Texas Tribune: Texas and Biden administration lawyers face off in court over new law making illegal border crossing a state crime

- Click here for the article.  

From Wikipedia: Golden Age of Piracy

Markets rest on the assumption that things that items that are demanded will actually make it from suppliers to their eventual destination. This entry covers an era when this didn't always happen. It helps explain the development of navies - specifically the British and American.

- Click here for it. 

The Golden Age of Piracy is a common designation for the period between the 1650s and the 1730s, when maritime piracy was a significant factor in the histories of the North Atlantic and Indian Oceans.

Histories of piracy often subdivide the Golden Age of Piracy into three periods:

The buccaneering period (approximately 1650 to 1680), characterized by Anglo-French seamen based in Jamaica and Tortuga attacking Spanish colonies, and shipping in the Caribbean and eastern Pacific.

The Pirate Round (1690s), associated with long-distance voyages from the Americas to rob Muslim and East India Company targets in the Indian Ocean and Red Sea.

The post-Spanish Succession period (1715 to 1726), when Anglo-American sailors and privateers left unemployed by the end of the War of the Spanish Succession turned en masse to piracy in the Caribbean, the Indian Ocean, the North American eastern seaboard, and the West African coast.

Narrower definitions of the Golden Age sometimes exclude the first or second periods, but most include at least some portion of the third. The modern conception of pirates as depicted in popular culture is derived largely, although not always accurately, from the Golden Age of Piracy.

Factors contributing to piracy during the Golden Age included the rise in quantities of valuable cargoes being shipped to Europe over vast ocean areas, reduced European navies in certain regions, the training and experience that many sailors had gained in European navies (particularly the British Royal Navy), and corrupt and ineffective government in European overseas colonies. Colonial powers at the time constantly fought with pirates and engaged in several notable battles and other related events.

The _______ Powers (fill in the blank)

- Delegated: the transfer of a specific authority by one of the three branches of government (executive, legislative, and judicial) to another branch or to an independent agency. The U.S. Congress, for example, has created government agencies to which it has delegated authority to promulgate and enforce regulations pursuant to law—such as the Securities and Exchange Commission (1934) and the Federal Election Commission (1974)—and it has delegated by statute (1954) to the Department of Commerce, a cabinet office within the executive branch, its authority under the Constitution to conduct the decennial census.


Enumerated: The enumerated powers (also called expressed powers, explicit powers or delegated powers) of the United States Congress are the powers granted to the federal government of the United States by the United States Constitution. Most of these powers are listed in Article I, Section 8. In summary, Congress may exercise the powers that the Constitution grants it, subject to the individual rights listed in the Bill of Rights. Moreover, the Constitution expresses various other limitations on Congress, such as the one expressed by the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."


Expressed: Expressed powers are those powers that the Constitution has specifically given to the federal government.

Implied: Implied powers, in the context of federalism, refer to powers Congress possesses that are not explicitly enumerated in the U.S. Constitution. Alexander Hamilton first articulated the concept of implied powers, which the U.S. Supreme Court later recognized in the 1819 case McCulloch v. Maryland.

Inherent: In United States law, inherent powers are the powers that a state officer or entity purports to hold under a general vesting of authority, even though they are neither enumerated nor implied. The theory of inherent powers of the President derives from the loosely worded statements in the Constitution that "the executive Power shall be vested in a President" and the president should "take care that the laws be faithfully executed" (defined in practice, rather than by constitutional or statutory law). Under this theory, first articulated in 1793 by Secretary of the Treasury Alexander Hamilton,[1] the authority of the president extends to all decisions and acts of the United States as a sovereign state that are not exclusively vested elsewhere.

. . . not specifically listed in the Constitution, but they grow out of the very existence of the national government. For example, the United States has the power to acquire territory by exploration and/or occupancy, primarily because most governments in general claim that right.


Prohibited: Prohibited powers are denied either to the national government, state governments, or both (Article I, Section 9.) For example, the national government cannot exercise its powers in such a way as to interfere with the states' abilities to perform their responsibilities. States cannot tax imports or exports, nor can they coin money or issue bills of credit.|

- - The U.S. Constitution: Article 1, Section 9.
- - The U.S. Constitution:  Article 1, Section 10.
- - THE TEXAS CONSTITUTION, Sec. 56, PROHIBITED LOCAL AND SPECIAL LAWS.

Reserved: "Reserved powers" refers to powers that are not specifically granted to the federal government by the Constitution. The Tenth Amendment gives these powers to the states.


Concurrent: powers of a federal state that are shared by both the federal government and each constituent political unit, such as a state or province. These powers may be exercised simultaneously within the same territory, in relation to the same body of citizens, and regarding the same subject-matter. Concurrent powers are contrasted with reserved powers (not possessed by the federal government) and with exclusive federal powers (forbidden to be possessed by the states, or requiring federal permission).

From KRGV.com: Texas AG: Board Can't Control Local Textbook Adoption AG: Board only has powers "specifically delegated by statute."

I'm hunting around for stories using which refer to the "delegated," "reserved," and "implied" - among the other types we went over this semester - and ran across this that mentions Texas Attorney General and his decision that existing state laws limits the State Board of Education's effort to restrict what textbooks local districts can use in the classroom.

2305 students especially should be prepped to answer questions using that terminology and what relative powers the national, state, and local governments have and why.

2306 students might want to have an understanding of the Attorney General's office and the basic structure of the SBOE.

Note use of the term "rulemaking" in the story and the conflict it contains between the legislature and the executive branch. The Texas Legislature is attempting to curtail the power of the SBOE, which seem to push back.

- Click here for the story.

The Texas attorney general said Friday that the Board of Education can't tell local school districts what textbooks to adopt for their classrooms, interpreting existing state law as limiting the often controversial board's authority.

Republican Ken Paxton stated in an opinion that the board has only those powers "specifically delegated by statute" and that it "may not substitute its judgment for the lawful exercise of those powers and duties by the trustees."

The board's 15 members sanction textbooks for use statewide in a process that has for years been marred by ideological fights over lessons on subjects including evolution, climate change and the influence of biblical figures such as Moses on America's Founding Fathers. Texas has 5.2 million public school students, a textbook market so large that edits made for the board can affect what's published in other states.

But, in 2011, the Legislature approved a law giving school districts the option of adopting classroom materials that haven't won board approval. Relatively few school districts have taken advantage, though the use of iPads and e-readers makes it easier for publishers to tailor books to individual buyers' needs.

Still, Republican board member Barbara Cargill sought clarification on where the 2011 law and others left the board's authority over school districts' textbook approval processes. She said the state board's approval process is done publicly and ensures that textbooks meet state curriculum standards. She said she was worried that local adoption of classroom materials could undermine that.

"I seek to identify the extent of the board's rulemaking authority to ensure that, at the local level, appropriate process and safeguards exist with regard to the adoption and use of instructional materials by a public school," she wrote when asking for the attorney general's opinion in June.

Copyright and the Amen Break

One of the delegated powers listed in the U.S. Constitution concerns copyrights and patents. The digital age, since it makes copying so easy (as if you did not know that already my dear students), has renewed attention to copyright issues. Some argue that that this attention has been overly-zealous and may well stifle the creative process. Artists tend to borrow heavily from one another.

In this spirit, I found this great video detailing the creation and use of the "amen break" which was a six second drum break in a song recorded in 1969 which has become a staple of hip-hop, rap and drum and bass songs, as well as commercials. You've heard the beat repeatedly. It's a neat story.

  

A District Court Judge Finds the Individual Mandate Constitutional

Here's huge -- and relevant -- news. A district court judge has ruled that the individual mandate in the recently passed health care law does fall under the authority of Congress under the Commerce Clause. Pay attention 2301s:

From Ezra Klein:

A district court judge has ruled the individual mandate is constitutional, reports N.C. Aizenman: "Other federal courts have already dismissed some challenges to the law on technical grounds - ruling, for instance, that the plaintiffs lacked standing. However, the decision issued Thursday by Judge George Caram Steeh of the Eastern District of Michigan is the first to reject a claim based on the merits, marking a notable victory for the Obama administration...Steeh found that 'far from 'inactivity,' by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health-care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars...onto other market participants.'"

- Here's the opinion...

...and a key quote from it:

“In assessing the scope of Congress’ authority under the Commerce Clause,” the court’s task “is a modest one.” The court need not itself determine whether the regulated activities, “taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding.”



There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.

- From the NYT.
- Here's a decision from a previous case where the law was dismissed on procedural grounds.

Now it will go on to higher level appelate courts further consideration. Pay attention 2302s!

Is the Minimum Wage a Violation of States Rights?

Joe Miller, the Alaska Tea Party candidate says yes and wants it repealed. It gives the national government too much power.

- Wikipedia: Minimum Wage.

Can Fashion Designs be Patented?

In both 2301 and 2302 we touched on Article I of the Constitution and the delegated power Congress has:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
This authorizes Congress to pass Patent Laws, which it first did in 1790 when it created the Patent Office. The power is based on the idea that allowing people monopoly control over their ideas and the products of those ideas encourages innovation. That this control is time-limited allows the idea to enter into the public domain and spur additional innovation. But not everything can be patented.

NPR reports on a controversy involving fashion designers and their efforts to obtain the right to patent their designs. Design has historically been considered a craft and not subject to patents. Designers wouldlike to have the ability to profit from their creations -- they are commonly, easily, and often copied.

Patent lawyers certainly would be interested in gaining the opportunity to ply their trade tracking down copycats. While listening to the story, it occurred to me that if designs were patented it would be crucial how the term "design" was defined. Imagine creating an ensemble off the cuff one morning and while walking in a public place you were informed that what you were wearing violated a designers patent rights. Could you argue that you had a right to wear what you wished and that this right superseded the designer's patent rights? There is no right to fashion in the Constitution -- you'd probably have to argue self-expression, but that involves a loose interpretation of the free speech clause.

This might not be a proper example, but limits on who could wear what are not novel in history.

Is There a Right to Racially Discriminate?

From the Washington Post: Can Private Clubs Segregate? If not, what allows government to intervene?

Two Supreme Court Decisions Regarding Sentencing

In one, Graham v. Florida, the court decided 6-3 that life sentences without the possibility of parole for juveniles convicted of crimes less than murder was cruel and unusual punishment which violated the eighth amendment.

In the other, United States v. Comstock, a 7-2 court stated the Congress had the authority to allow continued confinement of some sex offenders who had completed their sentences, even though this power is not an enumerated (or delegated) power granted to Congress in Article One. It was argued on the basis of the necessary and proper clause, though the dissent wondered necessary and proper to do what?