they can operate.”
Relevant terms:
- FEC
- GOP
- House Administration
- quorum
- administration
- outside groups
- voters
- enforcement
- campaign finance laws
- oversight
- Campaign Legal Center
- democracy
- accountability
- appointees
- gridlock
- party lines
- Issue One
- nominate
- confirm
- constitutional responsibilities
- Senate Majority Leader
- Institute for Free Speech
- Click here for the article.
The Federal Election Commission, which just recently regained enough members to conduct such routine official business as meetings, is losing yet another commissioner, sidelining the agency tasked with enforcing election laws in a pivotal presidential election year.
GOP commissioner Caroline Hunter is departing on July 3, according to a resignation letter first reported by Politico. That will leave the agency with three members; a quorum requires four commissioners.
Illinois Rep. Rodney Davis, the top Republican on the House Administration panel, which has jurisdiction over federal election matters, said he was concerned the agency would not have a quorum again before the November elections.
“It just goes to the point we’ve been making for a while that we certainly hope that the administration could get some nominations to get a quorum,” Davis said. “I want to thank Commissioner Hunter for her service. She did a great job; sad to see her go. But at the same time, I’d like to press for more urgency in getting a full commission so that they can operate.”
Relevant terms:
- FEC
- GOP
- House Administration
- quorum
- administration
- outside groups
- voters
- enforcement
- campaign finance laws
- oversight
- Campaign Legal Center
- democracy
- accountability
- appointees
- gridlock
- party lines
- Issue One
- nominate
- confirm
- constitutional responsibilities
- Senate Majority Leader
- Institute for Free Speech
Friday, July 17, 2020
The rules for voting eligibility in Texas are different than those for running for office and serving on a jury
This is the last section of the memo below:
OTHER ISSUES
The requirements for voting and candidacy are often confused. Under Texas law, the rules are different for voting and candidacy. Section 141.001 of the Texas Election Code generally provides that to be eligible to be a candidate for, or elected or appointed to, a public elective office, a person must have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities. This means there is no automatic restoration of the right to be a candidate, as there is for voting purposes, after a full discharge. Absent a pardon, the candidate must have obtained a judicial release from his or her disabilities in order to run for any office to which this section applies.
Similarly, the requirements for voting and for serving on a jury are different. Section 62.102 of the Government Code provides that a person who has been finally convicted of a felony is not eligible to serve on a jury, and that right may not be automatically restored as it is for voters.
Candidacy:
Sec. 141.001. ELIGIBILITY REQUIREMENTS FOR PUBLIC OFFICE. (a) To be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must:
(1) be a United States citizen;
(2) be 18 years of age or older on the first day of the term to be filled at the election or on the date of appointment, as applicable;
(3) have not been determined by a final judgment of a court exercising probate jurisdiction to be:
(A) totally mentally incapacitated; or
(B) partially mentally incapacitated without the right to vote;
(4) have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities;
Jury Service
Sec. 62.102. GENERAL QUALIFICATIONS FOR JURY SERVICE. A person is disqualified to serve as a petit juror unless the person:
(1) is at least 18 years of age;
(2) is a citizen of the United States;
(3) is a resident of this state and of the county in which the person is to serve as a juror;
(4) is qualified under the constitution and laws to vote in the county in which the person is to serve as a juror;
(5) is of sound mind and good moral character;
(6) is able to read and write;
(7) has not served as a petit juror for six days during the preceding three months in the county court or during the preceding six months in the district court;
(8) has not been convicted of misdemeanor theft or a felony; and
(9) is not under indictment or other legal accusation for misdemeanor theft or a felony.
OTHER ISSUES
The requirements for voting and candidacy are often confused. Under Texas law, the rules are different for voting and candidacy. Section 141.001 of the Texas Election Code generally provides that to be eligible to be a candidate for, or elected or appointed to, a public elective office, a person must have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities. This means there is no automatic restoration of the right to be a candidate, as there is for voting purposes, after a full discharge. Absent a pardon, the candidate must have obtained a judicial release from his or her disabilities in order to run for any office to which this section applies.
Similarly, the requirements for voting and for serving on a jury are different. Section 62.102 of the Government Code provides that a person who has been finally convicted of a felony is not eligible to serve on a jury, and that right may not be automatically restored as it is for voters.
Candidacy:
Sec. 141.001. ELIGIBILITY REQUIREMENTS FOR PUBLIC OFFICE. (a) To be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must:
(1) be a United States citizen;
(2) be 18 years of age or older on the first day of the term to be filled at the election or on the date of appointment, as applicable;
(3) have not been determined by a final judgment of a court exercising probate jurisdiction to be:
(A) totally mentally incapacitated; or
(B) partially mentally incapacitated without the right to vote;
(4) have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities;
Jury Service
Sec. 62.102. GENERAL QUALIFICATIONS FOR JURY SERVICE. A person is disqualified to serve as a petit juror unless the person:
(1) is at least 18 years of age;
(2) is a citizen of the United States;
(3) is a resident of this state and of the county in which the person is to serve as a juror;
(4) is qualified under the constitution and laws to vote in the county in which the person is to serve as a juror;
(5) is of sound mind and good moral character;
(6) is able to read and write;
(7) has not served as a petit juror for six days during the preceding three months in the county court or during the preceding six months in the district court;
(8) has not been convicted of misdemeanor theft or a felony; and
(9) is not under indictment or other legal accusation for misdemeanor theft or a felony.
From the Texas Secretary of States' Office: Effect of Felony Conviction on Voter Registration
An example of communication between the Texas Secretary of State - who oversees election laws in the state - and voter registrars, who are appointed at the county level. This concerns potential challenges to voter registration based on felony convictions.
TO: Voter Registrars
FROM: Ann McGeehan, Director of Elections
DATE: August 3, 2004
RE: Effect of Felony Conviction on Voter Registration
Due to recent questions posed to this office concerning the effect of a felony conviction on voter registration, we are issuing this memorandum to set out basic rules and guidelines governing this issue.
GENERAL ELIGIBILITY RULES
As you are well aware, a person who is finally convicted of a felony is not eligible to register to vote (what is legally considered a final felony conviction is set forth in more detail under "Final Felony Convictions" below). Pursuant to Section 11.002 of the Texas Election Code (the "Code"), once a felon has successfully completed his or her punishment, including any term of incarceration, parole, supervision, period of probation, or has been pardoned, then that person is immediately eligible to register to vote.
PROCESS FOR CHALLENGING REGISTRATION AND SUGGESTIONS
On a weekly basis, this office receives information from the Department of Public Safety ("DPS") regarding all persons in the state who have been finally convicted of a felony. We match the DPS data against our statewide file of registered voters, and when we find a possible match, we forward that information to the appropriate county for action. This information is forwarded to the counties on a weekly basis via the WEB browser, or for TVRS counties, it is posted in the pending action window. It is our official advice not to immediately cancel a voter whom we have identified as a possible convicted felon. DPS has cautioned us that felons are frequently convicted under false names. When you receive information from this office regarding a possible convicted felon on your voter registration roll, you should investigate the voter registration of that individual pursuant to Section 16.033 of the Code. To investigate a registration, you must send the voter written notice of the investigation and warn the voter that his or her registration may be cancelled if he or she does not respond within 30 days.
NEW APPLICATIONS
We have recently learned that some counties may be retaining the weekly data from the state regarding possible felon information and later challenging voter registration applications of new applicants based on this information. We advise against this. First, this type of challenge is not expressly authorized by the Code. Second, due to the many variables involved in sentencing, it is possible that a finally convicted felon may complete his punishment and be released from all disabilities in a very short amount of time (in some cases, days or months from date of conviction). Accordingly, we advise that you NOT challenge a new application based solely on information from dated weekly reports that you have retained.
FINAL FELONY CONVICTIONS
Please also consider the following information before you challenge an application on the grounds of felony conviction:
- A conviction on appeal is not considered a final felony conviction.
- "Deferred adjudication" is not considered a final felony conviction. Article 42.12, Section 5, Texas Code of Criminal Procedure.
- Mere prosecution, indictment or other criminal procedures leading up to, but not yet resulting in the final conviction, are not final felony convictions.
TO: Voter Registrars
FROM: Ann McGeehan, Director of Elections
DATE: August 3, 2004
RE: Effect of Felony Conviction on Voter Registration
Due to recent questions posed to this office concerning the effect of a felony conviction on voter registration, we are issuing this memorandum to set out basic rules and guidelines governing this issue.
GENERAL ELIGIBILITY RULES
As you are well aware, a person who is finally convicted of a felony is not eligible to register to vote (what is legally considered a final felony conviction is set forth in more detail under "Final Felony Convictions" below). Pursuant to Section 11.002 of the Texas Election Code (the "Code"), once a felon has successfully completed his or her punishment, including any term of incarceration, parole, supervision, period of probation, or has been pardoned, then that person is immediately eligible to register to vote.
PROCESS FOR CHALLENGING REGISTRATION AND SUGGESTIONS
On a weekly basis, this office receives information from the Department of Public Safety ("DPS") regarding all persons in the state who have been finally convicted of a felony. We match the DPS data against our statewide file of registered voters, and when we find a possible match, we forward that information to the appropriate county for action. This information is forwarded to the counties on a weekly basis via the WEB browser, or for TVRS counties, it is posted in the pending action window. It is our official advice not to immediately cancel a voter whom we have identified as a possible convicted felon. DPS has cautioned us that felons are frequently convicted under false names. When you receive information from this office regarding a possible convicted felon on your voter registration roll, you should investigate the voter registration of that individual pursuant to Section 16.033 of the Code. To investigate a registration, you must send the voter written notice of the investigation and warn the voter that his or her registration may be cancelled if he or she does not respond within 30 days.
NEW APPLICATIONS
We have recently learned that some counties may be retaining the weekly data from the state regarding possible felon information and later challenging voter registration applications of new applicants based on this information. We advise against this. First, this type of challenge is not expressly authorized by the Code. Second, due to the many variables involved in sentencing, it is possible that a finally convicted felon may complete his punishment and be released from all disabilities in a very short amount of time (in some cases, days or months from date of conviction). Accordingly, we advise that you NOT challenge a new application based solely on information from dated weekly reports that you have retained.
FINAL FELONY CONVICTIONS
Please also consider the following information before you challenge an application on the grounds of felony conviction:
- A conviction on appeal is not considered a final felony conviction.
- "Deferred adjudication" is not considered a final felony conviction. Article 42.12, Section 5, Texas Code of Criminal Procedure.
- Mere prosecution, indictment or other criminal procedures leading up to, but not yet resulting in the final conviction, are not final felony convictions.
From the Texas State Law Library: Reentry Resources for Ex-Offenders
All you need to know about regaining the right to vote in Texas if you have been convicted of a felony and have served all your time.
- Click here for it.
- Click here for it.
Felon Voting Rights in Texas
The specifics are covered in Article Six of the Texas Constitution.
Remember that the states are in charge of elections.
Here is the text:
Sec. 1. CLASSES OF PERSONS NOT ALLOWED TO VOTE. (a) The following classes of persons shall not be allowed to vote in this State:
(1) persons under 18 years of age;
(2) persons who have been determined mentally incompetent by a court, subject to such exceptions as the Legislature may make; and
(3) persons convicted of any felony, subject to such exceptions as the Legislature may make.
(b) The legislature shall enact laws to exclude from the right of suffrage persons who have been convicted of bribery, perjury, forgery, or other high crimes.
Here are the exceptions the Legislature has made.
From Texas' Elections Code:
Sec. 11.002. QUALIFIED VOTER. (a) In this code, "qualified voter" means a person who:
(1) is 18 years of age or older;
(2) is a United States citizen;
(3) has not been determined by a final judgment of a court exercising probate jurisdiction to be:
(A) totally mentally incapacitated; or
(B) partially mentally incapacitated without the right to vote;
(4) has not been finally convicted of a felony or, if so convicted, has:
(A) fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court; or
(B) been pardoned or otherwise released from the resulting disability to vote;
(5) is a resident of this state; and
(6) is a registered voter.
(b) For purposes of Subsection (a)(4), a person is not considered to have been finally convicted of an offense for which the criminal proceedings are deferred without an adjudication of guilt.
And wait, there's more:
Sec. 13.001. ELIGIBILITY FOR REGISTRATION. (a) To be eligible for registration as a voter in this state, a person must:
(1) be 18 years of age or older;
(2) be a United States citizen;
(3) not have been determined by a final judgment of a court exercising probate jurisdiction to be:
(A) totally mentally incapacitated; or
(B) partially mentally incapacitated without the right to vote;
(4) not have been finally convicted of a felony or, if so convicted, must have:
(A) fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court; or
(B) been pardoned or otherwise released from the resulting disability to vote; and
(5) be a resident of the county in which application for registration is made.
(b) To be eligible to apply for registration, a person must, on the date the registration application is submitted to the registrar, be at least 17 years and 10 months of age and satisfy the requirements of Subsection (a) except for age.
(c) For purposes of Subsection (a)(4), a person is not considered to have been finally convicted of an offense for which the criminal proceedings are deferred without an adjudication of guilt.
Remember that the states are in charge of elections.
Here is the text:
Sec. 1. CLASSES OF PERSONS NOT ALLOWED TO VOTE. (a) The following classes of persons shall not be allowed to vote in this State:
(1) persons under 18 years of age;
(2) persons who have been determined mentally incompetent by a court, subject to such exceptions as the Legislature may make; and
(3) persons convicted of any felony, subject to such exceptions as the Legislature may make.
(b) The legislature shall enact laws to exclude from the right of suffrage persons who have been convicted of bribery, perjury, forgery, or other high crimes.
Here are the exceptions the Legislature has made.
From Texas' Elections Code:
Sec. 11.002. QUALIFIED VOTER. (a) In this code, "qualified voter" means a person who:
(1) is 18 years of age or older;
(2) is a United States citizen;
(3) has not been determined by a final judgment of a court exercising probate jurisdiction to be:
(A) totally mentally incapacitated; or
(B) partially mentally incapacitated without the right to vote;
(4) has not been finally convicted of a felony or, if so convicted, has:
(A) fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court; or
(B) been pardoned or otherwise released from the resulting disability to vote;
(5) is a resident of this state; and
(6) is a registered voter.
(b) For purposes of Subsection (a)(4), a person is not considered to have been finally convicted of an offense for which the criminal proceedings are deferred without an adjudication of guilt.
And wait, there's more:
Sec. 13.001. ELIGIBILITY FOR REGISTRATION. (a) To be eligible for registration as a voter in this state, a person must:
(1) be 18 years of age or older;
(2) be a United States citizen;
(3) not have been determined by a final judgment of a court exercising probate jurisdiction to be:
(A) totally mentally incapacitated; or
(B) partially mentally incapacitated without the right to vote;
(4) not have been finally convicted of a felony or, if so convicted, must have:
(A) fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court; or
(B) been pardoned or otherwise released from the resulting disability to vote; and
(5) be a resident of the county in which application for registration is made.
(b) To be eligible to apply for registration, a person must, on the date the registration application is submitted to the registrar, be at least 17 years and 10 months of age and satisfy the requirements of Subsection (a) except for age.
(c) For purposes of Subsection (a)(4), a person is not considered to have been finally convicted of an offense for which the criminal proceedings are deferred without an adjudication of guilt.
Felon Voting Rights
A few sources for more info about the variety of laws related to felons in the US.
National Conference of State Legislatures: Felon Voting Rights.
American Civil Liberties Union: Felony Disenfranchisement Laws.
National State Center for Courts: The Future of Restoring Voting Rights for Ex-Felons.
The Sentencing Project: Felony Disenfranchisement.
Note: each of these are interest groups. They're covered in the chapter on Interest Groups and Political Parties. The ACLU is also prominent in the chapters on civil liberties and civil rights.
From pro-con.org.
National Conference of State Legislatures: Felon Voting Rights.
American Civil Liberties Union: Felony Disenfranchisement Laws.
National State Center for Courts: The Future of Restoring Voting Rights for Ex-Felons.
The Sentencing Project: Felony Disenfranchisement.
Note: each of these are interest groups. They're covered in the chapter on Interest Groups and Political Parties. The ACLU is also prominent in the chapters on civil liberties and civil rights.
From pro-con.org.
There is a relationship between the right to travel and the right to vote
I just now learned this!
It's from the Dunn decision below, here's the relevant text:
"[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution." United States v. Guest, 383 U. S. 745, 383 U. S. 758 (1966). See Passenger Cases, 7 How. 283, 48 U. S. 492 (1849) (Taney, C.J.); Crandall v. Nevada, 6 Wall. 35, 73 U. S. 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 75 U. S. 180 (1869); Edwards v. California, 314 U. S. 160 (1941); Kent v. Dulles, 357 U. S. 116, 357 U. S. 126 (1958); Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 629-631, 394 U. S. 634 (1969); Oregon v. Mitchell, 400 U.S. at 400 U. S. 237 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.), 400 U. S. 285-286 (STEWART, J., concurring and dissenting, with whom BURGER, C.J., and BLACKMUN, J., joined). And it is clear that the freedom to travel includes the "freedom to enter and abide in any State in the Union," id. at 400 U. S. 285. Obviously, durational residence laws single out the class of bona fide state and county residents who have recently exercised this constitutionally protected right, and penalize such travelers directly. We considered such a durational residence requirement in Shapiro v. Thompson, supra, where the pertinent statutes imposed a one-year waiting period for interstate migrants as a condition to receiving welfare benefits. Although, in Shapiro, we specifically did not decide whether durational residence requirements could be used to determine voting eligibility,
Page 405 U. S. 339
id. at 394 U. S. 638 n. 21, we concluded that, since the right to travel was a constitutionally protected right,
"any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional."
Id. at 394 U. S. 634. This compelling state interest test was also adopted in the separate concurrence of MR. JUSTICE STEWART. Preceded by a long line of cases recognizing the constitutional right to travel, and repeatedly reaffirmed in the face of attempts to disregard it, see Wyman v. Bowens, 397 U. S. 49 (1970), and Wyman v. Lopez, 404 U.S. 1055 (1972), Shapiro and the compelling state interest test it articulates control this case.
Tennessee attempts to distinguish Shapiro by urging that "the vice of the welfare statute in Shapiro . . . was its objective to deter interstate travel." Brief for Appellants 13. In Tennessee's view, the compelling state interest test is appropriate only where there is "some evidence to indicate a deterrence of or infringement on the right to travel. . . ." Ibid. Thus, Tennessee seeks to avoid the clear command of Shapiro by arguing that durational residence requirements for voting neither seek to nor actually do deter such travel. In essence, Tennessee argues that the right to travel is not abridged here in any constitutionally relevant sense.
This view represents a fundamental misunderstanding of the law. [Footnote 8] It is irrelevant whether disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other "right to travel" cases in this Court always relied on the presence of actual deterrence.
By the way, despite the fact that the right to travel is recognized, it is not actually written in the Constitution.
It's from the Dunn decision below, here's the relevant text:
"[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution." United States v. Guest, 383 U. S. 745, 383 U. S. 758 (1966). See Passenger Cases, 7 How. 283, 48 U. S. 492 (1849) (Taney, C.J.); Crandall v. Nevada, 6 Wall. 35, 73 U. S. 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 75 U. S. 180 (1869); Edwards v. California, 314 U. S. 160 (1941); Kent v. Dulles, 357 U. S. 116, 357 U. S. 126 (1958); Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 629-631, 394 U. S. 634 (1969); Oregon v. Mitchell, 400 U.S. at 400 U. S. 237 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.), 400 U. S. 285-286 (STEWART, J., concurring and dissenting, with whom BURGER, C.J., and BLACKMUN, J., joined). And it is clear that the freedom to travel includes the "freedom to enter and abide in any State in the Union," id. at 400 U. S. 285. Obviously, durational residence laws single out the class of bona fide state and county residents who have recently exercised this constitutionally protected right, and penalize such travelers directly. We considered such a durational residence requirement in Shapiro v. Thompson, supra, where the pertinent statutes imposed a one-year waiting period for interstate migrants as a condition to receiving welfare benefits. Although, in Shapiro, we specifically did not decide whether durational residence requirements could be used to determine voting eligibility,
Page 405 U. S. 339
id. at 394 U. S. 638 n. 21, we concluded that, since the right to travel was a constitutionally protected right,
"any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional."
Id. at 394 U. S. 634. This compelling state interest test was also adopted in the separate concurrence of MR. JUSTICE STEWART. Preceded by a long line of cases recognizing the constitutional right to travel, and repeatedly reaffirmed in the face of attempts to disregard it, see Wyman v. Bowens, 397 U. S. 49 (1970), and Wyman v. Lopez, 404 U.S. 1055 (1972), Shapiro and the compelling state interest test it articulates control this case.
Tennessee attempts to distinguish Shapiro by urging that "the vice of the welfare statute in Shapiro . . . was its objective to deter interstate travel." Brief for Appellants 13. In Tennessee's view, the compelling state interest test is appropriate only where there is "some evidence to indicate a deterrence of or infringement on the right to travel. . . ." Ibid. Thus, Tennessee seeks to avoid the clear command of Shapiro by arguing that durational residence requirements for voting neither seek to nor actually do deter such travel. In essence, Tennessee argues that the right to travel is not abridged here in any constitutionally relevant sense.
This view represents a fundamental misunderstanding of the law. [Footnote 8] It is irrelevant whether disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other "right to travel" cases in this Court always relied on the presence of actual deterrence.
By the way, despite the fact that the right to travel is recognized, it is not actually written in the Constitution.
Purcell v. Gonzalez and Dunn v. Blumstein
Purcell v. Gonzalez was mentioned in the decision below as a case stating that voting is a fundamental political right (though that is not clearly stated anywhere in the Constitution).
The Purcell case cites Dunn v. Blumstein as the source of the precedence.
Here background on both cases, both from Oyez.
- Click here for Purcell v. Gonzalez.
Facts of the case: In 2002, Arizona passed Proposition 200, which required a photo ID for voter registration. The Election Assistance Commission (EAC) notified Arizona’s Secretary of State that Proposition 200 conflicted with the National Voter Registration Act (NVRA) regarding the need for photo ID as proof of citizenship for mailed voter registration forms. Shortly thereafter, the plaintiffs — Arizona residents, Indian tribes, and community organizations — filed a restraining order to prevent the state of Arizona from enforcing the new rules for voter registration. The petition for a restraining order was denied by the district court. The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit and argued that it should grant an emergency injunction based on the fact that elections were about to begin. The appellate court granted the injunction to stop the enforcement of Proposition 200.
Question: Did the U.S. Court of Appeals for the Ninth Circuit err in granting an emergency injunction regarding Proposition 200 close to election time?
Conclusion: In a per curiam decision, the Court held that the U.S. Court of Appeals for the Ninth Circuit erred in granting an injunction against the enforcement of Proposition 200. Because the lower court’s decision lacked any information regarding how it came to its conclusion, the Supreme Court could not properly assess this decision, so it ordered that the case be remanded.
Justice John Paul Stevens wrote a concurring opinion in which he agreed because there was no discussion of the rationale for requiring identification for voter registration.
- Click here for Dunn v. Blumstein.
Facts of the case: A Tennessee law required a one-year residence in the state and a three-month residence in the county as a precondition for voting. James Blumstein, a university professor who had recently moved to Tennessee, challenged the law by filing suit against Governor Winfield Dunn and other local officials in federal district court.
Question: Did Tennessee's durational residency requirements violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion: In a 6-to-1 decision, the Court held that the law was an unconstitutional infringement upon the right to vote and the right to travel. Applying a strict equal protection test, the Court found that the law did not necessarily promote a compelling state interest. Justice Marshall argued in the majority opinion that the durational residency requirements were neither the least restrictive means available to prevent electoral fraud nor an appropriate method of guaranteeing the existence of "knowledgeable voters" within the state.
The Purcell case cites Dunn v. Blumstein as the source of the precedence.
Here background on both cases, both from Oyez.
- Click here for Purcell v. Gonzalez.
Facts of the case: In 2002, Arizona passed Proposition 200, which required a photo ID for voter registration. The Election Assistance Commission (EAC) notified Arizona’s Secretary of State that Proposition 200 conflicted with the National Voter Registration Act (NVRA) regarding the need for photo ID as proof of citizenship for mailed voter registration forms. Shortly thereafter, the plaintiffs — Arizona residents, Indian tribes, and community organizations — filed a restraining order to prevent the state of Arizona from enforcing the new rules for voter registration. The petition for a restraining order was denied by the district court. The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit and argued that it should grant an emergency injunction based on the fact that elections were about to begin. The appellate court granted the injunction to stop the enforcement of Proposition 200.
Question: Did the U.S. Court of Appeals for the Ninth Circuit err in granting an emergency injunction regarding Proposition 200 close to election time?
Conclusion: In a per curiam decision, the Court held that the U.S. Court of Appeals for the Ninth Circuit erred in granting an injunction against the enforcement of Proposition 200. Because the lower court’s decision lacked any information regarding how it came to its conclusion, the Supreme Court could not properly assess this decision, so it ordered that the case be remanded.
Justice John Paul Stevens wrote a concurring opinion in which he agreed because there was no discussion of the rationale for requiring identification for voter registration.
- Click here for Dunn v. Blumstein.
Facts of the case: A Tennessee law required a one-year residence in the state and a three-month residence in the county as a precondition for voting. James Blumstein, a university professor who had recently moved to Tennessee, challenged the law by filing suit against Governor Winfield Dunn and other local officials in federal district court.
Question: Did Tennessee's durational residency requirements violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion: In a 6-to-1 decision, the Court held that the law was an unconstitutional infringement upon the right to vote and the right to travel. Applying a strict equal protection test, the Court found that the law did not necessarily promote a compelling state interest. Justice Marshall argued in the majority opinion that the durational residency requirements were neither the least restrictive means available to prevent electoral fraud nor an appropriate method of guaranteeing the existence of "knowledgeable voters" within the state.
BONNIE RAYSOR, ET AL. v. RON DESANTIS, GOVERNOR OF FLORIDA, ET AL
- Click here for the court's ruling stating that they declined to review the case.
Your chapter on the Judiciary discussed the rule of four - look it up. Three justices dissented in the decision. They explained why.
Their decision uses a great deal of terminology central to this class. It's worth a quick read. I'll post some quotes from the text shortly, but here are terms that stick out to me. It also touches on issues central to this week's readings - also next week's.
Since you've taken the first test, many of these should be familiar to you. I hope so anyway, lol.
- voter registration
- federal district court
- circuit court
- judicial federalism
- fundamental political right to vote.
Your chapter on the Judiciary discussed the rule of four - look it up. Three justices dissented in the decision. They explained why.
Their decision uses a great deal of terminology central to this class. It's worth a quick read. I'll post some quotes from the text shortly, but here are terms that stick out to me. It also touches on issues central to this week's readings - also next week's.
Since you've taken the first test, many of these should be familiar to you. I hope so anyway, lol.
- voter registration
- federal district court
- circuit court
- judicial federalism
- fundamental political right to vote.
- amendment
- legislature
- high court
- primary
- Equal Protection Clause
- Due Process Clause
- 24th Amendment
- plaintiffs
- wealth discrimination
- rational basis review
- indigence
- disenfranchisement
- dissent
- legislature
- high court
- primary
- Equal Protection Clause
- Due Process Clause
- 24th Amendment
- plaintiffs
- wealth discrimination
- rational basis review
- indigence
- disenfranchisement
- dissent
From Scotusblog: Justices decline to intervene in Florida voting dispute
Here is an illustration of state control of suffrage.
Recall that the Constitution originally gave this to the fully to the states, and only began placing limits on the states in the 15th Amendment. Aside from what is specifically mentioned in the 15, 19, 24, and 16 Amendments, states can place limits on voting. The two used in Texas are mental incompetence, and felony convictions. In Texas a convicted felon can gain back the right to vote after the sentence has been served, including parole. Each state can set whatever rules it wishes.
Florida does not allow felons to gain the right to vote back at all. That is the issue in this case.
Notice that this is about the ability to pay court costs, fees, and fines, which raises poll tax issues. The Supreme Court, by a 6-3 vote, didn't see a constitutional problem with that.
A secondary issue was wealth discrimination.
- Click here for the story.
The Supreme Court on Thursday rejected a request by Florida voters and civil rights groups to reinstate a ruling that would have cleared the way for thousands of Florida residents who have been convicted of a felony to vote in the state’s upcoming elections. Justice Sonia Sotomayor dissented from the ruling, writing an opinion that was joined by Justices Ruth Bader Ginsburg and Elena Kagan.
At the heart of the dispute is a 2018 amendment to Florida’s constitution that permits people with prior felony convictions to vote once they complete “all terms of their sentence including parole or probation.” In 2019, the state’s legislature passed a law that required residents who have been convicted of a felony to pay all court costs, fees and fines before they can become eligible to vote. Voters challenged the 2019 law, setting off a series of proceedings that culminated in Thursday’s order by the Supreme Court.
A federal district court in Florida initially blocked the state from enforcing the 2019 law on the ground that it discriminates on the basis of wealth. The U.S. Court of Appeals for the 11th Circuit upheld that ruling in February. In May, after a full trial, the district court issued a new ruling holding that the law violates the U.S. Constitution’s 24th Amendment, which bars poll taxes. The district court also concluded that because it could take years for the state to figure out how much residents with past convictions must pay to be eligible to vote, the law will discourage voters from registering at all, because they will be afraid that they will be charged with fraud if they make a mistake.
Recall that the Constitution originally gave this to the fully to the states, and only began placing limits on the states in the 15th Amendment. Aside from what is specifically mentioned in the 15, 19, 24, and 16 Amendments, states can place limits on voting. The two used in Texas are mental incompetence, and felony convictions. In Texas a convicted felon can gain back the right to vote after the sentence has been served, including parole. Each state can set whatever rules it wishes.
Florida does not allow felons to gain the right to vote back at all. That is the issue in this case.
Notice that this is about the ability to pay court costs, fees, and fines, which raises poll tax issues. The Supreme Court, by a 6-3 vote, didn't see a constitutional problem with that.
A secondary issue was wealth discrimination.
- Click here for the story.
The Supreme Court on Thursday rejected a request by Florida voters and civil rights groups to reinstate a ruling that would have cleared the way for thousands of Florida residents who have been convicted of a felony to vote in the state’s upcoming elections. Justice Sonia Sotomayor dissented from the ruling, writing an opinion that was joined by Justices Ruth Bader Ginsburg and Elena Kagan.
At the heart of the dispute is a 2018 amendment to Florida’s constitution that permits people with prior felony convictions to vote once they complete “all terms of their sentence including parole or probation.” In 2019, the state’s legislature passed a law that required residents who have been convicted of a felony to pay all court costs, fees and fines before they can become eligible to vote. Voters challenged the 2019 law, setting off a series of proceedings that culminated in Thursday’s order by the Supreme Court.
A federal district court in Florida initially blocked the state from enforcing the 2019 law on the ground that it discriminates on the basis of wealth. The U.S. Court of Appeals for the 11th Circuit upheld that ruling in February. In May, after a full trial, the district court issued a new ruling holding that the law violates the U.S. Constitution’s 24th Amendment, which bars poll taxes. The district court also concluded that because it could take years for the state to figure out how much residents with past convictions must pay to be eligible to vote, the law will discourage voters from registering at all, because they will be afraid that they will be charged with fraud if they make a mistake.
Tuesday, July 14, 2020
From Wikipedia: White Primaries
Up until 1944, it was lawful for states to allow racial segregation in primary elections.
Texas was - until recently - a one party state. No Republican party existed until the early 1960s, so the only competition was in the Democratic primary election. The state allowed the party to exclude Black voters, which effectively disenfranchised them.
- Click here for the entry.
White primaries were primary elections held in the Southern United States in which only white voters were permitted to participate. Statewide white primaries were established by the state Democratic Party units or by state legislatures in South Carolina (1896), Florida (1902), Mississippi and Alabama (also 1902), Texas (1905), Louisiana and Arkansas (1906), and Georgia (1908). The white primary was one method used by white Democrats to disenfranchise most black and other minority voters. They also passed laws and constitutions with provisions to raise barriers to voter registration, completing disenfranchisement from 1890 to 1908 in all states of the former Confederacy.
The Texas Legislature passed a law in 1923 that allowed political parties to make their own rules for their primaries. The dominant Democratic Party banned black and hispanic minorities from participating. The Supreme Court, in 1927, 1932, and 1935, heard three Texas cases related to white primaries. In the 1927 and 1932 cases, the Supreme Court ruled in favor of the plaintiff, saying that state laws establishing a white primary violated the Fourteenth Amendment. Later in 1927 Texas changed its law in response, delegating authority to political parties to establish their own rules for primaries. In Grovey v. Townsend (1935), the Supreme Court ruled that this practice was constitutional, as it was administered by the Democratic Party, which was a private, not a state institution.
In 1944, the Supreme Court ruled 8–1 against the Texas white primary system in Smith v. Allwright. In that case, the Court ruled that the 1923 Texas state law was unconstitutional, because it allowed the state Democratic Party to racially discriminate. After the case, most Southern states ended their selectively inclusive white primaries. They retained other devices of disenfranchisement, particularly in terms of barriers to voter registration, such as poll taxes and literacy tests. These generally survived legal challenges as they applied to all potential voters, but in practice they were administered in a discriminatory manner by white officials. Although the proportion of Southern blacks registered to vote steadily increased from less than 3 percent in 1940 to 29 percent in 1960 and over 40 percent in 1964, gains were minimal in Mississippi, Alabama, North Louisiana and southern parts of Georgia before the Voting Rights Act.
Texas was - until recently - a one party state. No Republican party existed until the early 1960s, so the only competition was in the Democratic primary election. The state allowed the party to exclude Black voters, which effectively disenfranchised them.
- Click here for the entry.
White primaries were primary elections held in the Southern United States in which only white voters were permitted to participate. Statewide white primaries were established by the state Democratic Party units or by state legislatures in South Carolina (1896), Florida (1902), Mississippi and Alabama (also 1902), Texas (1905), Louisiana and Arkansas (1906), and Georgia (1908). The white primary was one method used by white Democrats to disenfranchise most black and other minority voters. They also passed laws and constitutions with provisions to raise barriers to voter registration, completing disenfranchisement from 1890 to 1908 in all states of the former Confederacy.
The Texas Legislature passed a law in 1923 that allowed political parties to make their own rules for their primaries. The dominant Democratic Party banned black and hispanic minorities from participating. The Supreme Court, in 1927, 1932, and 1935, heard three Texas cases related to white primaries. In the 1927 and 1932 cases, the Supreme Court ruled in favor of the plaintiff, saying that state laws establishing a white primary violated the Fourteenth Amendment. Later in 1927 Texas changed its law in response, delegating authority to political parties to establish their own rules for primaries. In Grovey v. Townsend (1935), the Supreme Court ruled that this practice was constitutional, as it was administered by the Democratic Party, which was a private, not a state institution.
In 1944, the Supreme Court ruled 8–1 against the Texas white primary system in Smith v. Allwright. In that case, the Court ruled that the 1923 Texas state law was unconstitutional, because it allowed the state Democratic Party to racially discriminate. After the case, most Southern states ended their selectively inclusive white primaries. They retained other devices of disenfranchisement, particularly in terms of barriers to voter registration, such as poll taxes and literacy tests. These generally survived legal challenges as they applied to all potential voters, but in practice they were administered in a discriminatory manner by white officials. Although the proportion of Southern blacks registered to vote steadily increased from less than 3 percent in 1940 to 29 percent in 1960 and over 40 percent in 1964, gains were minimal in Mississippi, Alabama, North Louisiana and southern parts of Georgia before the Voting Rights Act.
7/14/20 - Election Day in Texas - Part Three
The national government does not oversee elections in the states. Following the ratification of several amendments (14, 15, 19, 24, 26) as well as the passage of the Voting Rights Act, the national government has provided a degree of protection for the right to vote, but that does not mean that they oversee their operations. They respond if someone claims that their voting rights have been unlawfully impeded.
Elections are overseen, separately, in each of the states in that state's office of the Secretary of State.
- Click here for the Texas Secretary of State (it is part of Texas' plural executive)
Among their duties is establishing the elections calendar in the state.
- Click here for the November 3, 2020 Election Law Calendar.
Elections are overseen, separately, in each of the states in that state's office of the Secretary of State.
- Click here for the Texas Secretary of State (it is part of Texas' plural executive)
Among their duties is establishing the elections calendar in the state.
- Click here for the November 3, 2020 Election Law Calendar.
7/14/20 - Election Day in Texas - Part Two
If you've read the U.S. Constitution clearly - or at all - you'll notice that the national government does not run elections - it gives that responsibility to the states. The U.S. Constitution does establish elected positions, which states are responsible for filling.
Here are the relevant parts of the U.S. Constitution. Notice the repeated mention of states.
Article One:
Section Two:
1. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the elector in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.
3. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers . . . The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.
4. When vacancies happen in the representation from any State, the Executive Authority thereof shall issue writs of election to fill such vacancies.
Section Three:
1. The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) (The preceding five words were superseded by Amendment XVII) for six years; and each Senator shall have one vote.
2. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.
Section Four:
1. 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 choosing Senators.
Article Two:
2. Each State shall appoint, in such manner as the Legislature may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
- See also the 12th Amendment.
In case you'd like to know where, in Texas, those laws exist, you can look here:
- Texas Election Code.
Here are the relevant parts of the U.S. Constitution. Notice the repeated mention of states.
Article One:
Section Two:
1. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the elector in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.
3. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers . . . The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.
4. When vacancies happen in the representation from any State, the Executive Authority thereof shall issue writs of election to fill such vacancies.
Section Three:
1. The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) (The preceding five words were superseded by Amendment XVII) for six years; and each Senator shall have one vote.
2. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.
Section Four:
1. 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 choosing Senators.
Article Two:
2. Each State shall appoint, in such manner as the Legislature may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
- See also the 12th Amendment.
In case you'd like to know where, in Texas, those laws exist, you can look here:
- Texas Election Code.
7/14/20 - Election Day in Texas - Part One
As you will notice, we have lots of elections in Texas and across the United States.
What's happening today is the runoff for the party primaries. The purpose of to finalize who will represent each party in the November general elections. Republicans vote in the Republican Primary, Democrats vote in the Democratic Primary.
Each party in Texas uses primary elections to determine their candidates for public office. These were held earlier in the year, but Texas requires a majority vote to win. That means the winner has over 50% of the vote. If no candidate gets a majority, the top two candidates face each other in a runoff.
Again, that's what's happening today.
Actually, it has been happening the previous two weeks since Texas allows for early voting.
For more:
- 6 things to watch in Texas’ primary runoff election.
What's happening today is the runoff for the party primaries. The purpose of to finalize who will represent each party in the November general elections. Republicans vote in the Republican Primary, Democrats vote in the Democratic Primary.
Each party in Texas uses primary elections to determine their candidates for public office. These were held earlier in the year, but Texas requires a majority vote to win. That means the winner has over 50% of the vote. If no candidate gets a majority, the top two candidates face each other in a runoff.
Again, that's what's happening today.
Actually, it has been happening the previous two weeks since Texas allows for early voting.
For more:
- 6 things to watch in Texas’ primary runoff election.
Sunday, July 12, 2020
For Summer 2's Second Written Assignment
From the Texas Tribune:
- Three Texas House runoffs give warring GOP factions chance to settle up before November.
This article is focused on races for the Texas House of Representatives, but it illustrates terms and concepts you will see in the chapters on elections, parties and interest groups.
I want you to read this and explain what it is telling us about competition within the Republican Party, not between Republicans and Democrats.
Relevant terms:
- incumbent
- primary
- hardline conservative
- runoff
- intraparty factions
- grassroots
- Republicans
- political elite
- Texas Right to Life
- Empower Texans
- special interest groups
- Associated Republicans of Texas
- Super PACs
- liberal
- Planned Parenthodd
- Second Amendment
- property tax
- Three Texas House runoffs give warring GOP factions chance to settle up before November.
This article is focused on races for the Texas House of Representatives, but it illustrates terms and concepts you will see in the chapters on elections, parties and interest groups.
I want you to read this and explain what it is telling us about competition within the Republican Party, not between Republicans and Democrats.
Relevant terms:
- incumbent
- primary
- hardline conservative
- runoff
- intraparty factions
- grassroots
- Republicans
- political elite
- Texas Right to Life
- Empower Texans
- special interest groups
- Associated Republicans of Texas
- Super PACs
- liberal
- Planned Parenthodd
- Second Amendment
- property tax
Trump v. Mazars USA, LLP
The second case decided last week concerning the president's immunity from investigations, this time from Congress.
- Click here for the opinion.
For detail:
- ScotusBlog.
- Wikipedia.
Summary from Oyez:
- Click here for it.
Facts of the case: The U.S. House of Representatives Committee on Oversight and Reform issued a subpoena to Mazars USA, the accounting firm for Donald Trump (in his capacity as a private citizen) and several of his businesses, demanding private financial records belonging to Trump. According to the Committee, the requested documents would inform its investigation into whether Congress should amend or supplement its ethics-in-government laws. Trump argued that the information serves no legitimate legislative purpose and sued to prevent Mazars from complying with the subpoena.
The district court granted summary judgment for the Committee, and the U.S. Court of Appeals for the D.C. Circuit affirmed, finding the Committee possesses the authority under both the House Rules and the Constitution.
In the consolidated case, Trump v. Deutsche Bank AG, No. 19-760, two committees of the U.S. House of Representatives—the Committee on Financial Services and the Intelligence Committee—issued a subpoena to the creditors of President Trump and several of his businesses. The district court denied Trump’s motion for a preliminary injunction to prevent compliance with the subpoenas, and the U.S. Court of Appeals for the Second Circuit affirmed in substantial part and remanded in part.
Question: Does the Constitution prohibit subpoenas issued to Donald Trump’s accounting firm requiring it to provide non-privileged financial records relating to Trump (as a private citizen) and some of his businesses?
Conclusion: The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information. Chief Justice John Roberts authored the 7-2 majority opinion of the Court.
The Court first acknowledged that this dispute between Congress and the Executive is the first of its kind to reach the Court and that the Court does not take lightly its responsibility to resolve the issue in a manner that ensures “it does not needlessly disturb ‘the compromises and working arrangements’ reached by those branches. Each house of Congress has “indispensable” power “to secure needed information” in order to legislate, including the power to issue a congressional subpoena, provided that the subpoena is “related to, and in furtherance of, a legitimate task of the Congress.” However, the issuance of a congressional subpoena upon the sitting President raises important separation-of-powers concerns. The standard advocated by the President—a “demonstrated, specific need”—is too stringent. At the same time, the standard advocated by the House—a “valid legislative purpose”—does not adequately safeguard the President from an overzealous and perhaps politically motivated Congress.
- Click here for the opinion.
For detail:
- ScotusBlog.
- Wikipedia.
Summary from Oyez:
- Click here for it.
Facts of the case: The U.S. House of Representatives Committee on Oversight and Reform issued a subpoena to Mazars USA, the accounting firm for Donald Trump (in his capacity as a private citizen) and several of his businesses, demanding private financial records belonging to Trump. According to the Committee, the requested documents would inform its investigation into whether Congress should amend or supplement its ethics-in-government laws. Trump argued that the information serves no legitimate legislative purpose and sued to prevent Mazars from complying with the subpoena.
The district court granted summary judgment for the Committee, and the U.S. Court of Appeals for the D.C. Circuit affirmed, finding the Committee possesses the authority under both the House Rules and the Constitution.
In the consolidated case, Trump v. Deutsche Bank AG, No. 19-760, two committees of the U.S. House of Representatives—the Committee on Financial Services and the Intelligence Committee—issued a subpoena to the creditors of President Trump and several of his businesses. The district court denied Trump’s motion for a preliminary injunction to prevent compliance with the subpoenas, and the U.S. Court of Appeals for the Second Circuit affirmed in substantial part and remanded in part.
Question: Does the Constitution prohibit subpoenas issued to Donald Trump’s accounting firm requiring it to provide non-privileged financial records relating to Trump (as a private citizen) and some of his businesses?
Conclusion: The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information. Chief Justice John Roberts authored the 7-2 majority opinion of the Court.
The Court first acknowledged that this dispute between Congress and the Executive is the first of its kind to reach the Court and that the Court does not take lightly its responsibility to resolve the issue in a manner that ensures “it does not needlessly disturb ‘the compromises and working arrangements’ reached by those branches. Each house of Congress has “indispensable” power “to secure needed information” in order to legislate, including the power to issue a congressional subpoena, provided that the subpoena is “related to, and in furtherance of, a legitimate task of the Congress.” However, the issuance of a congressional subpoena upon the sitting President raises important separation-of-powers concerns. The standard advocated by the President—a “demonstrated, specific need”—is too stringent. At the same time, the standard advocated by the House—a “valid legislative purpose”—does not adequately safeguard the President from an overzealous and perhaps politically motivated Congress.
What is a grand jury?
The lawsuit in Trump v Vance was over the constitutionality of a state grand jury request for records from President Trump's accountants.
So with that in mind, what exactly is a grand jury and how do they work?
- Wikipedia: Grand juries in the United States.
Grand juries in the United States are groups of citizens empowered by United States federal or state law to conduct legal proceedings, chiefly investigating potential criminal conduct and determining whether criminal charges should be brought. The grand jury originated under the law of England and spread through colonization to other jurisdictions as part of the common law.
. . . Generally speaking, a grand jury may issue an indictment for a crime, also known as a "true bill," only if it finds, based upon the evidence that has been presented to it, that there is probable cause to believe that a crime has been committed by a criminal suspect. Unlike a petit jury, which resolves a particular civil or criminal case, a grand jury (typically having twelve to twenty-three members) serves as a group for a sustained period of time in all or many of the cases that come up in the jurisdiction, generally under the supervision of a federal U.S. attorney, a county district attorney, or a state attorney-general, and hears evidence ex parte (i.e. without suspect or person of interest involvement in the proceedings).
. . . In the early decades of the United States grand juries played a major role in public matters. During that period counties followed the traditional practice of requiring all decisions be made by at least twelve of the grand jurors, (e.g., for a twenty-three-person grand jury, twelve people would constitute a bare majority). Any citizen could bring a matter before a grand jury directly, from a public work that needed repair, to the delinquent conduct of a public official, to a complaint of a crime, and grand juries could conduct their own investigations. In that era most criminal prosecutions were conducted by private parties, either a law enforcement officer, a lawyer hired by a crime victim or his family, or even by laymen. A layman could bring a bill of indictment to the grand jury; if the grand jury found there was sufficient evidence for a trial, that the act was a crime under law, and that the court had jurisdiction, it would return the indictment to the complainant. The grand jury would then appoint the complaining party to exercise the authority of an attorney general, that is, one having a general power of attorney to represent the state in the case. The grand jury served to screen out incompetent or malicious prosecutions. The advent of official public prosecutors in the later decades of the 19th century largely displaced private prosecutions.
For more:
Findlaw: How do Grand Juries Work?
So with that in mind, what exactly is a grand jury and how do they work?
- Wikipedia: Grand juries in the United States.
Grand juries in the United States are groups of citizens empowered by United States federal or state law to conduct legal proceedings, chiefly investigating potential criminal conduct and determining whether criminal charges should be brought. The grand jury originated under the law of England and spread through colonization to other jurisdictions as part of the common law.
. . . Generally speaking, a grand jury may issue an indictment for a crime, also known as a "true bill," only if it finds, based upon the evidence that has been presented to it, that there is probable cause to believe that a crime has been committed by a criminal suspect. Unlike a petit jury, which resolves a particular civil or criminal case, a grand jury (typically having twelve to twenty-three members) serves as a group for a sustained period of time in all or many of the cases that come up in the jurisdiction, generally under the supervision of a federal U.S. attorney, a county district attorney, or a state attorney-general, and hears evidence ex parte (i.e. without suspect or person of interest involvement in the proceedings).
. . . In the early decades of the United States grand juries played a major role in public matters. During that period counties followed the traditional practice of requiring all decisions be made by at least twelve of the grand jurors, (e.g., for a twenty-three-person grand jury, twelve people would constitute a bare majority). Any citizen could bring a matter before a grand jury directly, from a public work that needed repair, to the delinquent conduct of a public official, to a complaint of a crime, and grand juries could conduct their own investigations. In that era most criminal prosecutions were conducted by private parties, either a law enforcement officer, a lawyer hired by a crime victim or his family, or even by laymen. A layman could bring a bill of indictment to the grand jury; if the grand jury found there was sufficient evidence for a trial, that the act was a crime under law, and that the court had jurisdiction, it would return the indictment to the complainant. The grand jury would then appoint the complaining party to exercise the authority of an attorney general, that is, one having a general power of attorney to represent the state in the case. The grand jury served to screen out incompetent or malicious prosecutions. The advent of official public prosecutors in the later decades of the 19th century largely displaced private prosecutions.
For more:
Findlaw: How do Grand Juries Work?
"the public has a right to every man’s evidence"
Robert's opening sentence contained this interesting phrase. It gets to the heart of the reason there is a compulsory process for gathering evidence in the 6th Amendment.
In searching for background, I found that most of what popped up related to the privilege journalists have in concealing their sources. The idea being that it is more important for the information reporters get on the promise of confidentiality is more important than the evidence that could be introduced in court.
In the chapter on the media, you'll see mention of Branzburg v Hayes, which helped establish this right, and the limits to it.
- Click here for the case.
Facts: Paul Branzburg of The (Louisville) Courier-Journal, in the course of his reporting duties, witnessed people manufacturing and using hashish. He wrote two articles concerning drug use in Kentucky. The first featured unidentified hands holding hashish, while the second included marijuana users as sources. These sources requested not to be identified. Both of the articles were brought to attention of law-enforcement personnel. Branzburg was subpoenaed before a grand jury for both of the articles. He was ordered to name his sources.
Earl Caldwell, a reporter for The New York Times, conducted extensive interviews with the leaders of The Black Panthers, and Paul Pappas, a Massachusetts television reporter, who also reported on The Black Panthers, spending several hours in their headquarters were similarly subpoenaed around the same time as was Paul Branzburg.
All three reporters were called to testify before separate grand juries about illegal actions they might have witnessed. They refused, citing a privilege under the Press Clause, and were held in contempt.
Decision: In a fiercely-split decision, the Court ruled 5-4 against the existence of reportorial privilege in the Press Clause of the First Amendment. Writing for the majority, Justice Byron White declared that the petitioners were asking the Court "to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do." White acknowledged the argument that refusing to recognize such a privilege would undermine the ability of the press to gather news, but wrote that "from the beginning of the country the press has operated without constitutional protection for press informants, and the press has flourished."
He did not overlook the importance of a free press, however, and he established a test, citing Gibson v. Florida Legislative Investigation Comm., for deciding whether a reporter can be compelled to testify before a grand jury. For such a subpoena to have merit, the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."
For more:
- Not Just "Every Man": Revisiting the Journalist's Privilege Against Compelled Disclosure of Confidential Sources.
In searching for background, I found that most of what popped up related to the privilege journalists have in concealing their sources. The idea being that it is more important for the information reporters get on the promise of confidentiality is more important than the evidence that could be introduced in court.
In the chapter on the media, you'll see mention of Branzburg v Hayes, which helped establish this right, and the limits to it.
- Click here for the case.
Facts: Paul Branzburg of The (Louisville) Courier-Journal, in the course of his reporting duties, witnessed people manufacturing and using hashish. He wrote two articles concerning drug use in Kentucky. The first featured unidentified hands holding hashish, while the second included marijuana users as sources. These sources requested not to be identified. Both of the articles were brought to attention of law-enforcement personnel. Branzburg was subpoenaed before a grand jury for both of the articles. He was ordered to name his sources.
Earl Caldwell, a reporter for The New York Times, conducted extensive interviews with the leaders of The Black Panthers, and Paul Pappas, a Massachusetts television reporter, who also reported on The Black Panthers, spending several hours in their headquarters were similarly subpoenaed around the same time as was Paul Branzburg.
All three reporters were called to testify before separate grand juries about illegal actions they might have witnessed. They refused, citing a privilege under the Press Clause, and were held in contempt.
Decision: In a fiercely-split decision, the Court ruled 5-4 against the existence of reportorial privilege in the Press Clause of the First Amendment. Writing for the majority, Justice Byron White declared that the petitioners were asking the Court "to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do." White acknowledged the argument that refusing to recognize such a privilege would undermine the ability of the press to gather news, but wrote that "from the beginning of the country the press has operated without constitutional protection for press informants, and the press has flourished."
He did not overlook the importance of a free press, however, and he established a test, citing Gibson v. Florida Legislative Investigation Comm., for deciding whether a reporter can be compelled to testify before a grand jury. For such a subpoena to have merit, the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."
For more:
- Not Just "Every Man": Revisiting the Journalist's Privilege Against Compelled Disclosure of Confidential Sources.
Saturday, July 11, 2020
Executive Privilege
This is the concept presidents have used to claim that the compulsory process clause does not apply to them since it may interfere with the president's ability to do his job. In Trump v. Vance, the presidents lawyers argue that allowing the subpoena to go forward creates the following burdens:
- diversion
- stigma
- harrassment
For more, click here.
Executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and other oversight by the legislative and judicial branches of government in pursuit of particular information or personnel relating to those confidential communications. The right comes into effect when revealing information would impair governmental functions. Neither executive privilege nor the oversight power of Congress is explicitly mentioned in the United States Constitution. However, the Supreme Court of the United States has ruled that executive privilege and congressional oversight each are a consequence of the doctrine of the separation of powers, derived from the supremacy of each branch in its own area of Constitutional activity.
The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon in the context of a subpoena emanating from the judiciary, instead of emanating from Congress. The Court held that there is a qualified privilege, which once invoked, creates a presumption of privilege, and the party seeking the documents must then make a "sufficient showing" that the "presidential material" is "essential to the justice of the case". Chief Justice Warren Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns. Regarding requests from Congress (instead of from the courts) for executive branch information, as of a 2014 study by the Congressional Research Service, only two federal court cases had addressed the merits of executive privilege in such a context, and neither of those cases reached the Supreme Court.
In addition to which branch of government is requesting the information, another characteristic of executive privilege is whether it involves a "presidential communications privilege" or instead a "deliberative process privilege" or some other type of privilege. The deliberative process privilege is often considered to be rooted in common law, whereas the presidential communications privilege is often considered to be rooted in separation of powers, thus making the deliberative process privilege less difficult to overcome. Generally speaking, presidents, congresses and courts have historically tended to sidestep open confrontations through compromise and mutual deference in view of previous practice and precedents regarding the exercise of executive privilege.
- diversion
- stigma
- harrassment
For more, click here.
Executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and other oversight by the legislative and judicial branches of government in pursuit of particular information or personnel relating to those confidential communications. The right comes into effect when revealing information would impair governmental functions. Neither executive privilege nor the oversight power of Congress is explicitly mentioned in the United States Constitution. However, the Supreme Court of the United States has ruled that executive privilege and congressional oversight each are a consequence of the doctrine of the separation of powers, derived from the supremacy of each branch in its own area of Constitutional activity.
The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon in the context of a subpoena emanating from the judiciary, instead of emanating from Congress. The Court held that there is a qualified privilege, which once invoked, creates a presumption of privilege, and the party seeking the documents must then make a "sufficient showing" that the "presidential material" is "essential to the justice of the case". Chief Justice Warren Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns. Regarding requests from Congress (instead of from the courts) for executive branch information, as of a 2014 study by the Congressional Research Service, only two federal court cases had addressed the merits of executive privilege in such a context, and neither of those cases reached the Supreme Court.
In addition to which branch of government is requesting the information, another characteristic of executive privilege is whether it involves a "presidential communications privilege" or instead a "deliberative process privilege" or some other type of privilege. The deliberative process privilege is often considered to be rooted in common law, whereas the presidential communications privilege is often considered to be rooted in separation of powers, thus making the deliberative process privilege less difficult to overcome. Generally speaking, presidents, congresses and courts have historically tended to sidestep open confrontations through compromise and mutual deference in view of previous practice and precedents regarding the exercise of executive privilege.
"compulsory process"
This is referred to several times in the Trump v. Vance decision, since it applies to your readings on civil liberties, here is more on it.
You'll find the phrase in the 6th Amendment, which regards trial procedures and specifically what rights criminal defendants have in a trial. In this case, there is a compulsory process for obtaining witnesses in one's favor.
In all criminal prosecutions, the accused shall enjoy the right...to have compulsory process for obtaining witnesses in his favor.
This is part of the due process of the law, which is the subject of the 4th - 8th amendments. The United States v Nixon applied this to the prosecution against Nixon, who was compelled to release evidence. That is the same basic argument used in Trump v Vance.
For more, click here.
You'll find the phrase in the 6th Amendment, which regards trial procedures and specifically what rights criminal defendants have in a trial. In this case, there is a compulsory process for obtaining witnesses in one's favor.
In all criminal prosecutions, the accused shall enjoy the right...to have compulsory process for obtaining witnesses in his favor.
This is part of the due process of the law, which is the subject of the 4th - 8th amendments. The United States v Nixon applied this to the prosecution against Nixon, who was compelled to release evidence. That is the same basic argument used in Trump v Vance.
For more, click here.
United State v Nixon / Clinton v Jones
Both of these cases are used as precedence to allow the grand jury subpoena against President Trump to go forward.
A bit of background on each of them:
United State v Nixon
From Oyez: - Click here for the link.
Facts of the case: A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest. Decided together with Nixon v. United States.
Question: Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review?
Conclusion: No. The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes.
For more on Watergate, click here.
Clinton v Jones
- From Oyez: Click here for the link.
Facts of the case: Paula Corbin Jones sued President Bill Clinton. She alleged that while she was an Arkansas state employee, she suffered several "abhorrent" sexual advances from then Arkansas Governor Clinton. Jones claimed that her continued rejection of Clinton's advances ultimately resulted in punishment by her state supervisors. Following a District Court's grant of Clinton's request that all matters relating to the suit be suspended, pending a ruling on his prior request to have the suit dismissed on grounds of presidential immunity, Clinton sought to invoke his immunity to completely dismiss the Jones suit against him. While the District Judge denied Clinton's immunity request, the judge ordered the stay of any trial in the matter until after Clinton's Presidency. On appeal, the Eighth Circuit affirmed the dismissal denial but reversed the trial deferment ruling since it would be a "functional equivalent" to an unlawful grant of temporary presidential immunity.
Question: Is a serving President, for separation of powers reasons, entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office?
Conclusion: No. In a unanimous opinion, the Court held that the Constitution does not grant a sitting President immunity from civil litigation except under highly unusual circumstances. After noting the great respect and dignity owed to the Executive office, the Court held that neither separation of powers nor the need for confidentiality of high-level information can justify an unqualified Presidential immunity from judicial process. While the independence of our government's branches must be protected under the doctrine of separation of powers, the Constitution does not prohibit these branches from exercising any control over one another. This, the Court added, is true despite the procedural burdens which Article III jurisdiction may impose on the time, attention, and resources of the Chief Executive.
- For more background, click here.
A bit of background on each of them:
United State v Nixon
From Oyez: - Click here for the link.
Facts of the case: A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest. Decided together with Nixon v. United States.
Question: Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review?
Conclusion: No. The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes.
For more on Watergate, click here.
Clinton v Jones
- From Oyez: Click here for the link.
Facts of the case: Paula Corbin Jones sued President Bill Clinton. She alleged that while she was an Arkansas state employee, she suffered several "abhorrent" sexual advances from then Arkansas Governor Clinton. Jones claimed that her continued rejection of Clinton's advances ultimately resulted in punishment by her state supervisors. Following a District Court's grant of Clinton's request that all matters relating to the suit be suspended, pending a ruling on his prior request to have the suit dismissed on grounds of presidential immunity, Clinton sought to invoke his immunity to completely dismiss the Jones suit against him. While the District Judge denied Clinton's immunity request, the judge ordered the stay of any trial in the matter until after Clinton's Presidency. On appeal, the Eighth Circuit affirmed the dismissal denial but reversed the trial deferment ruling since it would be a "functional equivalent" to an unlawful grant of temporary presidential immunity.
Question: Is a serving President, for separation of powers reasons, entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office?
Conclusion: No. In a unanimous opinion, the Court held that the Constitution does not grant a sitting President immunity from civil litigation except under highly unusual circumstances. After noting the great respect and dignity owed to the Executive office, the Court held that neither separation of powers nor the need for confidentiality of high-level information can justify an unqualified Presidential immunity from judicial process. While the independence of our government's branches must be protected under the doctrine of separation of powers, the Constitution does not prohibit these branches from exercising any control over one another. This, the Court added, is true despite the procedural burdens which Article III jurisdiction may impose on the time, attention, and resources of the Chief Executive.
- For more background, click here.
Friday, July 10, 2020
From the Federal Judicial Center: The Aaron Burr Treason Trial
In Robert's opinion in Trump v Barr, he mentions that the idea that a president is subject to subpoena dates back to the federal government's treason trial against Aaron Burr.
Burr argued that Jefferson had papers that would exonerate him, and that he had a 6th amendment right to that material, the court agreed. In addition, the precise language in the Constitution was used to acquit Burr.
- Here is a description of the trial.
For detail on the Burr Conspiracy, which involved the territory which would later become Texas, click below.
Wikipedia: Burr Conspiracy.
Burr's trial brought into question the ideas of executive privilege, state secrets privilege, and the independence of the executive. Burr's lawyers, including John Wickham, asked Chief Justice John Marshall to subpoena Jefferson, claiming that they needed documents from Jefferson to present their case accurately. Jefferson proclaimed that as President, he was "...Reserving the necessary right of the President of the U S to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom..." He insisted that all relevant papers had been made available, and that he was not subject to this writ because he held executive privilege. He also argued that he should not be subject to the commands of the judiciary, because the constitution guaranteed the executive branch's independence from the judicial branch. Marshall decided that the subpoena could be issued despite Jefferson's position of presidency. Though Marshall vowed to consider Jefferson's office and avoid "vexatious and unnecessary subpoenas," his ruling was significant because it suggested that, like all citizens, the President was subject to the law.
Marshall had to consider the definition of treason and whether intent was sufficient for conviction, rather than action. Marshall ruled that because Burr had not committed an act of war, he could not be found guilty (see Ex parte Bollman); the First Amendment guaranteed Burr the right to voice opposition to the government. To merely suggest war or to engage in a conspiracy was not enough. To be convicted of treason, Marshall ruled, an overt act of participation must be proven with evidence. Intention to divide the union was not an overt act: "There must be an actual assembling of men for the treasonable purpose, to constitute a levying of war." Marshall further supported his decision by indicating that the Constitution stated that two witnesses must see the same overt act against the country. Marshall narrowly construed the definition of treason provided in Article III of the Constitution; he noted that the prosecution had failed to prove that Burr had committed an "overt act," as the Constitution required. As a result, the jury acquitted the defendant
Burr argued that Jefferson had papers that would exonerate him, and that he had a 6th amendment right to that material, the court agreed. In addition, the precise language in the Constitution was used to acquit Burr.
- Here is a description of the trial.
For detail on the Burr Conspiracy, which involved the territory which would later become Texas, click below.
Wikipedia: Burr Conspiracy.
Burr's trial brought into question the ideas of executive privilege, state secrets privilege, and the independence of the executive. Burr's lawyers, including John Wickham, asked Chief Justice John Marshall to subpoena Jefferson, claiming that they needed documents from Jefferson to present their case accurately. Jefferson proclaimed that as President, he was "...Reserving the necessary right of the President of the U S to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom..." He insisted that all relevant papers had been made available, and that he was not subject to this writ because he held executive privilege. He also argued that he should not be subject to the commands of the judiciary, because the constitution guaranteed the executive branch's independence from the judicial branch. Marshall decided that the subpoena could be issued despite Jefferson's position of presidency. Though Marshall vowed to consider Jefferson's office and avoid "vexatious and unnecessary subpoenas," his ruling was significant because it suggested that, like all citizens, the President was subject to the law.
Marshall had to consider the definition of treason and whether intent was sufficient for conviction, rather than action. Marshall ruled that because Burr had not committed an act of war, he could not be found guilty (see Ex parte Bollman); the First Amendment guaranteed Burr the right to voice opposition to the government. To merely suggest war or to engage in a conspiracy was not enough. To be convicted of treason, Marshall ruled, an overt act of participation must be proven with evidence. Intention to divide the union was not an overt act: "There must be an actual assembling of men for the treasonable purpose, to constitute a levying of war." Marshall further supported his decision by indicating that the Constitution stated that two witnesses must see the same overt act against the country. Marshall narrowly construed the definition of treason provided in Article III of the Constitution; he noted that the prosecution had failed to prove that Burr had committed an "overt act," as the Constitution required. As a result, the jury acquitted the defendant
Trump v Vance
I'll post a few items related to this case announced yesterday - 7/9/20.
- Click here for the decision.
For the case itself:
- Ballotpedia.
- Oyez.
- Scotusblog.
- Wikipedia.
From Oyez:
Facts of the case: The district attorney of New York County issued a grand jury subpoena to an accounting firm that possessed the financial records of President Donald Trump and one of his businesses. Trump asked a federal court to restrain enforcement of that subpoena, but the district court declined to exercise jurisdiction and dismissed the case based on Supreme Court precedent regarding federal intrusion into ongoing state criminal prosecutions. The court held, in the alternative, that there was no constitutional basis to temporarily restrain or preliminarily enjoin the subpoena at issue.
The U.S. Court of Appeals for the Second Circuit affirmed the lower court with respect to the alternative holding, finding that any presidential immunity from state criminal process does not extend to investigative steps like the grand jury subpoena. However, it found that the Supreme Court precedent on which the lower court relied did not apply to the situation and vacated the judgment as to that issue and remanded the case to the lower court.
Question: Does the Constitution permit a county prosecutor to subpoena a third-party custodian for the financial and tax records of a sitting president, over which the president has no claim of executive privilege?
Conclusion: Article II and the Supremacy Clause neither categorically preclude, nor require a heightened standard for, the issuance of a state criminal subpoena to a sitting President. All nine justices agreed that a President does not have absolute immunity from the issuance of a state criminal subpoena, but a seven-justice majority voted to affirm the decision of the Second Circuit below.
Chief Justice John Roberts wrote the opinion of the Court. The Chief Justice noted from the outset that the Supreme Court has long held that the President is subject to subpoena in federal criminal proceedings. In this case, the question was whether the President has absolute immunity from state criminal subpoenas. The Court held in Clinton v. Jones, 520 U.S. 681 (1997), that federal criminal subpoenas do not rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions, and here, it rejected the President’s argument that state criminal subpoenas pose a unique and greater threat.
Key terms:
- district attorney
- county
- grand jury
- subpoena
- president
- federal court
- district court
- jurisdiction
- precedence
- criminal prosecution
- constitutional basis
- US Court of Appeals
- Second Circuit
- presidential immunity
- state criminal process
- Supreme Court
- vacate
- remanded
- county prosecutor
- executive privilege
- Article II
- supremacy clause
- heightened standard
- absolute immunity
- opinion
- federal criminal proceedings
- Click here for the decision.
For the case itself:
- Ballotpedia.
- Oyez.
- Scotusblog.
- Wikipedia.
From Oyez:
Facts of the case: The district attorney of New York County issued a grand jury subpoena to an accounting firm that possessed the financial records of President Donald Trump and one of his businesses. Trump asked a federal court to restrain enforcement of that subpoena, but the district court declined to exercise jurisdiction and dismissed the case based on Supreme Court precedent regarding federal intrusion into ongoing state criminal prosecutions. The court held, in the alternative, that there was no constitutional basis to temporarily restrain or preliminarily enjoin the subpoena at issue.
The U.S. Court of Appeals for the Second Circuit affirmed the lower court with respect to the alternative holding, finding that any presidential immunity from state criminal process does not extend to investigative steps like the grand jury subpoena. However, it found that the Supreme Court precedent on which the lower court relied did not apply to the situation and vacated the judgment as to that issue and remanded the case to the lower court.
Question: Does the Constitution permit a county prosecutor to subpoena a third-party custodian for the financial and tax records of a sitting president, over which the president has no claim of executive privilege?
Conclusion: Article II and the Supremacy Clause neither categorically preclude, nor require a heightened standard for, the issuance of a state criminal subpoena to a sitting President. All nine justices agreed that a President does not have absolute immunity from the issuance of a state criminal subpoena, but a seven-justice majority voted to affirm the decision of the Second Circuit below.
Chief Justice John Roberts wrote the opinion of the Court. The Chief Justice noted from the outset that the Supreme Court has long held that the President is subject to subpoena in federal criminal proceedings. In this case, the question was whether the President has absolute immunity from state criminal subpoenas. The Court held in Clinton v. Jones, 520 U.S. 681 (1997), that federal criminal subpoenas do not rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions, and here, it rejected the President’s argument that state criminal subpoenas pose a unique and greater threat.
Key terms:
- district attorney
- county
- grand jury
- subpoena
- president
- federal court
- district court
- jurisdiction
- precedence
- criminal prosecution
- constitutional basis
- US Court of Appeals
- Second Circuit
- presidential immunity
- state criminal process
- Supreme Court
- vacate
- remanded
- county prosecutor
- executive privilege
- Article II
- supremacy clause
- heightened standard
- absolute immunity
- opinion
- federal criminal proceedings
Meet Horace Mann
He's why you have tuition free public schools
- Click here for the Wikipedia entry.
Horace Mann (May 4, 1796 – August 2, 1859) was an American educational reformer and Whig politician known for his commitment to promoting public education. In 1848, after public service as Secretary of the Massachusetts State Board of Education, Mann was elected to the United States House of Representatives (1848–1853). From September 1852 to his death, he served as President of Antioch College.
About Mann's intellectual progressivism, the historian Ellwood P. Cubberley said:
No one did more than he to establish in the minds of the American people the conception that education should be universal, non-sectarian, free, and that its aims should be social efficiency, civic virtue, and character, rather than mere learning or the advancement of sectarian ends.
Arguing that universal public education was the best way to turn unruly American children into disciplined, judicious republican citizens, Mann won widespread approval from modernizers, especially in the Whig Party, for building public schools.
- Click here for the Wikipedia entry.
Horace Mann (May 4, 1796 – August 2, 1859) was an American educational reformer and Whig politician known for his commitment to promoting public education. In 1848, after public service as Secretary of the Massachusetts State Board of Education, Mann was elected to the United States House of Representatives (1848–1853). From September 1852 to his death, he served as President of Antioch College.
About Mann's intellectual progressivism, the historian Ellwood P. Cubberley said:
No one did more than he to establish in the minds of the American people the conception that education should be universal, non-sectarian, free, and that its aims should be social efficiency, civic virtue, and character, rather than mere learning or the advancement of sectarian ends.
Arguing that universal public education was the best way to turn unruly American children into disciplined, judicious republican citizens, Mann won widespread approval from modernizers, especially in the Whig Party, for building public schools.
From Current Affairs: What’s New About Free College?
A look at the political movement which established tuition free elementary and secondary education.
- Click here for the article.
The story of public education in the United States begins with the “common schools” movement. In the decades after independence, political leaders in the early Republic were worried. Democracy required ordinary people to do more than dumbly follow the commands of their social betters; they were expected to actively take part in the decisions of government. This caused no end of anxiety among elites. Could “the people” really do this? Could a political system that depended on the opinion of “every citizen who is worth a few shillings,” as Noah Webster put it, really survive?
The answer, according to figures ranging from the abolitionist Webster to the slaveholder Thomas Jefferson, was yes—just as long as “the people” were properly educated. The educational “system” of the era—characterized by private academies, individual tutors, and the occasional charity school—was not up to the task. This need for democratic education was the driving motivation behind the establishment of “common schools”—publicly funded, free elementary schools that were available to boys and girls through eighth grade.
The real founder of the common school movement was Horace Mann, a wealthy lawyer who was appointed as Massachusetts’ first Secretary to the newly created Board of Public Education in 1837. Mann was an extraordinary character: a canny backroom politician, a talented community organizer, a brilliant orator, and a messianic true believer, all rolled into one. He dedicated his strange personality entirely to the creation of common schools (following his own personal edict: “Be ashamed to die until you have won some victory for humanity”).
For more:
- Common School.
- Common School movement.
- Click here for the article.
The story of public education in the United States begins with the “common schools” movement. In the decades after independence, political leaders in the early Republic were worried. Democracy required ordinary people to do more than dumbly follow the commands of their social betters; they were expected to actively take part in the decisions of government. This caused no end of anxiety among elites. Could “the people” really do this? Could a political system that depended on the opinion of “every citizen who is worth a few shillings,” as Noah Webster put it, really survive?
The answer, according to figures ranging from the abolitionist Webster to the slaveholder Thomas Jefferson, was yes—just as long as “the people” were properly educated. The educational “system” of the era—characterized by private academies, individual tutors, and the occasional charity school—was not up to the task. This need for democratic education was the driving motivation behind the establishment of “common schools”—publicly funded, free elementary schools that were available to boys and girls through eighth grade.
The real founder of the common school movement was Horace Mann, a wealthy lawyer who was appointed as Massachusetts’ first Secretary to the newly created Board of Public Education in 1837. Mann was an extraordinary character: a canny backroom politician, a talented community organizer, a brilliant orator, and a messianic true believer, all rolled into one. He dedicated his strange personality entirely to the creation of common schools (following his own personal edict: “Be ashamed to die until you have won some victory for humanity”).
For more:
- Common School.
- Common School movement.
Thursday, July 9, 2020
Native Americans in the Constitution
- From Wikipedia: Tribal sovereignty in the United States.
The United States Constitution mentions Native American tribes three times:
- Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed."According to Story's Commentaries on the U.S. Constitution, "There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states."
- Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes", determining that Indian tribes were separate from the federal government, the states, and foreign nations; and
- The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.
These basic provisions have been changed or clarified by various federal laws over the history of the United States. Regulate historically meant facilitate, rather than control or direct in the more modern sense. Therefore, the Congress of these United States was to be the facilitator of commerce between the states and the tribes.
These constitutional provisions, and subsequent interpretations by the Supreme Court (see below), are today often summarized in three principles of U.S. Indian law:
- Territorial sovereignty: Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located.
- Plenary power doctrine: Congress, and not the Executive Branch or Judicial Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects.
- Trust relationship: The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty
The United States Constitution mentions Native American tribes three times:
- Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed."According to Story's Commentaries on the U.S. Constitution, "There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states."
- Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes", determining that Indian tribes were separate from the federal government, the states, and foreign nations; and
- The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.
These basic provisions have been changed or clarified by various federal laws over the history of the United States. Regulate historically meant facilitate, rather than control or direct in the more modern sense. Therefore, the Congress of these United States was to be the facilitator of commerce between the states and the tribes.
These constitutional provisions, and subsequent interpretations by the Supreme Court (see below), are today often summarized in three principles of U.S. Indian law:
- Territorial sovereignty: Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located.
- Plenary power doctrine: Congress, and not the Executive Branch or Judicial Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects.
- Trust relationship: The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty
What is a Domestic Dependent Nation?
The term was made up by Chief Justice John Marshal in the following case:
- Worcester v. Georgia.
- From Tribal Sovereignty:
. . . the modern definition of tribal sovereignty acknowledges that tribes possess a unique political status different from any other group in the United States. Thus, federal and state governments are required to engage in government-to-government relationships with all federally recognized tribes.
This unique political status has evolved from the inherent sovereign status of Indigenous peoples prior to European contact and through the process of treaty making between the United States and the various tribes. The Indian Commerce Clause of the United States Constitution (Article I, 8, clause 3) is the main source of the “nation to nation” relationship between the federal government and tribes, and has been the primary vehicle used by Congress to recognize and define tribal sovereignty. In addition, the Court has ruled that Congress, as the legislative body of the nation, and not state governments, has an intrinsic power to deal with the Indian nations that reside within the borders of the United States.
The Marshall trilogy, a series of three Supreme Court cases decided by Chief Justice John Marshall beginning in the 1830’s, set forth the legal framework for defining Tribal sovereignty. In defining tribal sovereign powers, Justice Marshall described tribes as “domestic dependent nations,” meaning that although tribes were “distinct independent political communities,” they remained subject to the paternalistic powers of the United States. Thus, Indian tribes possess internal governmental power over all affairs within the tribe, but lack external authorities to engage in relationships with foreign nations. It is important to note that state governments do not possess authority over tribes and the powers to “expand” or “contract” tribal sovereign authority rests solely within the power of the federal government. Thus, sovereignty also means that states are precluded from interfering with the tribes in their self-governance, while at the same time the United States congress reserves plenary power to change the scope and definition of tribal sovereignty.
- Worcester v. Georgia.
- From Tribal Sovereignty:
. . . the modern definition of tribal sovereignty acknowledges that tribes possess a unique political status different from any other group in the United States. Thus, federal and state governments are required to engage in government-to-government relationships with all federally recognized tribes.
This unique political status has evolved from the inherent sovereign status of Indigenous peoples prior to European contact and through the process of treaty making between the United States and the various tribes. The Indian Commerce Clause of the United States Constitution (Article I, 8, clause 3) is the main source of the “nation to nation” relationship between the federal government and tribes, and has been the primary vehicle used by Congress to recognize and define tribal sovereignty. In addition, the Court has ruled that Congress, as the legislative body of the nation, and not state governments, has an intrinsic power to deal with the Indian nations that reside within the borders of the United States.
The Marshall trilogy, a series of three Supreme Court cases decided by Chief Justice John Marshall beginning in the 1830’s, set forth the legal framework for defining Tribal sovereignty. In defining tribal sovereign powers, Justice Marshall described tribes as “domestic dependent nations,” meaning that although tribes were “distinct independent political communities,” they remained subject to the paternalistic powers of the United States. Thus, Indian tribes possess internal governmental power over all affairs within the tribe, but lack external authorities to engage in relationships with foreign nations. It is important to note that state governments do not possess authority over tribes and the powers to “expand” or “contract” tribal sovereign authority rests solely within the power of the federal government. Thus, sovereignty also means that states are precluded from interfering with the tribes in their self-governance, while at the same time the United States congress reserves plenary power to change the scope and definition of tribal sovereignty.
From Wikipedia: Major Crimes Act
This is the legislation at the heart of McGirt v Oklahoma. It is one of a handful of laws that allow the national government the power to prosecute people for criminal activities despite the fact that the Constitution does not give Congress the enumerated power to do so. This function is reserved to the states, in what are called the police powers.
This is one of the basic tensions that exist in our federal system. As you read your textbook, be attuned to it.
- Major Crimes Act
. . . a law passed by the United States Congress in 1885 as the final section of the Indian Appropriations Act of that year. The law places certain crimes under federal jurisdiction if they are committed by a Native American in Native territory.
This list of crimes has since been updated to the following:
Murder
Manslaughter
Kidnapping
Maiming
A felony under chapter 109A (i.e. sexual abuse)
Incest
A felony assault under section 113 (e.g. assault with intent to commit murder or assault with a dangerous weapon)
An assault against an individual who has not attained the age of 16 years
Felony child abuse or neglect,
Arson
Burglary
Robbery, and
A felony under section 661 of this title (i. e. larceny)
Note that none of these are enumerated in the Constitution, which raises the question about the laws Constitutionality. The Supreme Court considered this question in the following case, but found the law to not be in violation of the Constitution.
- United States v. Kagama.
. . . Kagama, a Yurok Native American (Indian) accused of murder, was selected as a test case by the Department of Justice to test the constitutionality of the Act.
The importance of the ruling in this case was that it tested the constitutionality of the Act and confirmed Congress' authority over Indian affairs. Plenary power over Indian tribes, supposedly granted to the U.S. Congress by the Commerce Clause of the Constitution, was not deemed necessary to support the Supreme Court in this decision; instead, the Court found the power in the tribes' status as dependent domestic nations. This allowed Congress to pass the Dawes Act the following year. The case has been criticized by legal scholars as drawing on powers that are not granted to Congress by the Constitution. It remains good law, despite that criticism.
This is one of the basic tensions that exist in our federal system. As you read your textbook, be attuned to it.
- Major Crimes Act
. . . a law passed by the United States Congress in 1885 as the final section of the Indian Appropriations Act of that year. The law places certain crimes under federal jurisdiction if they are committed by a Native American in Native territory.
This list of crimes has since been updated to the following:
Murder
Manslaughter
Kidnapping
Maiming
A felony under chapter 109A (i.e. sexual abuse)
Incest
A felony assault under section 113 (e.g. assault with intent to commit murder or assault with a dangerous weapon)
An assault against an individual who has not attained the age of 16 years
Felony child abuse or neglect,
Arson
Burglary
Robbery, and
A felony under section 661 of this title (i. e. larceny)
Note that none of these are enumerated in the Constitution, which raises the question about the laws Constitutionality. The Supreme Court considered this question in the following case, but found the law to not be in violation of the Constitution.
- United States v. Kagama.
. . . Kagama, a Yurok Native American (Indian) accused of murder, was selected as a test case by the Department of Justice to test the constitutionality of the Act.
The importance of the ruling in this case was that it tested the constitutionality of the Act and confirmed Congress' authority over Indian affairs. Plenary power over Indian tribes, supposedly granted to the U.S. Congress by the Commerce Clause of the Constitution, was not deemed necessary to support the Supreme Court in this decision; instead, the Court found the power in the tribes' status as dependent domestic nations. This allowed Congress to pass the Dawes Act the following year. The case has been criticized by legal scholars as drawing on powers that are not granted to Congress by the Constitution. It remains good law, despite that criticism.
From the Oklahoma Historical Society: Removal of Tribes to Oklahoma
A terrific overview of the removal of native populations from the east to Oklahoma
- Click here for it.
- Click here for it.
From Wikipedia: An act to provide for an exchange of lands with the Indians residing in any of the states or territories, and for their removal west of the river Mississippi.
Otherwise known as the Indian Removal Act.
- Click here for the entry.
The Indian Removal Act was signed into law on May 28, 1830, by United States President Andrew Jackson. The law authorized the president to negotiate with southern Native American tribes for their removal to federal territory west of the Mississippi River in exchange for white settlement of their ancestral lands. The act has been referred to as a unitary act of systematic genocide, because it discriminated against an ethnic group in so far as to make certain the death of vast numbers of its population. The Act was signed by Andrew Jackson and it was strongly enforced under his administration and that of Martin Van Buren, which extended until 1841.
The Act was strongly supported by southern and northeastern populations, but was opposed by native tribes and the Whig Party. The Cherokee worked together to stop this relocation, but were unsuccessful; they were eventually forcibly removed by the United States government in a march to the west that later became known as the Trail of Tears.
- Click here for the entry.
The Indian Removal Act was signed into law on May 28, 1830, by United States President Andrew Jackson. The law authorized the president to negotiate with southern Native American tribes for their removal to federal territory west of the Mississippi River in exchange for white settlement of their ancestral lands. The act has been referred to as a unitary act of systematic genocide, because it discriminated against an ethnic group in so far as to make certain the death of vast numbers of its population. The Act was signed by Andrew Jackson and it was strongly enforced under his administration and that of Martin Van Buren, which extended until 1841.
The Act was strongly supported by southern and northeastern populations, but was opposed by native tribes and the Whig Party. The Cherokee worked together to stop this relocation, but were unsuccessful; they were eventually forcibly removed by the United States government in a march to the west that later became known as the Trail of Tears.
From Wikipedia: The Seminole Wars
- Click here for the entry.
There were three of them. Note that none were declared as wars by Congress. Spain claimed Florida when they began, by the end of the wars, Florida had been largely cleared of Native Americans.
1816–1819: The First Seminole War began with General Andrew Jackson's excursions into West Florida and East Florida against the Seminoles after the conclusion of the War of 1812. . . . Spain was unable to defend or control the territory, as several local uprisings and rebellions made clear. The Spanish Crown agreed to cede Florida to the United States per the Adams–OnÃs Treaty of 1819 . . .
According to the Treaty of Moultrie Creek of 1823, the Seminoles were required to leave northern Florida and were confined to a large reservation in the center of the Florida peninsula. The U.S. government enforced the treaty by building a series of forts and trading posts in the territory, mainly along the Gulf and Atlantic coasts.
1835–1842: The Second Seminole War was the result of the United States government attempting to force the Seminoles to leave Florida altogether and move to Indian Territory per the Indian Removal Act of 1830. . . . By the early 1840s, most of the Seminole population in Florida had been killed in battle, ravaged by starvation and disease, or relocated to Indian Territory.
1855–1858: The Third Seminole War was again the result of Seminoles responding to settlers and U.S. Army scouting parties encroaching on their lands, perhaps deliberately to provoke a violent response that would result in the removal of the last of the Seminoles from Florida. . . . by 1858, most of the remaining Seminoles, weary of war and facing starvation, agreed to be sent to Oklahoma in exchange for promises of safe passage and cash payments.
There were three of them. Note that none were declared as wars by Congress. Spain claimed Florida when they began, by the end of the wars, Florida had been largely cleared of Native Americans.
1816–1819: The First Seminole War began with General Andrew Jackson's excursions into West Florida and East Florida against the Seminoles after the conclusion of the War of 1812. . . . Spain was unable to defend or control the territory, as several local uprisings and rebellions made clear. The Spanish Crown agreed to cede Florida to the United States per the Adams–OnÃs Treaty of 1819 . . .
According to the Treaty of Moultrie Creek of 1823, the Seminoles were required to leave northern Florida and were confined to a large reservation in the center of the Florida peninsula. The U.S. government enforced the treaty by building a series of forts and trading posts in the territory, mainly along the Gulf and Atlantic coasts.
1835–1842: The Second Seminole War was the result of the United States government attempting to force the Seminoles to leave Florida altogether and move to Indian Territory per the Indian Removal Act of 1830. . . . By the early 1840s, most of the Seminole population in Florida had been killed in battle, ravaged by starvation and disease, or relocated to Indian Territory.
1855–1858: The Third Seminole War was again the result of Seminoles responding to settlers and U.S. Army scouting parties encroaching on their lands, perhaps deliberately to provoke a violent response that would result in the removal of the last of the Seminoles from Florida. . . . by 1858, most of the remaining Seminoles, weary of war and facing starvation, agreed to be sent to Oklahoma in exchange for promises of safe passage and cash payments.
The Removal of the Seminole Nation
I'll post a few items related to the background of McGirt v Oklahoma.
 |
McGirt v Oklahoma
Decided today at the Supreme Court:
- Click here for the ruling.
Summary from Oyez:
Facts of the case: Jimcy McGirt, a member of the Muscogee (Creek) Nation was convicted of sex crimes against a child by the state of Oklahoma within the historical Creek Nation boundaries. He argued that Oklahoma could not exercise jurisdiction over him because under the Indian Major Crimes Act, any crime involving a Native American victim or perpetrator, or occurring within recognized reservation boundaries, is subject to federal jurisdiction, not state jurisdiction.
Question: Can a state prosecute an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries?
For more info
- Ballotpedia.
- Oyez.
- Scotusblog.
- Wikipedia.
- Click here for the ruling.
Summary from Oyez:
Facts of the case: Jimcy McGirt, a member of the Muscogee (Creek) Nation was convicted of sex crimes against a child by the state of Oklahoma within the historical Creek Nation boundaries. He argued that Oklahoma could not exercise jurisdiction over him because under the Indian Major Crimes Act, any crime involving a Native American victim or perpetrator, or occurring within recognized reservation boundaries, is subject to federal jurisdiction, not state jurisdiction.
Question: Can a state prosecute an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries?
For more info
- Ballotpedia.
- Oyez.
- Scotusblog.
- Wikipedia.
Wednesday, July 8, 2020
What is the "ministerial exception?"
This is central to the decision linked to below.
I selected three sources that described it in different ways. It also contains history of its development.
From the Harvard Law Review
- Of Priests, Pupils, and Procedure: The Ministerial Exception as a Cause Of Action for On-Campus Student Ministries.
In 1972, the Fifth Circuit recognized a First Amendment right for religious ministries to select their own religious ministers and manage the employment relationship free from government regulation. This right was initially framed as an exemption from Title VII of the Civil Rights Act of 1964, which prevents employers from discriminating against employees on the basis of sex, religion, race, and a number of other criteria. This exception came to be recognized as the ministerial exception, and it has since expanded to protect the employment decisions of religious institutions from government interference in more than simply the Title VII context.
Over the next forty years, every federal court of appeals adopted this doctrine (as did many state supreme courts), and in 2012 the U.S. Supreme Court officially recognized the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. There, a teacher at a Lutheran school argued that the school had fired her because of her physical disability in violation of the Americans with Disabilities Act. But the Court held that her suit was barred by the ministerial exception, which it unanimously declared to be rooted in both the Free Exercise Clause and the Establishment Clause of the First Amendment. Since the Court’s decision in Hosanna-Tabor, lower courts have continued to grapple with the ministerial exception.
-----
From Wikipedia
- Click here for the link.
The ministerial exception, sometimes known as the "ecclesiastical exception," is a legal doctrine in the United States barring the application of anti-discrimination laws to religious institutions' employment relationships with its "ministers." As explained by the Supreme Court in the landmark case Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., the exception is drawn from the First Amendment to the United States Constitution, and seeks to both (1) safeguard religious groups' "freedom . . . to select their own ministers," a principle rooted in the Free Exercise Clause, and (2) prevent "government involvement in ecclesiastical decisions," a prohibition stemming from the Establishment Clause. When applied, the exception operates to give religious institutions an affirmative defense when sued for discrimination by employees who qualify as "ministers;"for example, female priests cannot sue the Catholic church to force their hiring. However, exactly which types of employees should qualify as a "ministers," and thus how broadly the exception should apply, is the subject of current litigation before the Supreme Court.
-----
From the First Amendment Encyclopedia.
- Click here for the entry.
The ministerial exception furthers the purposes of the First Amendment free exercise and establishment clauses by barring legal claims against church bodies by their employees who carry out religious functions.
It was first recognized by the U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. Employment Opportunity Division (2012).
I selected three sources that described it in different ways. It also contains history of its development.
From the Harvard Law Review
- Of Priests, Pupils, and Procedure: The Ministerial Exception as a Cause Of Action for On-Campus Student Ministries.
In 1972, the Fifth Circuit recognized a First Amendment right for religious ministries to select their own religious ministers and manage the employment relationship free from government regulation. This right was initially framed as an exemption from Title VII of the Civil Rights Act of 1964, which prevents employers from discriminating against employees on the basis of sex, religion, race, and a number of other criteria. This exception came to be recognized as the ministerial exception, and it has since expanded to protect the employment decisions of religious institutions from government interference in more than simply the Title VII context.
Over the next forty years, every federal court of appeals adopted this doctrine (as did many state supreme courts), and in 2012 the U.S. Supreme Court officially recognized the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. There, a teacher at a Lutheran school argued that the school had fired her because of her physical disability in violation of the Americans with Disabilities Act. But the Court held that her suit was barred by the ministerial exception, which it unanimously declared to be rooted in both the Free Exercise Clause and the Establishment Clause of the First Amendment. Since the Court’s decision in Hosanna-Tabor, lower courts have continued to grapple with the ministerial exception.
-----
From Wikipedia
- Click here for the link.
The ministerial exception, sometimes known as the "ecclesiastical exception," is a legal doctrine in the United States barring the application of anti-discrimination laws to religious institutions' employment relationships with its "ministers." As explained by the Supreme Court in the landmark case Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., the exception is drawn from the First Amendment to the United States Constitution, and seeks to both (1) safeguard religious groups' "freedom . . . to select their own ministers," a principle rooted in the Free Exercise Clause, and (2) prevent "government involvement in ecclesiastical decisions," a prohibition stemming from the Establishment Clause. When applied, the exception operates to give religious institutions an affirmative defense when sued for discrimination by employees who qualify as "ministers;"for example, female priests cannot sue the Catholic church to force their hiring. However, exactly which types of employees should qualify as a "ministers," and thus how broadly the exception should apply, is the subject of current litigation before the Supreme Court.
-----
From the First Amendment Encyclopedia.
- Click here for the entry.
The ministerial exception furthers the purposes of the First Amendment free exercise and establishment clauses by barring legal claims against church bodies by their employees who carry out religious functions.
It was first recognized by the U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. Employment Opportunity Division (2012).
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