Obscene Incitement and Clear and Present Danger:
The Need For Anti-Street Harassment Laws
Should there be a law protecting women from street harassment? Many women believe so.
Street harassment falls under the limitations set by the Supreme Court on first ammendment freedom of speech including obscenities, incitement, and clear and present danger. These limits are spelled out by the Supreme Court as "lewd and obscene, the profane, the libelous, and the insulting or 'fighting words.'" (Supreme Court). As defined by the Supreme Court fighting words are, "by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Supreme Court). These limitations were set in cases such as Chaplinsky v. New Hampshire and Miller v. California to name a few.
Unfortunately, although shown to increase violence against women, street harassment is not taken seriously by law enforcement as noted in an article entitled, “Legal Analysis” written by an unnamed representative of the Hollaback! network. The article states, “...Laws already on the books that prohibit intimidation and harassment are rarely interpreted to address the harms of street harassment experienced by women.” (Hollaback!).
For this reason laws needs to be set in place to specifically address the issue of street harassment towards women. As with any law, predefined limiting principles would need to be set in order to prevent abuse. Street harassment should be defined as sexually explicit, demeaning, dehumanizing, and/or aggressive language directed at individuals including minors and adults who, in turn, feel threatened or intimidated and may be in danger of resulting violence physically and/or sexually.
http://www.ihollaback.org/resources/legal/legal-analysis/
http://www.freedomforum.org/packages/first/curricula/educationforfreedom/supportpages/l04-limitsfreedomspeech.htm
http://www.freedomforum.org/packages/first/fightingwords/casesummaries.htm#chaplinsky
Saturday, March 31, 2012
Friday, March 30, 2012
Texas Supreme Court Chief Justice Wallace Jefferson call for an appointed judiciary in Texas
Story in the Texas Tribune.
Among other things, elections don't guarantee qualified judges. Key quote:
A brief search of judicial candidates’ TV and web campaign videos brings up plenty of examples, like a spot by former state Rep. Rick Green during his 2010 bid for the Texas Supreme Court.
"Hey, friends. I have some earth-shattering news for you,” he says in the ad. “First of all, this campaign is now Chuck Norris approved. And secondly, we've got our money bomb today."
Green has a law degree but little legal experience. But thanks in part to Norris and some key endorsements from the then-budding Tea Party movement, Green made it to a GOP primary runoff against a candidate with judicial experience.
Does this kind of political wrangling lower the overall quality of the judicial system? Frank Cross, a professor at the University of Texas law and business schools, said it absolutely does.
"Because we have an elected judiciary, our judges are of lower quality,” Cross said. “But it doesn't seem to terribly bother anyone that much."
Among other things, elections don't guarantee qualified judges. Key quote:
A brief search of judicial candidates’ TV and web campaign videos brings up plenty of examples, like a spot by former state Rep. Rick Green during his 2010 bid for the Texas Supreme Court.
"Hey, friends. I have some earth-shattering news for you,” he says in the ad. “First of all, this campaign is now Chuck Norris approved. And secondly, we've got our money bomb today."
Green has a law degree but little legal experience. But thanks in part to Norris and some key endorsements from the then-budding Tea Party movement, Green made it to a GOP primary runoff against a candidate with judicial experience.
Does this kind of political wrangling lower the overall quality of the judicial system? Frank Cross, a professor at the University of Texas law and business schools, said it absolutely does.
"Because we have an elected judiciary, our judges are of lower quality,” Cross said. “But it doesn't seem to terribly bother anyone that much."
Will Republicans continue to lose the Latino vote?
Again from Politico, this time Republican lawmakers are concerned that strident language against illegal immigrants has weakened the party's affinity with the Latino population, but those position are popular with the Republican base. So how does it keep the base happy while reaching out to the fastest growing segment of the electorate?
While Republicans say they aren’t about to embrace “amnesty” for undocumented immigrants, the ideas being considered on Capitol Hill amount to a recognition that the party needs to appear more friendly to the country’s powerful voting bloc.
“You can’t win without doing well among Hispanic voters, and I don’t think it’s any secret that the primary has not been particularly helpful from the standpoint of the tone,” said Texas Sen. John Cornyn, who is leading GOP efforts to take back the Senate. “I think there is a sense on our side that we need to come forward with a responsible approach that if we don’t define ourselves what that approach is, other people are more than happy to take advantage of the void to try to define us.”
The short-term upside is obvious for Republicans: The Hispanic vote in 2012 looms large in swing states like Florida, New Mexico and Nevada, and the party has miserable approval ratings with Hispanics. The longer-term outlook is just as critical — Hispanics are a rapidly growing demographic group in the country and one of the youngest, and the GOP needs to sell the next generation of American voters on its policies.
But it also amounts to a risk: pushing measures to appeal to Latinos could split the party’s base that is steadfast on border security and enforcement.
While Republicans say they aren’t about to embrace “amnesty” for undocumented immigrants, the ideas being considered on Capitol Hill amount to a recognition that the party needs to appear more friendly to the country’s powerful voting bloc.
“You can’t win without doing well among Hispanic voters, and I don’t think it’s any secret that the primary has not been particularly helpful from the standpoint of the tone,” said Texas Sen. John Cornyn, who is leading GOP efforts to take back the Senate. “I think there is a sense on our side that we need to come forward with a responsible approach that if we don’t define ourselves what that approach is, other people are more than happy to take advantage of the void to try to define us.”
The short-term upside is obvious for Republicans: The Hispanic vote in 2012 looms large in swing states like Florida, New Mexico and Nevada, and the party has miserable approval ratings with Hispanics. The longer-term outlook is just as critical — Hispanics are a rapidly growing demographic group in the country and one of the youngest, and the GOP needs to sell the next generation of American voters on its policies.
But it also amounts to a risk: pushing measures to appeal to Latinos could split the party’s base that is steadfast on border security and enforcement.
Are Republicans shifting their position on gay marriage? If so, why?
Politico reports that House Republicans are downplaying gay marriage as a social issue in favor of others like religious liberty and defunding Planned Parenthood. They suggest that general shifts in attitudes about same sex relationships, increased awareness of gays and lesbians among them, and electoral opportunity are driving the change. In 2301 we've been discussing elections and the impact they have on changes in policy. We will be doing the same soon enough for public opinion. This story fits both topics:
It’s not like the GOP has become a bastion of progressiveness on gay rights, but there has been an evolution in the political approach — and an acknowledgment of a cultural shift in the country. Same-sex relationships are more prominent and accepted. There are more gay public figures — including politicians — and it’s likely that many Washington Republicans have gay friends and coworkers. Just as important — there’s also a libertarian streak of acceptance on people’s sexuality coursing through the House Republican Conference.
“In one decade, what’s shocking on TV is accepted as commonplace in the other,” said Rep. Jack Kingston (R-Ga.), a veteran of the culture wars of the 1990s. “It’s the same with sexual mores all over that if you look at campuses and universities, they have a lot of gay pride clubs and so there has been a deliberate and effective outreach to the younger generation about being more accepting of same-sex relationships.”
But there’s also a political strategy at work: The economy has displaced moral issues in today’s politics. Ask most House Republicans today if they have deep convictions about gay relationships, and it hardly registers.
It’s not like the GOP has become a bastion of progressiveness on gay rights, but there has been an evolution in the political approach — and an acknowledgment of a cultural shift in the country. Same-sex relationships are more prominent and accepted. There are more gay public figures — including politicians — and it’s likely that many Washington Republicans have gay friends and coworkers. Just as important — there’s also a libertarian streak of acceptance on people’s sexuality coursing through the House Republican Conference.
“In one decade, what’s shocking on TV is accepted as commonplace in the other,” said Rep. Jack Kingston (R-Ga.), a veteran of the culture wars of the 1990s. “It’s the same with sexual mores all over that if you look at campuses and universities, they have a lot of gay pride clubs and so there has been a deliberate and effective outreach to the younger generation about being more accepting of same-sex relationships.”
But there’s also a political strategy at work: The economy has displaced moral issues in today’s politics. Ask most House Republicans today if they have deep convictions about gay relationships, and it hardly registers.
From The Washington Post: Super PACs, donors turn sights on judicial branch
A major topic in both 2301 and 2302 is whether judicial elections compromise judicial independence by making judges subject to the preferences of donors. This story points out the problems unlimited donations in judicial campaigns has posed for the ability of the Florida court to be independent.
I want 2302s, especially, to read through this since we will discuss the problems posed by elections soon enough, but 2301s should look through this as well since it touches both on elections and interest groups. It's also worth considering what these large donations can do to the separated powers, especially on the state level. Large scale donors can use elections to influence who dominates each of the three supposedly separate branches. If successful, the branches can work in tandem and there may be no way for opponents to inhibit what they do.
But maybe I'm paranoid.
Here's a chunk of the story, which calls state judges sitting ducks:
Judicial elections have long drawn the interest of wealthy benefactors, business and labor groups, and trial lawyers, but watchdog groups say they are particularly troubled by a new trend: The universe of big donors has grown smaller and more concentrated.
In a 2010 study that examined 29 judicial races, the watchdog group Justice at Stake found that the top five spenders averaged $473,000 apiece, while all other donors averaged $850. In addition, loopholes in disclosure laws gave those big donors ways to spend money “in substantial secrecy,” the report found.
“Outside forces are becoming a bigger deal,” said Roy Schotland, a Georgetown University law professor and expert on judicial elections. “We’re seeing more takeover of the races from the outside.”
Schotland said state judicial races are increasingly becoming “floating auctions,” in which special-interest groups focus money and manpower in states where they can upend judges they don’t like. “The justices are like sitting ducks,” he said.
I want 2302s, especially, to read through this since we will discuss the problems posed by elections soon enough, but 2301s should look through this as well since it touches both on elections and interest groups. It's also worth considering what these large donations can do to the separated powers, especially on the state level. Large scale donors can use elections to influence who dominates each of the three supposedly separate branches. If successful, the branches can work in tandem and there may be no way for opponents to inhibit what they do.
But maybe I'm paranoid.
Here's a chunk of the story, which calls state judges sitting ducks:
Judicial elections have long drawn the interest of wealthy benefactors, business and labor groups, and trial lawyers, but watchdog groups say they are particularly troubled by a new trend: The universe of big donors has grown smaller and more concentrated.
In a 2010 study that examined 29 judicial races, the watchdog group Justice at Stake found that the top five spenders averaged $473,000 apiece, while all other donors averaged $850. In addition, loopholes in disclosure laws gave those big donors ways to spend money “in substantial secrecy,” the report found.
“Outside forces are becoming a bigger deal,” said Roy Schotland, a Georgetown University law professor and expert on judicial elections. “We’re seeing more takeover of the races from the outside.”
Schotland said state judicial races are increasingly becoming “floating auctions,” in which special-interest groups focus money and manpower in states where they can upend judges they don’t like. “The justices are like sitting ducks,” he said.
Thursday, March 29, 2012
How quickly will the Supreme Court decide the health care reform case?
Possibly by this time tomorrow - though we will not know until June.
A great inside look at the decision making process within the Supreme Court.
2302s take note.
A great inside look at the decision making process within the Supreme Court.
2302s take note.
Can atheists organize? Does their increased presence make it easier for the religious to organize?
An increasing number of Americans profess no religious belief, but there may be something intrinsic about atheism that makes organizing into effective groups problematic. Here is an argument that this limits their political effectiveness:
Evangelical Christians make up about one-quarter of the adult population, but they are the core of the Republican Party, and as Republican politicians know well, evangelicalism is strengthened by the continual re-creation of a strong group identity threatened by outside forces. And if the threatening others outside the group seem to be not just a disparate collection of people who are "not like us" but a coherent tribe themselves, able to act with purpose and malice, that threat becomes all the more powerful a motivator. So the more visible secularists become, the greater the opportunity to bind evangelical voters more closely to the GOP.
But it won't be easy for secular Americans to become better organized as a political force, even as they increase in number. The major impediment to that kind of organization is the fact that it is very difficult for secularists to conceive of themselves in tribal terms. Most tribes, whether of nations or ethnicities or sports fandom, can easily demarcate their membership—it's the people who look like us, or talk like us, or dress like us. Tribes organized around religious belief have rituals, sacred texts, and physical spaces that all serve to bind the participants together. Atheism has none of these things—most of the time it's an individual choice, made and kept alone.
Evangelical Christians make up about one-quarter of the adult population, but they are the core of the Republican Party, and as Republican politicians know well, evangelicalism is strengthened by the continual re-creation of a strong group identity threatened by outside forces. And if the threatening others outside the group seem to be not just a disparate collection of people who are "not like us" but a coherent tribe themselves, able to act with purpose and malice, that threat becomes all the more powerful a motivator. So the more visible secularists become, the greater the opportunity to bind evangelical voters more closely to the GOP.
But it won't be easy for secular Americans to become better organized as a political force, even as they increase in number. The major impediment to that kind of organization is the fact that it is very difficult for secularists to conceive of themselves in tribal terms. Most tribes, whether of nations or ethnicities or sports fandom, can easily demarcate their membership—it's the people who look like us, or talk like us, or dress like us. Tribes organized around religious belief have rituals, sacred texts, and physical spaces that all serve to bind the participants together. Atheism has none of these things—most of the time it's an individual choice, made and kept alone.
The Young v The Old
And as usual, the old are winning. Since we are discussing voter turnout this week in 2301- and I like to emphasize the consequences of disparate voter turnout between the old and the young - these stories highlighting the plight of the young are worth considering:
The War Against Youth:
Twenty-five years ago young Americans had a chance.
In 1984, American breadwinners who were sixty-five and over made ten times as much as those under thirty-five. The year Obama took office, older Americans made almost forty-seven times as much as the younger generation.
This bleeding up of the national wealth is no accounting glitch, no anomalous negative bounce from the recent unemployment and mortgage crises, but rather the predictable outcome of thirty years of economic and social policy that has been rigged to serve the comfort and largesse of the old at the expense of the young.
Nothing for You, Sonny:
I suspect the American political system is too slow to really change its priorities and redirect its focus on my generation, but there is always time to refocus on the next one. We now know that the first two years of life are the most consequential for child's development. I would consider reduced Medicare spending now coupled with an increase in efforts to ensure adequate early childhood nutrition to be a successful policy trade-off.
Or we can just make the Ryan Budget law and protect the baby boomers with a firewall to preserves their benefits.
The question will be: how long can an arrangement like that last before the side which knows it is getting the raw deal protests it?
The War Against Youth:
Twenty-five years ago young Americans had a chance.
In 1984, American breadwinners who were sixty-five and over made ten times as much as those under thirty-five. The year Obama took office, older Americans made almost forty-seven times as much as the younger generation.
This bleeding up of the national wealth is no accounting glitch, no anomalous negative bounce from the recent unemployment and mortgage crises, but rather the predictable outcome of thirty years of economic and social policy that has been rigged to serve the comfort and largesse of the old at the expense of the young.
Nothing for You, Sonny:
I suspect the American political system is too slow to really change its priorities and redirect its focus on my generation, but there is always time to refocus on the next one. We now know that the first two years of life are the most consequential for child's development. I would consider reduced Medicare spending now coupled with an increase in efforts to ensure adequate early childhood nutrition to be a successful policy trade-off.
Or we can just make the Ryan Budget law and protect the baby boomers with a firewall to preserves their benefits.
The question will be: how long can an arrangement like that last before the side which knows it is getting the raw deal protests it?
Conservatives v Business
Apparently business interests do not always line up with conservative goals.
From the NYT, a report that some government programs favored by business groups may be terminated or delayed by conservatives in the House:
Business groups that worked hard to install a Republican majority in the House equated Republican control with a business-friendly environment. But the majority is first and foremost a conservative political force, and on key issues, its ideology is not always aligned with commercial interests that helped finance election victories.
“Free market is not always the same as pro-business,” said Barney Keller, spokesman for the conservative political action committee Club for Growth.
There could be real-world consequences to the conservative rebellion. The 90-day extension of the highway trust fund that House Republican leaders say they will pass this week in lieu of a broad highway bill would keep existing projects moving for now. But business groups say few new government-funded infrastructure projects can get under way without longer-range certainty about federal backing.
From the NYT, a report that some government programs favored by business groups may be terminated or delayed by conservatives in the House:
Business groups that worked hard to install a Republican majority in the House equated Republican control with a business-friendly environment. But the majority is first and foremost a conservative political force, and on key issues, its ideology is not always aligned with commercial interests that helped finance election victories.
“Free market is not always the same as pro-business,” said Barney Keller, spokesman for the conservative political action committee Club for Growth.
There could be real-world consequences to the conservative rebellion. The 90-day extension of the highway trust fund that House Republican leaders say they will pass this week in lieu of a broad highway bill would keep existing projects moving for now. But business groups say few new government-funded infrastructure projects can get under way without longer-range certainty about federal backing.
Spinning Trayvon
Media outlets seem to be competing with each other to offer portrayals of Trayvon Williams, almost certainly to influence attitudes towards him. Was he an innocent kid or a thug? 2302 8am students discussed the various pictures used to provide some indication of what types of person he was - which might help people infer whether he was the victim or aggressor in the events leading to his death a month ago.
This is worth following so expect random posts on the subject. 2301s will soon start looking at public opinion and the factors which lead people to form the opinions they do - and how these are subject to manipulation, or confirmation, based on what news sources they choose to listen to.
Meanwhile of course, truth seems to take a back seat.
Here's the latest: Where are the injuries from the fight?
This is worth following so expect random posts on the subject. 2301s will soon start looking at public opinion and the factors which lead people to form the opinions they do - and how these are subject to manipulation, or confirmation, based on what news sources they choose to listen to.
Meanwhile of course, truth seems to take a back seat.
Here's the latest: Where are the injuries from the fight?
The House considers a variety of budget proposals
And most have been voted down.
Ezra Klein discusses attempts to resurrect the Simpson - Bowles debt reduction plan and why it was doomed to fail:
On Wednesday, Reps. Jim Cooper and Steve LaTourette managed to put Simpson-Bowles to a vote before the House of Representatives. It didn't just fail. It got crushed. The final tally was 382-38. Twenty-two of the supporters were Democrats, while 16 were Republicans. But overall, the rejection was overwhelming, and overwhelmingly bipartisan.
This was, of course, what the White House always complained would happen if they had listened to the pundits and brought Simpson-Bowles to a vote. Republicans would reject it because it included $2 trillion in new taxes and $800 billion in defense cuts. Democrats would reject it because they weren't going to vote for a doomed proposal that included deep Medicare and Social Security cuts in addition to a large tax increase just to show how much they cared about deficits. Perhaps, with presidential leadership, the vote would have been less lopsided.
But Wednesday's vote — which considered a version of SImpson-Bowles with somewhat less in tax increases -- is at least suggestive evidence that the White House was right and the proposal would never have passed because, in the end, the problem with Simpson-Bowles wasn't that the president didn't say enough nice things about it, but that members of Congress didn't want to vote for it.
The Hill reports that the House will likely pass - on a party line vote - Paul Ryan's budget proposal a day after unanimously voting down a version based on the president's proposal.
Ezra Klein discusses attempts to resurrect the Simpson - Bowles debt reduction plan and why it was doomed to fail:
On Wednesday, Reps. Jim Cooper and Steve LaTourette managed to put Simpson-Bowles to a vote before the House of Representatives. It didn't just fail. It got crushed. The final tally was 382-38. Twenty-two of the supporters were Democrats, while 16 were Republicans. But overall, the rejection was overwhelming, and overwhelmingly bipartisan.
This was, of course, what the White House always complained would happen if they had listened to the pundits and brought Simpson-Bowles to a vote. Republicans would reject it because it included $2 trillion in new taxes and $800 billion in defense cuts. Democrats would reject it because they weren't going to vote for a doomed proposal that included deep Medicare and Social Security cuts in addition to a large tax increase just to show how much they cared about deficits. Perhaps, with presidential leadership, the vote would have been less lopsided.
But Wednesday's vote — which considered a version of SImpson-Bowles with somewhat less in tax increases -- is at least suggestive evidence that the White House was right and the proposal would never have passed because, in the end, the problem with Simpson-Bowles wasn't that the president didn't say enough nice things about it, but that members of Congress didn't want to vote for it.
The Hill reports that the House will likely pass - on a party line vote - Paul Ryan's budget proposal a day after unanimously voting down a version based on the president's proposal.
Reactions to the Day Three Health Care Arguments
Again, as compiled by Andrew Sullivan.
Good take on limiting principles from Akhil Reed Amar - Yale Constitutional Law prof:
The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.
Commentators have noted that the tone in the Supreme Court is increasingly hostile towards Congress, suggesting that they are prepared to take an activist and aggressive stance towards their view of legislative power and not defer to the political branches.
Good take on limiting principles from Akhil Reed Amar - Yale Constitutional Law prof:
The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.
Commentators have noted that the tone in the Supreme Court is increasingly hostile towards Congress, suggesting that they are prepared to take an activist and aggressive stance towards their view of legislative power and not defer to the political branches.
Wednesday, March 28, 2012
Reactions to the Day Two Health Care Arguments
As complied by Andrew Sullivan.
I want to highlight the following comment since it touches on the principle issue brought forward in the argument: what is the limiting principle that guarantees that mandates do not go further than the individual mandate?
“Limiting principle” is a phrase that came up a lot in the Supreme Court Tuesday morning - 15 times, according to the transcript. It’s a legal concept you’ll probably hear a lot about in this afternoon’s analysis.
When courts review a new application of Congress’s constitutional authority, they historically wanted to see the government articulate a clear limit to those powers - they look for, in legal jargon, a “limiting principle.”
“If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive,” writes SCOTUSBlog’s Lyle Denniston. “ But if he does not, the mandate is gone.”
I want to highlight the following comment since it touches on the principle issue brought forward in the argument: what is the limiting principle that guarantees that mandates do not go further than the individual mandate?
“Limiting principle” is a phrase that came up a lot in the Supreme Court Tuesday morning - 15 times, according to the transcript. It’s a legal concept you’ll probably hear a lot about in this afternoon’s analysis.
When courts review a new application of Congress’s constitutional authority, they historically wanted to see the government articulate a clear limit to those powers - they look for, in legal jargon, a “limiting principle.”
“If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive,” writes SCOTUSBlog’s Lyle Denniston. “ But if he does not, the mandate is gone.”
Tuesday, March 27, 2012
About those other rights
Apparently other people have been thinking about the question I asked 2301s earlier this semester:
Jefferson says that we are endowed with “certain” rights, and that life, liberty, and the pursuit of happiness are “among these.” He does not claim to offer an exhaustive list. Indeed he draws attention to the possibility that other “unalienable” rights might be added to it. And he gives us that potent phrase “the pursuit of happiness.” We are to seek our well-being as we define our well-being and determine for ourselves the means by which it might be achieved.
Jefferson says that we are endowed with “certain” rights, and that life, liberty, and the pursuit of happiness are “among these.” He does not claim to offer an exhaustive list. Indeed he draws attention to the possibility that other “unalienable” rights might be added to it. And he gives us that potent phrase “the pursuit of happiness.” We are to seek our well-being as we define our well-being and determine for ourselves the means by which it might be achieved.
A potential gender discrimination issue?
Should, or can, street harassment of women be addressed by law? Is cat calling an act of free speech?
Driving a wedge between gays and blacks
Andrew Sullivan points to a report highlighting a strategy opponents to gay marriage initiatives are developing. These can have ramifications beyond this one issue. The two groups tend to be part of the Democratic coalition. Animosity between the two could cause one to bolt the party. While they may not necessary vote Republican, weakened allegiance to the Democrats would advantage Republicans.
The report also points out ways to drive a wedge between Latinos and the Democratic Party. Other posts will focus on Republican efforts to appeal to this group - and the various difficulties it has in doing so.
The report also points out ways to drive a wedge between Latinos and the Democratic Party. Other posts will focus on Republican efforts to appeal to this group - and the various difficulties it has in doing so.
Have renegades taken over the Republican Party?
Thomas Edsall - writing in the NYT - thinks so. Historically, Republican Party voters have been - in his words - compliant to the needs of the electorate, but no longer seems to be the case. The recent election in South Carolina, which generally votes for the eventual nominee, went with Newt Gingrich this time. He analyzes changes within the party, as well as the electoral system, that has led to this change.
The typical Republican primary voter is more white and evangelical than it has been in the past.
The rise of evangelicals might be the most significant change:
In an analysis of the contests so far, the Faith and Freedom Coalition found that evangelicals are now a majority, 50.53 percent, of all Republican presidential primary voters. The ascendance of the religious right has produced “the highest percentage recorded in a presidential nominating process, 4.29 million votes out of 8.49 million cast,” according to the coalition.
The typical Republican primary voter is more white and evangelical than it has been in the past.
The rise of evangelicals might be the most significant change:
In an analysis of the contests so far, the Faith and Freedom Coalition found that evangelicals are now a majority, 50.53 percent, of all Republican presidential primary voters. The ascendance of the religious right has produced “the highest percentage recorded in a presidential nominating process, 4.29 million votes out of 8.49 million cast,” according to the coalition.
Attention 2301s
Since 2301 - 16 week students are starting to look at elections and political parties (two topics that overlap considerably) I'll start posting a variety of stories about the recent primary elections and the nature of the electorate in each party. Plenty of issues regarding campaigning - notable the SuperPacs - are worth discussing also. These have taken a back seat to other issues, but that will change through the end of the semester.
Which is coming up pretty soon.
Which is coming up pretty soon.
Round Two: Health Care Reform Case
ScotusBlog - no surprise - says the decision about whether the individual mandate is constitutional is up to Anthony Kennedy, the designated swing voter on the court.
From Tom Goldstein:
Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.
Story in NYT here.
From Tom Goldstein:
Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.
Story in NYT here.
Health care argument links from Scotusblog
Here you can find a full list of documents - from Scotusblog - related to the health care hearings.
From Wonkbook: Absolutely everything you need to know about health reform’s Supreme Court debut
This is a day late, but this contains a succinct outline of the arguments being made each day before the court and the players in the controversy.
Monday, March 26, 2012
Some random items from Congress
For 2302 - 8 week, as you continue looking at the legislature, some tidbits to apply to your readings.
- Insider trading bill passes Congress and goes to President Obama for a signature. The NYT argues that passage was driven by Congress' low approval ratings - and possible spurred by the upcoming election:
Thousands of federal agency officials, including many at the White House, will be subject to similar reporting requirements.
- The Hill reports on the relationship between House Speaker John Boehner and the Republican members of the Appropriations Committee. Some things to think about as you apply this story to this week's notes: How is the Speaker managing his conference - how effective a party leader is he? What leverage do members of the Appropriations committee have over others in Congress? The story points out that there strength has diminished since rules against the use of earmarks have been put in place. They have fewer goodies to give out.
- Republican leaders are reluctant to support a rank and file effort to vote for a resolution calling for the removal of Eric Holder. Party leaders see potential for a backlash. The rank and file - especially the Tea Party Caucus - does not care. Leaders are not sure if the measure would really pass, but if they do not call it up for a vote, their credibility as party leaders could be questioned.
- Pink slime has taken over the latest news cycle. House Democrats want the USDA to prohibit the use of the product in America's schools.
- The House will soon vote on Paul Ryan's budget plan, which will be a test of how cohesive the Republic Conference is at the moment. Some Republican say it does not go far enough in cutting spending; Speaker Boehner has predicted it will pass the House.
- The highway bill still lags in the House, House Democrats plan to introduce the Senate highway bill in the chamber soon.
- Insider trading bill passes Congress and goes to President Obama for a signature. The NYT argues that passage was driven by Congress' low approval ratings - and possible spurred by the upcoming election:
The bill prohibits members of Congress from trading stocks and other
securities on the basis of confidential information they receive as
lawmakers. It makes clear that the insider trading ban in federal law
applies to members of Congress and their aides and to officials in the
executive and judicial branches of the federal government.
In addition, the bill requires lawmakers to disclose the purchase or
sale of stocks, bonds, commodities futures and other securities within
45 days of transactions, rather than once a year as they now do. The
information will be posted on the Web.
Thousands of federal agency officials, including many at the White House, will be subject to similar reporting requirements.
- The Hill reports on the relationship between House Speaker John Boehner and the Republican members of the Appropriations Committee. Some things to think about as you apply this story to this week's notes: How is the Speaker managing his conference - how effective a party leader is he? What leverage do members of the Appropriations committee have over others in Congress? The story points out that there strength has diminished since rules against the use of earmarks have been put in place. They have fewer goodies to give out.
- Republican leaders are reluctant to support a rank and file effort to vote for a resolution calling for the removal of Eric Holder. Party leaders see potential for a backlash. The rank and file - especially the Tea Party Caucus - does not care. Leaders are not sure if the measure would really pass, but if they do not call it up for a vote, their credibility as party leaders could be questioned.
- Pink slime has taken over the latest news cycle. House Democrats want the USDA to prohibit the use of the product in America's schools.
- The House will soon vote on Paul Ryan's budget plan, which will be a test of how cohesive the Republic Conference is at the moment. Some Republican say it does not go far enough in cutting spending; Speaker Boehner has predicted it will pass the House.
- The highway bill still lags in the House, House Democrats plan to introduce the Senate highway bill in the chamber soon.
Round One: Health Care Reform Case
Commentators tell us that the Justices seem inclined to dismiss arguments that an 1867 law against ruling on cases involving taxes applies to the health care law.
From the NYT:
. . . the justices considered the Anti-Injunction Act, which says that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” In other words, people who object to taxes must pay first and litigate later.
That is so, said Justice Stephen G. Breyer, because “taxes are, for better or worse, the life’s blood of the government.”
The first penalties for violating the health care law’s individual mandate do not kick in until 2014, and they must be paid on federal tax returns in April 2015. That means, as the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled last year, that courts are for now powerless to decide the law’s constitutionality.
The Obama administration pressed this argument in trial courts but abandoned it on appeal. The challengers to the law have always said the 1867 law poses no obstacle to immediate review.
From the NYT:
. . . the justices considered the Anti-Injunction Act, which says that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” In other words, people who object to taxes must pay first and litigate later.
That is so, said Justice Stephen G. Breyer, because “taxes are, for better or worse, the life’s blood of the government.”
The first penalties for violating the health care law’s individual mandate do not kick in until 2014, and they must be paid on federal tax returns in April 2015. That means, as the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled last year, that courts are for now powerless to decide the law’s constitutionality.
The Obama administration pressed this argument in trial courts but abandoned it on appeal. The challengers to the law have always said the 1867 law poses no obstacle to immediate review.
A History of ALEC
I stumbled across this and thought I'd share since ALEC (the American Legislative Exchange Council) has been in the news due to its role in passing Stand Your Ground laws across the nation. This was a small example of the many laws the group has helped develop and promote. Read this in order to understand where many of the ideas that lead to legislation - if not the actual legislation itself - originates.
About this week 3/26 - 3/30
Here's what's up for each class:
GOVT 2301 16 week: Elections
GOVT 2302 16 week: The Judiciary - Definition and Historical Development
GOVT 2301 8 week mini: Federalist #10 and the Republic; Federalist #51 and the Separation of Powers
GOVT 2302 8 week mini: The Evolution of the Legislature and Contemporary Issues (Budgeting)
Expect posts to highlight current events which illustrate material on these subjects.
GOVT 2301 16 week: Elections
GOVT 2302 16 week: The Judiciary - Definition and Historical Development
GOVT 2301 8 week mini: Federalist #10 and the Republic; Federalist #51 and the Separation of Powers
GOVT 2302 8 week mini: The Evolution of the Legislature and Contemporary Issues (Budgeting)
Expect posts to highlight current events which illustrate material on these subjects.
Sunday, March 25, 2012
10 - Written Assignment GOVT 2301 Spring Semester
Since I didn't ask a specific question last week about civil rights - and since the Supreme Court ruled on what may turn out to be a major gender discrimination case - I want you to address a question regarding Coleman v. Maryland Court of Appeals.
I posted on this case below and we discussed it briefly in class since the court used the doctrine of state sovereign immunity to toss out a laws suit against a state (a concept we also covered in federalism). The law in question, the Family and Medical Leave Act was justified, when it was passed, as a way to deal with gender discrimination in family medical leave, but this case - if I understand it correctly - applied that logic to personal leave. The majority on the court did not accept the idea that gender discrimination existed in the administration of sick leave.
I want you to read through the three opinions issued in the case - the majority, concurrence, and dissent - and outline the disagreements between them. Once you do, comment on the nature of gender discrimination as a consequence of the decision.
I posted on this case below and we discussed it briefly in class since the court used the doctrine of state sovereign immunity to toss out a laws suit against a state (a concept we also covered in federalism). The law in question, the Family and Medical Leave Act was justified, when it was passed, as a way to deal with gender discrimination in family medical leave, but this case - if I understand it correctly - applied that logic to personal leave. The majority on the court did not accept the idea that gender discrimination existed in the administration of sick leave.
I want you to read through the three opinions issued in the case - the majority, concurrence, and dissent - and outline the disagreements between them. Once you do, comment on the nature of gender discrimination as a consequence of the decision.
10 - Written Assignment GOVT 2302 Spring Semester
Obviously since health care reform is set to be argued before the Supreme Court tomorrow and the next two days, it's fitting that this week's written question focus on that fact. I want to frame this question in a way that focuses attention on the justices who will be hearing and deciding the case and gets you to think about how each of them approaches their job.
The question is: Based on what we know about the justices on the Supreme Court, how are they likely to rule on the major question the court will face, whether the individual mandate is constitutional?
The purpose of this question is to get you familiar with the different ways that members of the court (1)approach interpreting the Constitution and (2) view their responsibility to check the power of Congress. Very simply put - do they read the text narrowly or broadly, and do they see themselves as actively bound to apply that meaning or do they give Congress the general population leeway to make decisions without their mingling?
Instead of looking at each member - which would take some time - you may wish to focus on a couple. It would be wise to try to get a general feel for the nature of the opinions that exist on the current court. As we will see as we proceed in our coverage of the courts, who is on the courts matters greatly.
The question is: Based on what we know about the justices on the Supreme Court, how are they likely to rule on the major question the court will face, whether the individual mandate is constitutional?
The purpose of this question is to get you familiar with the different ways that members of the court (1)approach interpreting the Constitution and (2) view their responsibility to check the power of Congress. Very simply put - do they read the text narrowly or broadly, and do they see themselves as actively bound to apply that meaning or do they give Congress the general population leeway to make decisions without their mingling?
Instead of looking at each member - which would take some time - you may wish to focus on a couple. It would be wise to try to get a general feel for the nature of the opinions that exist on the current court. As we will see as we proceed in our coverage of the courts, who is on the courts matters greatly.
Saturday, March 24, 2012
Former Miami Chief of Police opposes stand your ground laws
From his NYT editorial:
Trying to control shootings by members of a well-trained and disciplined police department is a daunting enough task. Laws like “stand your ground” give citizens unfettered power and discretion with no accountability. It is a recipe for disaster.
At the time the Florida law was working its way through the Legislature, proponents argued that a homeowner should have the absolute right to defend himself and his home against an intruder and should not have to worry about the legal consequences if he killed someone. Proponents also maintained that there should be no judicial review of such a shooting.
But I pointed out at the time that even a police officer is held to account for every single bullet he or she discharges, so why should a private citizen be given more rights when it came to using deadly physical force? I also asked the bill’s sponsor, State Representative Dennis K. Baxley, to point to any case in Florida where a homeowner had been indicted or arrested as a result of “defending his castle.” He could not come up with a single one.
. . . Until 2005, in all 50 states, the law on the use of force for civilians was pretty simple. If you found yourself in a situation where you felt threatened but could safely retreat, you had the duty to do so. (A police officer does not have the duty to retreat; that is the distinction between a sworn police officer and the average citizen regarding use of force.)
Police officers are trained to de-escalate highly charged encounters with aggressive people, using deadly force as a last resort. Citizens, on the other hand, may act from emotion and perceived threats. But “stand your ground” gives citizens the right to use force in public if they feel threatened. As the law emphatically states, a citizen has “no duty to retreat and has the right to stand his or her ground.”
During one debate, one of the law’s proponents suggested that if a citizen felt threatened in a public space, he should not have to retreat and should be able to meet force with force. I pointed out that citizens feel threatened all the time, whether it’s from the approach of an aggressive panhandler or squeegee pest or even just walking down a poorly lighted street at night. In tightly congested urban areas, public encounters can be threatening; a look, a physical bump, a leer, someone you think may be following you. This is part of urban life. You learn to navigate threatening settings without resorting to force. Retreating is always the best option.
As Florida police chiefs predicted in 2005, the law has been used to justify killings ranging from drug dealers’ turf battles to road rage incidents. Homicides categorized as justifiable have nearly tripled since the law went into effect.
Trying to control shootings by members of a well-trained and disciplined police department is a daunting enough task. Laws like “stand your ground” give citizens unfettered power and discretion with no accountability. It is a recipe for disaster.
At the time the Florida law was working its way through the Legislature, proponents argued that a homeowner should have the absolute right to defend himself and his home against an intruder and should not have to worry about the legal consequences if he killed someone. Proponents also maintained that there should be no judicial review of such a shooting.
But I pointed out at the time that even a police officer is held to account for every single bullet he or she discharges, so why should a private citizen be given more rights when it came to using deadly physical force? I also asked the bill’s sponsor, State Representative Dennis K. Baxley, to point to any case in Florida where a homeowner had been indicted or arrested as a result of “defending his castle.” He could not come up with a single one.
. . . Until 2005, in all 50 states, the law on the use of force for civilians was pretty simple. If you found yourself in a situation where you felt threatened but could safely retreat, you had the duty to do so. (A police officer does not have the duty to retreat; that is the distinction between a sworn police officer and the average citizen regarding use of force.)
Police officers are trained to de-escalate highly charged encounters with aggressive people, using deadly force as a last resort. Citizens, on the other hand, may act from emotion and perceived threats. But “stand your ground” gives citizens the right to use force in public if they feel threatened. As the law emphatically states, a citizen has “no duty to retreat and has the right to stand his or her ground.”
During one debate, one of the law’s proponents suggested that if a citizen felt threatened in a public space, he should not have to retreat and should be able to meet force with force. I pointed out that citizens feel threatened all the time, whether it’s from the approach of an aggressive panhandler or squeegee pest or even just walking down a poorly lighted street at night. In tightly congested urban areas, public encounters can be threatening; a look, a physical bump, a leer, someone you think may be following you. This is part of urban life. You learn to navigate threatening settings without resorting to force. Retreating is always the best option.
As Florida police chiefs predicted in 2005, the law has been used to justify killings ranging from drug dealers’ turf battles to road rage incidents. Homicides categorized as justifiable have nearly tripled since the law went into effect.
Can a Facebook post be used as probable cause?
Apparently one has been already. It involved methods for dowloading child pornography.
Commentary from Eugene Volokh here.
Commentary from Eugene Volokh here.
Some random links to sites related to water policy in the state
- The Texas Water Planning Process.
- Llano Estacado Regional Water Planning Group.
- TWDP: Regional Water Planning.
- NYT: Water Policy in Legislature Rode on One Word.
- Water News Blog.
- Save Texas Water.
- Water For Texas: Summary of the 2011 Regional Water Plans.
- Liquid Assets.
- HB 1730.
- SB 332: FRASER FILES WATER RIGHTS MEASURE.
- History and Evolution of the Rule of Capture.
- Gulf Coast Water Conservation Symposium 2012.
- August 2001: Texas Water Policy Update.
- Putting the Public in Public Involvement.
- Senate Select Committee on Water Policy.
- Llano Estacado Regional Water Planning Group.
- TWDP: Regional Water Planning.
- NYT: Water Policy in Legislature Rode on One Word.
- Water News Blog.
- Save Texas Water.
- Water For Texas: Summary of the 2011 Regional Water Plans.
- Liquid Assets.
- HB 1730.
- SB 332: FRASER FILES WATER RIGHTS MEASURE.
- History and Evolution of the Rule of Capture.
- Gulf Coast Water Conservation Symposium 2012.
- August 2001: Texas Water Policy Update.
- Putting the Public in Public Involvement.
- Senate Select Committee on Water Policy.
Friday, March 23, 2012
Poll suggests Republican voters support most government spending
John Sides reports on a poll which repeats info mentioned elsewhere from other sources. Most people support the vast majority of the specific things that government does (while still saying they want to cut government overall). This includes Republican primary voters - which would constitute the most conservative members of the party. The following chart shows that over 50% of primary voters support cuts in only four relative negligible areas of spending: unemployment benefits, housing, the environment and foreign aid. Judging from these figures, these voters would not approve of the bulk of the proposals made in Paul Ryan's recent budget.
Texas committee hearing held on water policy
From the HC, more on an ongoing topic in this class:
Last year's record drought was like an alarm sounding, lawmakers said Thursday, and Texans must now decide to respond by investing in the state's future water supplies.
"If the people of Texas don't want to stand up and provide infrastructure we need for our future, it isn't going to happen," House Natural Resources Chairman Allan Ritter, R-Nederland, said during a hearing of his committee. The group is examining the impact of the Texas drought, evaluating how the state's existing water supplies can meet demand and looking at funding the state water plan.
The Legislature approved a $53 billion water plan 15 years ago but has not found a way to finance it.
Last year's record drought was like an alarm sounding, lawmakers said Thursday, and Texans must now decide to respond by investing in the state's future water supplies.
"If the people of Texas don't want to stand up and provide infrastructure we need for our future, it isn't going to happen," House Natural Resources Chairman Allan Ritter, R-Nederland, said during a hearing of his committee. The group is examining the impact of the Texas drought, evaluating how the state's existing water supplies can meet demand and looking at funding the state water plan.
The Legislature approved a $53 billion water plan 15 years ago but has not found a way to finance it.
Two more cases regarding religious freedom and whether it ought to be balanced against compelling societal interests
1 - This is in Canada so maybe it doesn't count, but regardless - A high school principal allowed Muslim students to pray in the lunch room before he realized that the students would apply rules mandating that the girls sit behind the boys, among other things. Should the freedom to worship according to the dictates of conscience take a back seat to a demand that we not allow discrimination according to gender?
2 - An orthodox rabbi has been jailed for refusing to testify before a federal grand jury against a fellow Jew. He says that his religious beliefs include (mesira) not informing on members of his own faith. Eugene Volock comments on the claim.
2 - An orthodox rabbi has been jailed for refusing to testify before a federal grand jury against a fellow Jew. He says that his religious beliefs include (mesira) not informing on members of his own faith. Eugene Volock comments on the claim.
FAA may rethink rule limiting use of digital reading devices - but not smartphones - on airplanes
Story in the NYT. The tests necessary to prove these devices cannot harm a flight are quite involved though, so the change will not happen soon:
Abby Lunardini, vice president of corporate communications at Virgin America, explained that the current guidelines require that an airline must test each version of a single device before it can be approved by the F.A.A. For example, if the airline wanted to get approval for the iPad, it would have to test the first iPad, iPad 2 and the new iPad, each on a separate flight, with no passengers on the plane.
It would have to do the same for every version of the Kindle. It would have to do it for every different model of plane in its fleet. And American, JetBlue, United, Air Wisconsin, etc., would have to do the same thing. (No wonder the F.A.A. is keeping smartphones off the table since there are easily several hundred different models on the market.)
Ms. Lunardini added that Virgin America would like to perform these tests, but the current guidelines make it “prohibitively expensive, especially for an airline with a relatively small fleet that is always in the air on commercial flights like ours.”
- Wikipedia: Federal Aviation Administration.
Abby Lunardini, vice president of corporate communications at Virgin America, explained that the current guidelines require that an airline must test each version of a single device before it can be approved by the F.A.A. For example, if the airline wanted to get approval for the iPad, it would have to test the first iPad, iPad 2 and the new iPad, each on a separate flight, with no passengers on the plane.
It would have to do the same for every version of the Kindle. It would have to do it for every different model of plane in its fleet. And American, JetBlue, United, Air Wisconsin, etc., would have to do the same thing. (No wonder the F.A.A. is keeping smartphones off the table since there are easily several hundred different models on the market.)
Ms. Lunardini added that Virgin America would like to perform these tests, but the current guidelines make it “prohibitively expensive, especially for an airline with a relatively small fleet that is always in the air on commercial flights like ours.”
- Wikipedia: Federal Aviation Administration.
Why might John Roberts vote to uphold the individual Mandate?
Ironically because it might be the conservative thing to do. This commentator points out that Chief Justice Roberts tends to yield to history and precedence when deciding cases and there is little precedence for making a decision which drastically changes the court's interpretation of the commerce clause and throws out what has been accomplished with expanded Congressional power under the commerce clause.
A historically minded judge -- such as Roberts -- will be well served to recall the difficulties that Federal courts encountered during the 60 years preceding Wickard in distinguishing between Federal statutes that legitimately affected "commerce between the several states" and those that allegedly did not -- cases involving things such as antitrust laws, the Pure Food and Drug Act, restrictions on child labor and alcohol distribution and the creation of the NLRB. That is another reason for why the Roberts Court will, in my opinion, decide that legal challenges to the individual mandate are too much of a departure from legal precedent and too fast of an assault on the citadel of Federal powers. Such a decision would be profoundly conservative -- in the best sense of the word.
A historically minded judge -- such as Roberts -- will be well served to recall the difficulties that Federal courts encountered during the 60 years preceding Wickard in distinguishing between Federal statutes that legitimately affected "commerce between the several states" and those that allegedly did not -- cases involving things such as antitrust laws, the Pure Food and Drug Act, restrictions on child labor and alcohol distribution and the creation of the NLRB. That is another reason for why the Roberts Court will, in my opinion, decide that legal challenges to the individual mandate are too much of a departure from legal precedent and too fast of an assault on the citadel of Federal powers. Such a decision would be profoundly conservative -- in the best sense of the word.
What might the health care reform hearing look like?
The Peter Jennings Center holds a mock trial, click here for the video.
The Constitution Center outlines what to look for here and here.
The Constitution Center outlines what to look for here and here.
On Age Discrimination in Hiring
From Michael Kinsley in Bloomberg, something for 2301s to consider as we discuss civil rights:
Of all the forms of discrimination that the law forbids -- racial, gender, sexual orientation in some states -- age discrimination is the one that nevertheless goes on most brazenly. Corporate recruiters and human resource departments are carefully trained to talk in code, saying that they’re looking for “fresh thinking” or “energy, dedication and willingness to work long hours.” You know what they really mean. Hiring or promotion to top positions in government and private corporations doesn’t even pay lip service to equal opportunity for people over age 60 or so.
Is this necessarily wrong? The Age Discrimination in Employment Act of 1967 begins with a “finding” of “rising productivity and affluence.” These are different times. In today’s zero-sum world, someone who sits on a tenured chair or other sinecure is denying a place to someone else, probably younger. Was the law ever intended to protect baby boomers in no particular financial distress looking for a suitable capstone to a successful career?
Of all the forms of discrimination that the law forbids -- racial, gender, sexual orientation in some states -- age discrimination is the one that nevertheless goes on most brazenly. Corporate recruiters and human resource departments are carefully trained to talk in code, saying that they’re looking for “fresh thinking” or “energy, dedication and willingness to work long hours.” You know what they really mean. Hiring or promotion to top positions in government and private corporations doesn’t even pay lip service to equal opportunity for people over age 60 or so.
Is this necessarily wrong? The Age Discrimination in Employment Act of 1967 begins with a “finding” of “rising productivity and affluence.” These are different times. In today’s zero-sum world, someone who sits on a tenured chair or other sinecure is denying a place to someone else, probably younger. Was the law ever intended to protect baby boomers in no particular financial distress looking for a suitable capstone to a successful career?
Thursday, March 22, 2012
Supreme Court expands right to effective counsel to plea bargains
From the NYT:
Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.
The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.
Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.
The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.
“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”
Stand Your Ground
The Trayvon Martin shooting has focused attention on Stand Your Ground laws that exist in 23 states, including Texas. The laws allow people to use deadly force to when threatened without having to retreat. The question is, if the only other eyewitness to a shooting is dead - how can it be proved if someone was being threatened with deadly force, or had a reason to suspect that they were? Is this an open license for vigilantes?
- Click here for background on the laws.
Stand Your Ground laws have been heavily promoted by the National Rifle Association and the American Legislative Exchange Council.
- Click here for background on the laws.
Stand Your Ground laws have been heavily promoted by the National Rifle Association and the American Legislative Exchange Council.
Tuesday, March 20, 2012
Is life without parole for juvenile offenders cruel and unusual?
The Supreme Court heard arguments about that question today.
Supreme Court tosses out lawsuit against Maryland based on Family and Medical Leave Act - Cites State Sovereign Immunity
The case is Coleman v. Maryland Court of Appeals.
From ScotusBlog: "Justice Kennedy, the Chief Justice, Justice Thomas and Justice Alito hold that suits against the states under the self-care provision of the Family and Medical Leave Act are barred by sovereign immunity."
The Washington Post points out that in addition to the general question whether the national government can authorize lawsuits against the states, was the issue about how this ruling affected women particularly, since they are more likely to need to spend time from work following child birth:
Ginsburg said the majority missed the point that the act in its entirety shields women from discrimination.
“The best way to protect women against losing their jobs because of pregnancy or childbirth, Congress determined, was not to order leaves for women only, for that would deter employers from hiring them,” said Ginsburg, who was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
“Instead, Congress adopted leave polices from which all could benefit.”
Ginsburg, who had a reputation as a women’s rights advocate before she joined the court, pointed out that Tuesday’s decision affects only government employers and that the act still “applies, undiluted, in the private sector.”
This fits this week's 2301 subject matter perfectly. It touches both on civil rights - as related to gender - and the constitutionality of the principle enforcement mechanism the lawsuit - especially the lawsuit in federal court against the offending state. It also fits previous discussions of federalism. The principle consequence of this decision is a limit on the applicability of the Family and Medical Leave Act.
From ScotusBlog: "Justice Kennedy, the Chief Justice, Justice Thomas and Justice Alito hold that suits against the states under the self-care provision of the Family and Medical Leave Act are barred by sovereign immunity."
The Washington Post points out that in addition to the general question whether the national government can authorize lawsuits against the states, was the issue about how this ruling affected women particularly, since they are more likely to need to spend time from work following child birth:
Ginsburg said the majority missed the point that the act in its entirety shields women from discrimination.
“The best way to protect women against losing their jobs because of pregnancy or childbirth, Congress determined, was not to order leaves for women only, for that would deter employers from hiring them,” said Ginsburg, who was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
“Instead, Congress adopted leave polices from which all could benefit.”
Ginsburg, who had a reputation as a women’s rights advocate before she joined the court, pointed out that Tuesday’s decision affects only government employers and that the act still “applies, undiluted, in the private sector.”
This fits this week's 2301 subject matter perfectly. It touches both on civil rights - as related to gender - and the constitutionality of the principle enforcement mechanism the lawsuit - especially the lawsuit in federal court against the offending state. It also fits previous discussions of federalism. The principle consequence of this decision is a limit on the applicability of the Family and Medical Leave Act.
Are opinions about health care reform influenced by racial attitudes?
A study - The Spillover of Racialization into Health Care: How President Obama Polarized Public Opinion by Racial Attitudes and Race - suggest so. NPR discusses it here:
Do the intense feelings about the health care overhaul among ordinary Americans stem from their philosophical views about the appropriate role of government, or from their racial attitudes about the signature policy of the country's first black president?
In a new paper published in the American Journal of Political Science, Michael Tesler presents survey and experimental data that suggest that the racial attitudes of ordinary Americans have shaped both how they feel about the health care overhaul, and how intense those feelings are.
The paper is one of many studies that examines how the views of voters on policy issues are shaped — at least in part — by factors unrelated to those subjects: Voters are more likely to back the policies of leaders with whom they share some core aspect of identity, such as race or religion.
Tesler finds that blacks have become increasingly supportive of health care under Obama's watch. Among whites, Tesler finds a sharp divide between whites who have a liberal outlook on racial issues compared with those who have a conservative outlook on racial issues.
Do the intense feelings about the health care overhaul among ordinary Americans stem from their philosophical views about the appropriate role of government, or from their racial attitudes about the signature policy of the country's first black president?
In a new paper published in the American Journal of Political Science, Michael Tesler presents survey and experimental data that suggest that the racial attitudes of ordinary Americans have shaped both how they feel about the health care overhaul, and how intense those feelings are.
The paper is one of many studies that examines how the views of voters on policy issues are shaped — at least in part — by factors unrelated to those subjects: Voters are more likely to back the policies of leaders with whom they share some core aspect of identity, such as race or religion.
Tesler finds that blacks have become increasingly supportive of health care under Obama's watch. Among whites, Tesler finds a sharp divide between whites who have a liberal outlook on racial issues compared with those who have a conservative outlook on racial issues.
American Bar Association poll of experts shows that 85% expect Health Care Reform Law to be upheld - Why? Because of US v. Lopez
From the New Republic:
The experts ABA surveyed were unanimous in predicting that the four liberal justices (Stephen Breyer, Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg) would vote to uphold and that Clarence Thomas would vote to strike it down. Fifty-three percent said Anthony Kennedy would join the liberals, but a higher proportion, 69 percent, thought Chief Justice John Roberts would join the majority. Majorities of about 60 percent predicted that the other two conservatives, Samuel Alito and Antonin Scalia, would determine the law is unconstitutional.
. . .A more carefully reasoned explanation for why the law seems likely (although far from certain) to survive comes from Richard Primus, a former Ginsburg clerk who is now a professor of law at the University of Michigan. And it's an interesting explanation, if you're following this case, because the source of Primus' relative confidence is the very case that gives so many of the law's defenders anxiety: United States v. Lopez.
The subject of Lopez was a federal law banning gun possession near schools. The government cited its right to regulate interstate commerce as justification for the law. A five-to-four majority rejected that argument, saying that states could handle the matter on their own. In so doing, the majority, led by Chief Justice William Rehnquist, established a limit on the commerce clause power—something the court had not done since the New Deal. Critics of the Affordable Care Act hope (and advocates of the law fear) that the court’s willingness to limit the government’s interstate commerce power in that cause mean it might do the same in this one.
. . . Having already established that the power to regulate interstate commerce has limits, Primus suggests, they might not feel compelled to do so again. What’s more, the Lopez decision led to subsequent decisions—most important among them, Gonzales v. Raich—in which the court specified with more detail the limits of the commerce power. And the health care mandate falls clearly within them.
In other words, Lopez signaled a willingness to roll ball federal regulatory economic authority, something that hadn't existed since the New Deal. But, in this particular case, Lopez might make the justices more comfortable upholding the law.
The experts ABA surveyed were unanimous in predicting that the four liberal justices (Stephen Breyer, Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg) would vote to uphold and that Clarence Thomas would vote to strike it down. Fifty-three percent said Anthony Kennedy would join the liberals, but a higher proportion, 69 percent, thought Chief Justice John Roberts would join the majority. Majorities of about 60 percent predicted that the other two conservatives, Samuel Alito and Antonin Scalia, would determine the law is unconstitutional.
. . .A more carefully reasoned explanation for why the law seems likely (although far from certain) to survive comes from Richard Primus, a former Ginsburg clerk who is now a professor of law at the University of Michigan. And it's an interesting explanation, if you're following this case, because the source of Primus' relative confidence is the very case that gives so many of the law's defenders anxiety: United States v. Lopez.
The subject of Lopez was a federal law banning gun possession near schools. The government cited its right to regulate interstate commerce as justification for the law. A five-to-four majority rejected that argument, saying that states could handle the matter on their own. In so doing, the majority, led by Chief Justice William Rehnquist, established a limit on the commerce clause power—something the court had not done since the New Deal. Critics of the Affordable Care Act hope (and advocates of the law fear) that the court’s willingness to limit the government’s interstate commerce power in that cause mean it might do the same in this one.
. . . Having already established that the power to regulate interstate commerce has limits, Primus suggests, they might not feel compelled to do so again. What’s more, the Lopez decision led to subsequent decisions—most important among them, Gonzales v. Raich—in which the court specified with more detail the limits of the commerce power. And the health care mandate falls clearly within them.
In other words, Lopez signaled a willingness to roll ball federal regulatory economic authority, something that hadn't existed since the New Deal. But, in this particular case, Lopez might make the justices more comfortable upholding the law.
Paul Ryan unveils budget - Provides Alternative to Obama's - No chance it will pass the Senate
Here is a link to Ryan's plan.
And to stories and comments about it.
- The NYT.
- The Hill.
- Washington Post.
Commentators note that Ryan's budget cuts taxes and discretionary programs, while preserving defense spending. Also that it is, at the end of the day, just like the president's budget, a political document. The document also lacks specific details about whose taxes are cut.
Last year, Ryan's budget plan was used by Democrats against the party, Politico suggests that they may be able to repeat the feat.
And to stories and comments about it.
- The NYT.
- The Hill.
- Washington Post.
Commentators note that Ryan's budget cuts taxes and discretionary programs, while preserving defense spending. Also that it is, at the end of the day, just like the president's budget, a political document. The document also lacks specific details about whose taxes are cut.
Last year, Ryan's budget plan was used by Democrats against the party, Politico suggests that they may be able to repeat the feat.
Justice Department investigates Florida shooting
2301 - 16 week students are looking at civil rights this week and in class yesterday I mentioned a couple of federal agencies that handle civil rights disputes, including the Justice Department's Civil Rights Division. The division is in the news today since it announced it will investigate the recent killing of an African American teenager by a neighborhood watch volunteer.
Local law enforcement has refused to arrest the volunteer, which lead to calls for the national government to become involved. The Criminal Section of the Civil Rights Division has jurisdiction over the matter. What makes this - potentially - a civil rights matter is the racial element and the question about whether the killing was motivated by race. This coupled with the fact that local and state authorities seem uninterested in pursuing the matter.
Members of the Congressional Black Caucus want this pursued as a hate crime.
Update: A Grand Jury in Florida will investigate the case.
From the New Republic: What a Florida Teenager's Death Tells Us About Being Black in America.
Local law enforcement has refused to arrest the volunteer, which lead to calls for the national government to become involved. The Criminal Section of the Civil Rights Division has jurisdiction over the matter. What makes this - potentially - a civil rights matter is the racial element and the question about whether the killing was motivated by race. This coupled with the fact that local and state authorities seem uninterested in pursuing the matter.
Members of the Congressional Black Caucus want this pursued as a hate crime.
Update: A Grand Jury in Florida will investigate the case.
From the New Republic: What a Florida Teenager's Death Tells Us About Being Black in America.
A positive review of "Cosmic Constitutional Theory"
This is my third post on Wilkinson's book, so I suppose I should read the thing. Jeffrey Rosen gives it a very positive review in the NYT. Here's his opening paragraph which summarizes the argument better than I can:
In courts and law schools across America, the most intense legal battles are fought over theories of constitutional interpretation. From the originalists on the right to the living constitutionalists on the left, each of the warring camps claims that it has discovered the true faith and accuses its opponents of hypocrisy. Now comes Judge J. Harvie Wilkinson III with a bracingly clear and bipartisan message: All the theories are bunk! According to Wilkinson’s “Cosmic Constitutional Theory,” “the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results.” As a result of their cosmic theorizing, Wilkinson concludes, liberal and conservative judges and justices are too quick to second-guess the choices of legislatures, and the casualty is “our inalienable right of self-governance.”
Wilkinson - as we know - argues that there is no overriding theory that fits the Constitution and that justices who attempt to develop and apply such theories are overriding the will of the people. He strongly promotes judicial restraint and suggests that the best justices of the past (Holmes, Brandeis, Frankfurter, Harlan and Powell) deferred to Congress and the executive unless there was an overwhelming reason to do so.
In courts and law schools across America, the most intense legal battles are fought over theories of constitutional interpretation. From the originalists on the right to the living constitutionalists on the left, each of the warring camps claims that it has discovered the true faith and accuses its opponents of hypocrisy. Now comes Judge J. Harvie Wilkinson III with a bracingly clear and bipartisan message: All the theories are bunk! According to Wilkinson’s “Cosmic Constitutional Theory,” “the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results.” As a result of their cosmic theorizing, Wilkinson concludes, liberal and conservative judges and justices are too quick to second-guess the choices of legislatures, and the casualty is “our inalienable right of self-governance.”
Wilkinson - as we know - argues that there is no overriding theory that fits the Constitution and that justices who attempt to develop and apply such theories are overriding the will of the people. He strongly promotes judicial restraint and suggests that the best justices of the past (Holmes, Brandeis, Frankfurter, Harlan and Powell) deferred to Congress and the executive unless there was an overwhelming reason to do so.
Wheat, Marijuana and Health Insurance
What do these three have in common? The intrastate production of the first two were the subject of major Supreme Court cases, and those two cases may well determine how the upcoming case involving the third is resolved. The NYT reports that both supporters and opponents of health care reform legislation are looking to Wickard v. Filburn to support their positions.
We discuss the case in 2301 when we cover federalism, as well as related cases that demonstrate recent trends in the use of the commerce clause to justify national involvement in economic activities. In Wickard, a wheat farmer's production was judged to be subject to national regulations because it had "a substantial economic effect on interstate commerce.” So did marijuana according to a narrow majority in Gonzales v. Raich, which explained why national laws against "controlled substances" ( I love that euphamism) trumped state laws (established by citizen's initiatives) allowing their use for medicinal purposes.
Now the question is whether that same law applies to the individual mandate in the health care laws. There is an interstate market in insurance and not purchasing insurance imposes costs on those who do. Proponents of the law are hoping Justice Scalia uses this rationale in the case: “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,”
We will see soon enough. I recommend reading the NYT piece as well as this history of Wickard v Filburn linked to in the article.
We discuss the case in 2301 when we cover federalism, as well as related cases that demonstrate recent trends in the use of the commerce clause to justify national involvement in economic activities. In Wickard, a wheat farmer's production was judged to be subject to national regulations because it had "a substantial economic effect on interstate commerce.” So did marijuana according to a narrow majority in Gonzales v. Raich, which explained why national laws against "controlled substances" ( I love that euphamism) trumped state laws (established by citizen's initiatives) allowing their use for medicinal purposes.
Now the question is whether that same law applies to the individual mandate in the health care laws. There is an interstate market in insurance and not purchasing insurance imposes costs on those who do. Proponents of the law are hoping Justice Scalia uses this rationale in the case: “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,”
We will see soon enough. I recommend reading the NYT piece as well as this history of Wickard v Filburn linked to in the article.
Monday, March 19, 2012
Today in political history
I'll try to make this a regular feature. I downloaded a "this day in history" app and it contains some random bits on government and politics that I think are worth sharing.
2003: President Bush orders the start of war against Iraq.
1979: The House of Representatives begins broadcasting its day to day business via C-SPAN.
1924: Brent Scowcroft, former HW Bush cabinet member born.
1920: The US Senate rejects the Treaty of Versailles for the second time.
1918: The US Congress establishes time zones and approves daylight savings time.
1916: Eight American airplanes take off in pursuit of Pancho Villa, the first US air combat mission in history.
1891: Earl Warren, Governor of California and Chief justice of the Supreme Court is born.
1734: Thomas McKean, signer of Declaration of Independence is born
2003: President Bush orders the start of war against Iraq.
1979: The House of Representatives begins broadcasting its day to day business via C-SPAN.
1924: Brent Scowcroft, former HW Bush cabinet member born.
1920: The US Senate rejects the Treaty of Versailles for the second time.
1918: The US Congress establishes time zones and approves daylight savings time.
1916: Eight American airplanes take off in pursuit of Pancho Villa, the first US air combat mission in history.
1891: Earl Warren, Governor of California and Chief justice of the Supreme Court is born.
1734: Thomas McKean, signer of Declaration of Independence is born
Wilkinson on the left, the right and the Constitution
J. Harvie Wilkinson - whose book "Cosmic Constitutional Theory" we mentioned in class some time ago - criticized the left and right for assaulting the Constitution in their own peculiar ways.
He disagrees with the conservative arguments against the use of the commerce clause to regulate interstate activity - including the "inactivity" allegedly regulated in the Affordable Care Act:
He disagrees with the conservative arguments against the use of the commerce clause to regulate interstate activity - including the "inactivity" allegedly regulated in the Affordable Care Act:
As a political argument, that resonates: “Don’t Tread On Me” trumpets
the imperishable spirit of American liberty. But as a constitutional
argument, it would imbue judges with unprecedented powers to topple an
exhaustively debated and duly enacted federal law and to make the
determination that the decision not to buy ice cream can be neatly
severed from the decision to buy chocolate or vanilla.
In curbing federal excess, courts risk lessening our national economic
strength. That strength resides partly in the national aspects of our
founding document, among them the now maligned commerce clause and the
newly mistrusted supremacy clause, which gives preference to federal
over state law when there is a conflict. States’ rights are important in
many spheres, but the benefits of a national economic policy must also
be considered. A vibrant economic order requires some political
predictability, and the prospect of judges’ striking down commercial
regulation on ill-defined and subjective bases is a prescription for
economic chaos that the framers, in a simpler time, had the good sense
to head off.
If one simply wishes to repeal the law, repeal the law, don't use the courts to negate any future effort to find national solutions to national problems.
He also disagrees with liberal arguments that the broad language of the Constitution encompasses rights that go beyond those clearly written in the document:
Just like the opponents of the Affordable Care Act, the proponents of reproductive choice and same-sex marriage have strong arguments — but they are political, not constitutional. What are the consequences when liberals shortchange democratic liberty in favor of judicial expansion of unenumerated personal rights? Well, for one, creating constitutional rights without foundation frays the community fabric and, with it, the very notion that the majority can enact into law some expression of shared values that make ours a society whose whole is more than the sum of its parts. In pushing a constitutional vision of autonomous individuals divested of location in larger social settings, liberals risk weakening the communal values and institutions that best afford our most disadvantaged the chance for a good life.
The common thread in each argument is that the constitutional factors that have allowed for the development of strong communities that both share values and are willing to work together to solve mutual problems has been weakened in favor of - what he might call - radical individualism.
Here are readers' responses, including one that brings up the 9th Amendment - which we discussed in 2301.
If one simply wishes to repeal the law, repeal the law, don't use the courts to negate any future effort to find national solutions to national problems.
He also disagrees with liberal arguments that the broad language of the Constitution encompasses rights that go beyond those clearly written in the document:
Just like the opponents of the Affordable Care Act, the proponents of reproductive choice and same-sex marriage have strong arguments — but they are political, not constitutional. What are the consequences when liberals shortchange democratic liberty in favor of judicial expansion of unenumerated personal rights? Well, for one, creating constitutional rights without foundation frays the community fabric and, with it, the very notion that the majority can enact into law some expression of shared values that make ours a society whose whole is more than the sum of its parts. In pushing a constitutional vision of autonomous individuals divested of location in larger social settings, liberals risk weakening the communal values and institutions that best afford our most disadvantaged the chance for a good life.
The common thread in each argument is that the constitutional factors that have allowed for the development of strong communities that both share values and are willing to work together to solve mutual problems has been weakened in favor of - what he might call - radical individualism.
Here are readers' responses, including one that brings up the 9th Amendment - which we discussed in 2301.
Three questions raised by health care reform
Jonathan Cohn, from the New Republic, runs through three basic questions the Supreme Court will likely address in next week's oral arguments about Affordable Health Care Act:
1 - What are the limits of the federal government's power to regulate interstate commerce?
2 - What are the limits of the "necessary and proper" clause?
3 - Is Medicaid coercive to the states?
Use this to set up some discussion in class about the upcoming case.
Cohn points out that if the Supreme Court decides to overturn this case, then it will have to rethink a variety of decisions it has made over the years. Some - not all - conservatives have been itching for a case that allows for the court decisions made during the New Deal to be over-turned. This might well be that case, but it will set in motion changes that could well go beyond what opponents of the bill envision.
1 - What are the limits of the federal government's power to regulate interstate commerce?
2 - What are the limits of the "necessary and proper" clause?
3 - Is Medicaid coercive to the states?
Use this to set up some discussion in class about the upcoming case.
Cohn points out that if the Supreme Court decides to overturn this case, then it will have to rethink a variety of decisions it has made over the years. Some - not all - conservatives have been itching for a case that allows for the court decisions made during the New Deal to be over-turned. This might well be that case, but it will set in motion changes that could well go beyond what opponents of the bill envision.
Defining "Survivor" and "Child"
NPR reports on a Supreme Court case to be argued today regarding what "survivor" and "child" means as it applies to children conceived through in vitro fertilization after the death of the father. There is no consensus on whether the children are entitled to the father's Social Security benefits.
. . . under the 1939 Social Security Act, survivors benefits go to any child of a covered individual, and the word child is "plainly defined" as the biological offspring of a married couple. She contends that the section of the law dealing with state inheritance statutes only kicks in when the "biological parentage is disputed."
Last year, a federal appeals court in Philadelphia agreed with Capato, saying that "undisputed biological children of a deceased wage earner and his widow [are] 'children' " under the meaning of the Social Security law. The court noted that this was a case "where medical-scientific technology has advanced faster than the regulatory process."
The Obama administration appealed to the U.S. Supreme Court, contending that the lower court had ignored more than 70 years of government policy dictating how to determine the eligibility of survivor benefits for children.
In its brief setting out its arguments, the government maintains that posthumously conceived children fall outside the class of children entitled to survivors benefits because "they were brought into being by a surviving parent with the knowledge that the deceased biological parent will not be able to contribute wages for their support."
The administration also makes a states' rights argument, contending that "child-parent relationships are generally determined by state law" and that nothing in the Social Security Act "suggests that Congress intended to depart from that approach."
The case is Astrue v. Capato. Click here detail from ScotusBlog.
- Who is a Decendent's Child?
. . . under the 1939 Social Security Act, survivors benefits go to any child of a covered individual, and the word child is "plainly defined" as the biological offspring of a married couple. She contends that the section of the law dealing with state inheritance statutes only kicks in when the "biological parentage is disputed."
Last year, a federal appeals court in Philadelphia agreed with Capato, saying that "undisputed biological children of a deceased wage earner and his widow [are] 'children' " under the meaning of the Social Security law. The court noted that this was a case "where medical-scientific technology has advanced faster than the regulatory process."
The Obama administration appealed to the U.S. Supreme Court, contending that the lower court had ignored more than 70 years of government policy dictating how to determine the eligibility of survivor benefits for children.
In its brief setting out its arguments, the government maintains that posthumously conceived children fall outside the class of children entitled to survivors benefits because "they were brought into being by a surviving parent with the knowledge that the deceased biological parent will not be able to contribute wages for their support."
The administration also makes a states' rights argument, contending that "child-parent relationships are generally determined by state law" and that nothing in the Social Security Act "suggests that Congress intended to depart from that approach."
The case is Astrue v. Capato. Click here detail from ScotusBlog.
- Who is a Decendent's Child?
How will conservative justices vote on the constitutionality of health care reform?
Some early guesswork from the Washington Post:
Roberts, who appears less dedicated to federalism than was his predecessor and mentor, William H. Rehnquist, may be “gettable” on such a question. Justice Anthony M. Kennedy, the usual go-to conservative for liberals, is a realistic possibility. Even Justice Antonin Scalia, the court’s most irascible conservative, might be lured aboard. Alito’s past votes make him more of a mystery.
The court’s liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — are solid on the question of Congress’s broad authority. On the other side, Justice Clarence Thomas has spent his 20 years on the court as a voice for the view that the Constitution mandates a far more limited role for the federal government.
“I think the rest are more or less perceived as being in play,” said Erwin Chemerinsky, the liberal dean of the University of California at Irvine Law School.
Regarding the actual law on the ground, Paul Krugman argues that Romneycare has worked in Massachusetts.
Roberts, who appears less dedicated to federalism than was his predecessor and mentor, William H. Rehnquist, may be “gettable” on such a question. Justice Anthony M. Kennedy, the usual go-to conservative for liberals, is a realistic possibility. Even Justice Antonin Scalia, the court’s most irascible conservative, might be lured aboard. Alito’s past votes make him more of a mystery.
The court’s liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — are solid on the question of Congress’s broad authority. On the other side, Justice Clarence Thomas has spent his 20 years on the court as a voice for the view that the Constitution mandates a far more limited role for the federal government.
“I think the rest are more or less perceived as being in play,” said Erwin Chemerinsky, the liberal dean of the University of California at Irvine Law School.
Regarding the actual law on the ground, Paul Krugman argues that Romneycare has worked in Massachusetts.
Sunday, March 18, 2012
Was Texas "conceived and run as an Anglo republic?"
SMU political scientists Cal Jillson, in his newly published book, Lone Star Tarnished: A Critical Look at Texas Politics and Public Policy, argues that it was. Demographic changes are making it more difficult for the majority to hold on:
An excerpt:
Race and ethnicity have been profoundly important in American and Texas history. Distinctions of race and ethnicity were written into every U.S. immigration statute from the 1790s through the 1950s and remain central to our discussions of immigration today. Similarly, Texas used its constitutions and laws to define who was welcomed, who was excluded, and with what degree of force. As the Anglo majority that has governed Texas since its independence fades into history, what kinds of political change will follow?
An excerpt:
Race and ethnicity have been profoundly important in American and Texas history. Distinctions of race and ethnicity were written into every U.S. immigration statute from the 1790s through the 1950s and remain central to our discussions of immigration today. Similarly, Texas used its constitutions and laws to define who was welcomed, who was excluded, and with what degree of force. As the Anglo majority that has governed Texas since its independence fades into history, what kinds of political change will follow?
Civil Rights Issues in the News
A few random civil rights stories from today's interwebs.
- Civil rights organizations are attempting to enlist Hyundai - one of Alabama's largest employers - in their efforts to over turn HB 56, the states's immigration laws which "requires police, among other things, to check the identification and immigration status of anyone detained and suspected of being an illegal immigrant."
- Alabama's law is being challenged in the courts by Latino groups, notably LatinoJustice - here are it's observations of the arguments made regarding the law at the 11th Circuit Court of Appeals. The court ruled to block implementation of parts of the law pending further appeals (see the decision here). The ACLU likes the outcome. And here is a statement from the ACLU on the rights of immigrants.
- Is immigration a Civil Right? An argument that it is not.
- Is the immigration battle the civil rights issue of this era? But perhaps gay marriage is the defining civil right issue.
- Remembering Bayard Rustin, a chief strategists for various civil rights causes during the 20th Century, who was born 100 years ago and died in 1987.
- David Frum reminds us that Mitt's dad George Romney was a moderate Republican back when they were "the strongest supporters of federal civil-rights legislation, and had been such since the 1930s. In percentage terms, more congressional Republicans voted in favor of the Civil Rights Act of 1964 than did Democrats." As 2301s will see soon enough, this apparent discrepancy is easily addressed by pointing out that in 1964, the South allied with the Democratic Party, to day they ally with the Republican Party.
- Virginia Governor McDonnel is "on pace to restoring the civil rights of more felons than any of his predecessors. . . . In Virginia, people convicted of felonies are ineligible to vote, hold public office and serve on juries." In most other states, these rights are restored once punishment is served.
- Civil rights organizations are attempting to enlist Hyundai - one of Alabama's largest employers - in their efforts to over turn HB 56, the states's immigration laws which "requires police, among other things, to check the identification and immigration status of anyone detained and suspected of being an illegal immigrant."
- Alabama's law is being challenged in the courts by Latino groups, notably LatinoJustice - here are it's observations of the arguments made regarding the law at the 11th Circuit Court of Appeals. The court ruled to block implementation of parts of the law pending further appeals (see the decision here). The ACLU likes the outcome. And here is a statement from the ACLU on the rights of immigrants.
- Is immigration a Civil Right? An argument that it is not.
- Is the immigration battle the civil rights issue of this era? But perhaps gay marriage is the defining civil right issue.
- Remembering Bayard Rustin, a chief strategists for various civil rights causes during the 20th Century, who was born 100 years ago and died in 1987.
- David Frum reminds us that Mitt's dad George Romney was a moderate Republican back when they were "the strongest supporters of federal civil-rights legislation, and had been such since the 1930s. In percentage terms, more congressional Republicans voted in favor of the Civil Rights Act of 1964 than did Democrats." As 2301s will see soon enough, this apparent discrepancy is easily addressed by pointing out that in 1964, the South allied with the Democratic Party, to day they ally with the Republican Party.
- Virginia Governor McDonnel is "on pace to restoring the civil rights of more felons than any of his predecessors. . . . In Virginia, people convicted of felonies are ineligible to vote, hold public office and serve on juries." In most other states, these rights are restored once punishment is served.
About this week
Here's what we're covering this week:
GOVT 2301 16 week: Civil Rights
GOVT 2302 16 week: The Personal Presidency
GOVT 2301 8 week mini: The United States and Texas Constitutions
GOVT 2302 8 week mini: The Constitutional Design of the Legislature in the US and Texas
Expect posts this week focusing primarily on each of these topics.
GOVT 2301 16 week: Civil Rights
GOVT 2302 16 week: The Personal Presidency
GOVT 2301 8 week mini: The United States and Texas Constitutions
GOVT 2302 8 week mini: The Constitutional Design of the Legislature in the US and Texas
Expect posts this week focusing primarily on each of these topics.
9 - Written Assignments for both 2301 and 2302
Now that we're back from spring break we're going to gear up for the finish of the semester. Some of you have likely forgotten - or chosen to forget - that there is a 1000 word (at minimum) essay about a subject outlined in the syllabus. I've given you a general idea about what to write about and asked you to give me some specifics - and that's what I want you to write about this week.
Give me a preliminary idea about what you plan to write about for the final report. If you need assistance honing in on something let me know.
I am here to help.
Give me a preliminary idea about what you plan to write about for the final report. If you need assistance honing in on something let me know.
I am here to help.
Saturday, March 17, 2012
From the Wasington Post: Senate reaches deal on federal judicial nominations
Judicial confirmations are perhaps the ultimate in three way checking and balancing. 2302s should note that these battles have become increasingly drawn out over recent years and seem to have kicked up several notches since Obama became president. The battle over the composition of the courts is in many ways a battle over who gets to determine what the Constitution means.
But the Senate leadership may have figured a way to vote up or down on a handful of nominees:
Senate leaders reached a deal Wednesday on judicial nominations, averting what could have been a weeks-long fight over the fate of 17 picks to serve on the federal bench.
After sparring on the issue for the last three days, Senate Majority Leader Harry M. Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) signaled at midday that they had reached a deal. Democratic aides said senators would vote to confirm 12 federal district court nominees and two circuit court picks by May and move next to a vote on a bipartisan jobs bill that passed overwhelmingly last week by the House with White House support.
The agreement, announced after the Senate approved a transportation funding bill by wide margins, appears to be a victory for Republicans, who had pushed Reid to hold a vote on the jobs measure. Democrats, having successfully drawn Republicans in recent weeks into a fight over reproductive rights and religious freedom, instead appeared eager to revive a years-long argument over federal court nominations.
Reid moved Monday to hold an up-or-down vote on 17 nominees to U.S. district courts, noting that 14 of the nominees earned unanimous approval from the Senate Judiciary Committee and that all of them deserved swift confirmation.
But the Senate leadership may have figured a way to vote up or down on a handful of nominees:
Senate leaders reached a deal Wednesday on judicial nominations, averting what could have been a weeks-long fight over the fate of 17 picks to serve on the federal bench.
After sparring on the issue for the last three days, Senate Majority Leader Harry M. Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) signaled at midday that they had reached a deal. Democratic aides said senators would vote to confirm 12 federal district court nominees and two circuit court picks by May and move next to a vote on a bipartisan jobs bill that passed overwhelmingly last week by the House with White House support.
The agreement, announced after the Senate approved a transportation funding bill by wide margins, appears to be a victory for Republicans, who had pushed Reid to hold a vote on the jobs measure. Democrats, having successfully drawn Republicans in recent weeks into a fight over reproductive rights and religious freedom, instead appeared eager to revive a years-long argument over federal court nominations.
Reid moved Monday to hold an up-or-down vote on 17 nominees to U.S. district courts, noting that 14 of the nominees earned unanimous approval from the Senate Judiciary Committee and that all of them deserved swift confirmation.
Three Hill stories about the FCC
2302's should read these since they touch on a critical independent executive agency - one that is commonly argued to be captured by the industry it is meant to regulate. 2301s should read these for what they tell us about federalism - what policies the national government claims it has authority to regulate. Few claims are made that it is unconstitutional for them to regulate communications since it seems by its nature to be an interstate activity. 2301s might also be attentive to the agency capture angle, since these relationships are driven by industries and the lobbyists who represent them. Are FCC commissioners truly independent and attentive to the needs of the general public, or are they placed on the commission to represent the needs of the industry?
1 - LightSquared: FCC's planned block will violate our 'constitutional rights': The FCC's efforts to resolve a conflict between LightSquared and companies that use GPS is getting nasty. More from PCWorld.
2 - FCC commissioner blasts his agency for over-regulation: This is self explanatory, but fits within the subject matter of previous posts on the overall impact of regulations and whether independent regulatory agencies are too zealous in their approach to what they do. It is worth pointing out that the commissioner in question was appointed by George W Bush and shares the general disposition to regulations that Republicans tend to have.
3 - Republican pushes FCC for details on Google 'Wi-Spy': The FCC has been investigating the fallout from the personal data Google collected and published while creating its Street View feature. A member of Congress wants to see the report.
For further info:
- The FCC Website
- The FCC Wikipedia site
1 - LightSquared: FCC's planned block will violate our 'constitutional rights': The FCC's efforts to resolve a conflict between LightSquared and companies that use GPS is getting nasty. More from PCWorld.
2 - FCC commissioner blasts his agency for over-regulation: This is self explanatory, but fits within the subject matter of previous posts on the overall impact of regulations and whether independent regulatory agencies are too zealous in their approach to what they do. It is worth pointing out that the commissioner in question was appointed by George W Bush and shares the general disposition to regulations that Republicans tend to have.
3 - Republican pushes FCC for details on Google 'Wi-Spy': The FCC has been investigating the fallout from the personal data Google collected and published while creating its Street View feature. A member of Congress wants to see the report.
For further info:
- The FCC Website
- The FCC Wikipedia site
Do we spend too little on Congress? Does this make members of Congress dependent on lobbysist?
I highly recommend the following review of two recent books on lobbying in Congress, as well as some of the reactions it has kicked up.
The general - counter intuitive - point is that the less we spend on Congress, the more dependent they become on the expertise that lobbyists have on the subject of legislation before them. This is called the legislative subsidy. If you want better - neutral - legislation free from the influence of lobbyist, you have to pay for it.
The subject is worth a class discussion.
- How to Fix Politics By Adding More Money to the System.
- Wonk Time: Increase the MRA in the House?
- Lobbying as Legislative Subsidy.
The general - counter intuitive - point is that the less we spend on Congress, the more dependent they become on the expertise that lobbyists have on the subject of legislation before them. This is called the legislative subsidy. If you want better - neutral - legislation free from the influence of lobbyist, you have to pay for it.
The subject is worth a class discussion.
- How to Fix Politics By Adding More Money to the System.
- Wonk Time: Increase the MRA in the House?
- Lobbying as Legislative Subsidy.
Friday, March 16, 2012
Catching up with the health care reform
The Hill tells us that the Obama Administration is shifting its argument justifying the legislation from the Commerce Clause to the Necessary and Proper Clause:
A ruling that the mandate is unconstitutional could make it nearly impossible to implement other parts of the healthcare law — which is exactly the point the Department of Justice is highlighting in its most recent briefs.
Justice has aggressively defended the mandate as its own regulation of economic activity, but is now stepping up a separate argument emphasizing that the mandate is part of a broader regulatory scheme.
The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers.
The briefs give a long history of failed efforts to expand healthcare coverage and say the new law’s purpose was to reform the overall system.
“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.
The Hill also point out that the Supreme Court has ruled out videotaping the arguments coming up soon, that Republicans are weighing how aggressively to pursue a repeal prior to the November election, and the Senate is set to consider its version of the recently passed House bill terminating the Independent Payment Advisory Board.
A ruling that the mandate is unconstitutional could make it nearly impossible to implement other parts of the healthcare law — which is exactly the point the Department of Justice is highlighting in its most recent briefs.
Justice has aggressively defended the mandate as its own regulation of economic activity, but is now stepping up a separate argument emphasizing that the mandate is part of a broader regulatory scheme.
The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers.
The briefs give a long history of failed efforts to expand healthcare coverage and say the new law’s purpose was to reform the overall system.
“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.
The Hill also point out that the Supreme Court has ruled out videotaping the arguments coming up soon, that Republicans are weighing how aggressively to pursue a repeal prior to the November election, and the Senate is set to consider its version of the recently passed House bill terminating the Independent Payment Advisory Board.
The House passes the Jumpstart Our Business Startups Act
Its the J.O.B.S. bill - get it?
Story from the NYT:
The House overwhelmingly approved legislation on Thursday to ease small businesses’ access to investments and capital markets, a sign that the shadow of the November election is pressing Congress into action.
The large margin of victory — the bill passed 390 to 23 — on the Jumpstart Our Business Startups Act is expected to propel the legislation into law. Senator Harry Reid of Nevada, the majority leader, said a Senate version would probably be unveiled early next week. It largely reflects the House bill, which is known as the JOBS Act, and Senator Charles E. Schumer, Democrat of New York, said he expected it to pass before the end of the month.
The vote came on the same day that Speaker John A. Boehner of Ohio said that the House was likely to set aside contentious efforts to draft its own transportation and infrastructure bill and take up a bipartisan Senate version once it passed. The Senate version cleared a crucial procedural hurdle on Thursday on the way to expected passage early next week.
- More commentary from The Hill:
One piece of the bill, H.R. 3606, would create a new class of companies labeled as "emerging growth companies" that would enjoy relaxed rules under the Securities and Exchange Commission (SEC).
The bill also ends an SEC ban on small company advertisements to solicit capital, allows the solicitation of funds over the Internet, known as crowdfunding, increases the offering threshold from $5 million to $50 million before SEC registration is required, raises the shareholder registration requirement from 500 to 1,000 shareholders, and increases the number of shareholders allowed to invest in community banks from 500 to 2,000.
- Forbes wonder if the bill will encourage fraud.
Story from the NYT:
The House overwhelmingly approved legislation on Thursday to ease small businesses’ access to investments and capital markets, a sign that the shadow of the November election is pressing Congress into action.
The large margin of victory — the bill passed 390 to 23 — on the Jumpstart Our Business Startups Act is expected to propel the legislation into law. Senator Harry Reid of Nevada, the majority leader, said a Senate version would probably be unveiled early next week. It largely reflects the House bill, which is known as the JOBS Act, and Senator Charles E. Schumer, Democrat of New York, said he expected it to pass before the end of the month.
The vote came on the same day that Speaker John A. Boehner of Ohio said that the House was likely to set aside contentious efforts to draft its own transportation and infrastructure bill and take up a bipartisan Senate version once it passed. The Senate version cleared a crucial procedural hurdle on Thursday on the way to expected passage early next week.
- More commentary from The Hill:
One piece of the bill, H.R. 3606, would create a new class of companies labeled as "emerging growth companies" that would enjoy relaxed rules under the Securities and Exchange Commission (SEC).
The bill also ends an SEC ban on small company advertisements to solicit capital, allows the solicitation of funds over the Internet, known as crowdfunding, increases the offering threshold from $5 million to $50 million before SEC registration is required, raises the shareholder registration requirement from 500 to 1,000 shareholders, and increases the number of shareholders allowed to invest in community banks from 500 to 2,000.
- Forbes wonder if the bill will encourage fraud.
Ideological attitudes towards college education
Apparently attitudes towards college education - and its benefits - is determined to a large degree by whether one identifies as liberal or conservative:
The importance of ideology to the value that the typical American attaches to higher education is tremendous. When I construct a statistical model that accounts for a person's income, gender, education, race, where they live, and whether or not they are the parent of a minor child -- conservatism is the single most powerful predictor of whether a person thinks a college education is important to financial success, the effect a person thinks college has on political ideology, and their opinion of college professors. In fact, political ideology is more strongly associated with a person's views on college professors than it is their views on President Obama! When compared to liberals, the amount that conservatives discount the value of college is about the same amount that persons with high school diplomas discount college when compared with college graduates.
The author believes the difference in opinion is driven by signals people get from elites they identify with - most recently Senator Santorum's suggestion that Obama was being a snob for wanting people to go to college.
The importance of ideology to the value that the typical American attaches to higher education is tremendous. When I construct a statistical model that accounts for a person's income, gender, education, race, where they live, and whether or not they are the parent of a minor child -- conservatism is the single most powerful predictor of whether a person thinks a college education is important to financial success, the effect a person thinks college has on political ideology, and their opinion of college professors. In fact, political ideology is more strongly associated with a person's views on college professors than it is their views on President Obama! When compared to liberals, the amount that conservatives discount the value of college is about the same amount that persons with high school diplomas discount college when compared with college graduates.
The author believes the difference in opinion is driven by signals people get from elites they identify with - most recently Senator Santorum's suggestion that Obama was being a snob for wanting people to go to college.
Thursday, March 15, 2012
REDISTRICTINGONLINE.ORG
I added a link to a blog mentioned in the story below to the elections section below. I tseems to be good general source for information related to districting, gerrymandering and related items.
- redistrictingonline.org
- redistrictingonline.org
Texas Attorney General Challenges Voter ID Ruling
Texas continues to challenge the constitutionality of Section 5 of the Voting Rights Act, which makes Texas and a handful of other states, present redistricting and election law changes to the federal government for approval prior to being implemented. This is due to Texas' history of discriminatory actions. Some argue this requirement is no longer necessary. Minority groups disagree.
From the Austin American-Statesman:
Attorney General Greg Abbott on Wednesday made a direct constitutional challenge to a piece of the historic Voting Rights Act of 1965, which singles out Texas and several other states.
Abbott took aim at a section of the act that requires Texas and several other states, mostly in the South, that have histories of discrimination to "pre-clear" any changes to election laws. Abbott seems to be using the U.S Department of Justice's recent denial of pre-clearance of the Legislature's controversial voter ID law, which would require voters to present a valid form of photo identification before casting ballots, as a way to try to change the larger decades-old requirement.
"For the Department of Justice to now contend that Texas cannot implement its voter ID law denies Texas the ability to do what other states can rightfully exercise under the Constitution," Abbott, a Republican, said in a statement.
Richard Hasen, an elections law professor at the University of California, Irvine, said Abbott's move could represent a dramatic shift in election law for Texas and all other states in the country. "That ups the ante," he said.
From the Austin American-Statesman:
Attorney General Greg Abbott on Wednesday made a direct constitutional challenge to a piece of the historic Voting Rights Act of 1965, which singles out Texas and several other states.
Abbott took aim at a section of the act that requires Texas and several other states, mostly in the South, that have histories of discrimination to "pre-clear" any changes to election laws. Abbott seems to be using the U.S Department of Justice's recent denial of pre-clearance of the Legislature's controversial voter ID law, which would require voters to present a valid form of photo identification before casting ballots, as a way to try to change the larger decades-old requirement.
"For the Department of Justice to now contend that Texas cannot implement its voter ID law denies Texas the ability to do what other states can rightfully exercise under the Constitution," Abbott, a Republican, said in a statement.
Richard Hasen, an elections law professor at the University of California, Irvine, said Abbott's move could represent a dramatic shift in election law for Texas and all other states in the country. "That ups the ante," he said.
Wednesday, March 14, 2012
Combat stress linked to killings in Afghanistan; has the all volunteer military been pushed to the brink? Should the draft be reinstituted?
Those are among the questions being asked after news reports indicate that the sergeant that killed 16 Afghan civilians served four tours of duty and suffered the stress that seems to follow such tours. Attention is now turning to what services are offered to returning troops and whether they are sufficient, and the harder question about whether too much is being asked of the all-voluntary military. Should we return to the draft in order to lessen the burden volunteers carry?
- Diane Rehm: Aftermath of Deadly Attack on Afghan Villagers.
I'd also monitor public opinion on the military. Since 9-11, support has been very high, but as anyone alive during the last years of the Vietnam War (and the My Lai Massacre) can tell you, this can change quickly.
- Diane Rehm: Aftermath of Deadly Attack on Afghan Villagers.
I'd also monitor public opinion on the military. Since 9-11, support has been very high, but as anyone alive during the last years of the Vietnam War (and the My Lai Massacre) can tell you, this can change quickly.
From the NYT: How Is the Payroll Tax Cut Doing?
An NYT columnist argues that the payroll tax cut - which was extended earlier this semester - is having a positive impact on the economy, but this impact is likely to be reversed once the tax cut expires:
My calculations last year, based on the proposed cut of 3.1 percentage points, suggested that the payroll tax cut “could raise employment by at least a million, albeit the duration of job creation is related to how long the tax cut lasts.”
My calculations last year, based on the proposed cut of 3.1 percentage points, suggested that the payroll tax cut “could raise employment by at least a million, albeit the duration of job creation is related to how long the tax cut lasts.”
The Fed's Stress Test
Most large banks passed stress tests given by the Federal Reserve. These are intended to ensure that these banks can survive another financial crash. Not everyone trusts the tests.
Santorum wins Alabama and Mississippi (sort of)
The Senator won the popular vote in each state, but Romney got more delegates in Mississippi.
Is the State Commission on Judicial Misconduct immune from Sunset review?
They seem to think so. According to the Austin American Statesman:
When the Sunset Advisory Commission, which is legislatively charged with determining if state agencies are operating efficiently, asked for records of meetings of the State Commission on Judicial Conduct, the commission refused. The commission, which hears misconduct complaints levied against the state's 4,000 judges, argued that "its meetings are closed to everyone, including the Sunset Commission and its staff," according to the sunset agency's report on the judicial conduct commission, released this month.
Not only that, the report said, but the judges' commission refused to grant state investigators permission to read any of the memoranda about its rulings because of attorney-client privilege.
The denials, in effect, prevented the auditors from determining not only if the commission operated efficiently, but also if its deliberations concerning judges — most of whom are elected — were fair or impartial.
"As a result, staff could not assess the commission's primary duty," the report concluded. "By preventing a full review, the Commission on Judicial Conduct seriously limits the ability of the Sunset Commission and the Legislature to assess the oversight of judges in Texas, as required by law."
The reason for the refusal seems to be the need for judicial independence:
The judicial commission argued that, as a judicial organization, it is not subject to the same type of review as other state agencies.
As far as withholding records from the sunset inspectors, "it's not our closed records policy," Willing said. "It's the constitution and the statute."
By law, the only time the commission is required to reveal information about its deliberations is during what are known as "formal proceedings" and when it issues a public sanction against a judge. Both of those are rare events.
Last year, only a fifth of the commission's disciplinary actions involved a public sanction against a judge. And, over the past 10 years, the commission has held a formal proceeding only 12 times, the sunset report stated.
The Sunset Advisory Commission argues that this refusal to release records is a probem:
"Unlike most state agencies that must operate openly and transparently," the report concluded, "the commission operates largely behind closed doors to protect the confidentiality of the judges it oversees, most of whom are elected officials.
"While Sunset recognizes the need to protect judges from public disclosure of unfair or unwarranted complaints stemming from individuals unhappy with the outcome of a case or from political opponents, this must be balanced against the public's right to know that the process is working fairly and effectively when judges misuse or abuse the substantial authority they have been granted."
2302s should take note since this points out an unusual aspect of the Texas executive, the fact that every (or most every) agency has to be reviewed from time to time, which gives the state the opportunity to terminate the agency if it is no longer performing it delegated duty efficiently.
For more info:
- The Sunset Advisory Commission.
- The State Commission on Judicial Conduct.
When the Sunset Advisory Commission, which is legislatively charged with determining if state agencies are operating efficiently, asked for records of meetings of the State Commission on Judicial Conduct, the commission refused. The commission, which hears misconduct complaints levied against the state's 4,000 judges, argued that "its meetings are closed to everyone, including the Sunset Commission and its staff," according to the sunset agency's report on the judicial conduct commission, released this month.
Not only that, the report said, but the judges' commission refused to grant state investigators permission to read any of the memoranda about its rulings because of attorney-client privilege.
The denials, in effect, prevented the auditors from determining not only if the commission operated efficiently, but also if its deliberations concerning judges — most of whom are elected — were fair or impartial.
"As a result, staff could not assess the commission's primary duty," the report concluded. "By preventing a full review, the Commission on Judicial Conduct seriously limits the ability of the Sunset Commission and the Legislature to assess the oversight of judges in Texas, as required by law."
The reason for the refusal seems to be the need for judicial independence:
The judicial commission argued that, as a judicial organization, it is not subject to the same type of review as other state agencies.
As far as withholding records from the sunset inspectors, "it's not our closed records policy," Willing said. "It's the constitution and the statute."
By law, the only time the commission is required to reveal information about its deliberations is during what are known as "formal proceedings" and when it issues a public sanction against a judge. Both of those are rare events.
Last year, only a fifth of the commission's disciplinary actions involved a public sanction against a judge. And, over the past 10 years, the commission has held a formal proceeding only 12 times, the sunset report stated.
The Sunset Advisory Commission argues that this refusal to release records is a probem:
"Unlike most state agencies that must operate openly and transparently," the report concluded, "the commission operates largely behind closed doors to protect the confidentiality of the judges it oversees, most of whom are elected officials.
"While Sunset recognizes the need to protect judges from public disclosure of unfair or unwarranted complaints stemming from individuals unhappy with the outcome of a case or from political opponents, this must be balanced against the public's right to know that the process is working fairly and effectively when judges misuse or abuse the substantial authority they have been granted."
2302s should take note since this points out an unusual aspect of the Texas executive, the fact that every (or most every) agency has to be reviewed from time to time, which gives the state the opportunity to terminate the agency if it is no longer performing it delegated duty efficiently.
For more info:
- The Sunset Advisory Commission.
- The State Commission on Judicial Conduct.
Tuesday, March 13, 2012
Will Rush Limbaugh Survive?
Limbaugh has been a conservative fixture for decades, but nothing is permanent. The backlash against his recent comments concerning the woman who argued in favor of isurance coverage for birth control seem to continue and as advertisers leave him, Mike Huckabee has announced that he is starting a radio show during Limbaugh's time slot.
Regarding Political Parties in the South
From the New Republic, an analysis of the Republican Party in the South - especially Alabama and Mississippi since they will be holding primaries there today. The author notes the racial divides between the two parties - the Republican Party is predominately white and the democratic Party is primalily minority - seem to transcend ideological differences.
Regarding Gas Prices and the Presidency
Ezra Klein addresses two issues associated with the recent increase in gas prices. First, can the president impact gas prices? No. Second do gas prices impact elections? Again, no. I recommend a quick read and a glance at the links. 2302 16 week students have been looking at the expansion of presidential power. Perhaps this subject applies. When presidential power increases generally, so we begin to think the office is more powerful than it actually is? That it can accomplish things - with a wve of the hand - that it really cannot?
There's a lot of hot air blowing around Washington over gas prices (see how I did that?), so let's take a moment to go through what we actually know -- and what we don't -- about their relationship to the president, the economy, and the campaign.
There's not much the president can do about gas prices. Presidents -- and, more to the point, presidential candidates -- don't like to admit that, of course. When Barack Obama was campaigning in 2008, he told Ohio, “you’re paying nearly $3.70 a gallon for gas — 2 1/ 2 times what it cost when President Bush took office.” Now the Republicans are using much the same line on him. But as Steve Mufson writes, there's no dial in the Oval Office marked "price of gas." Rather, "today’s oil prices are the product of years and decades of exploration, automobile design and ingrained consumer habits combined with political events in places such as Sudan and Libya, anxiety about possible conflict with Iran, and the energy aftershocks of last year’s earthquake in Japan." There's not much a president can do to radically change gas prices in the short term.
Gas prices can hurt the economy, of course. A U.S. Energy Information Administration analysis proposed a good rule of thumb for this: a $20 increase in the cost of a barrel of oil shaves about 0.4 points off GDP growth hikes unemployment by 0.1 percentage points. As Brad Plumer wrote, "In 2011, the United States paid about $125 billion more for oil imports than it did in 2010 (thanks, in part, to the disruptions caused by civil war in Libya). That 'oil tax' was essentially enough to wipe out the entire stimulative effects of Barack Obama’s middle-class tax cut." The question here, of course, is how large the increase in gas prices will be, and what's happening in the rest of the economy.
Finally, there's less evidence than you may think that gas prices determine elections. There's a famous chart that seems to show gas prices drove President George W. Bush's approval ratings, but careful analysis largely debunked it. Political scientist Alan Abramowitz studied gas prices and presidential approval ratings going all the way back to President Jimmy Carter and found that "gas prices alone certainly are not a perfect predictor of approval ratings or, indirectly, reelection." Nate Silver took a broader look at the political ramifications of gas prices and concluded that “there’s not a lot of evidence that oil prices are all that important” in deciding elections.
So gas prices matter. But the main way they matter is that a large spike could slow the recovery. But the key indicator to see how the recovery is doing isn't gas prices, but GDP growth, and unemployment, and other measures of the national economy. And unlike gas prices, those are measures that Congress, the White House, and the Federal Reserve can actually influence. So if the federal government is worried about the cost of energy crimping the recovery, the best way to deal with it might be to enlarge the payroll tax cut, or invest in infrastructure, or otherwise provide a boost somewhere else in the economy.
There's a lot of hot air blowing around Washington over gas prices (see how I did that?), so let's take a moment to go through what we actually know -- and what we don't -- about their relationship to the president, the economy, and the campaign.
There's not much the president can do about gas prices. Presidents -- and, more to the point, presidential candidates -- don't like to admit that, of course. When Barack Obama was campaigning in 2008, he told Ohio, “you’re paying nearly $3.70 a gallon for gas — 2 1/ 2 times what it cost when President Bush took office.” Now the Republicans are using much the same line on him. But as Steve Mufson writes, there's no dial in the Oval Office marked "price of gas." Rather, "today’s oil prices are the product of years and decades of exploration, automobile design and ingrained consumer habits combined with political events in places such as Sudan and Libya, anxiety about possible conflict with Iran, and the energy aftershocks of last year’s earthquake in Japan." There's not much a president can do to radically change gas prices in the short term.
Gas prices can hurt the economy, of course. A U.S. Energy Information Administration analysis proposed a good rule of thumb for this: a $20 increase in the cost of a barrel of oil shaves about 0.4 points off GDP growth hikes unemployment by 0.1 percentage points. As Brad Plumer wrote, "In 2011, the United States paid about $125 billion more for oil imports than it did in 2010 (thanks, in part, to the disruptions caused by civil war in Libya). That 'oil tax' was essentially enough to wipe out the entire stimulative effects of Barack Obama’s middle-class tax cut." The question here, of course, is how large the increase in gas prices will be, and what's happening in the rest of the economy.
Finally, there's less evidence than you may think that gas prices determine elections. There's a famous chart that seems to show gas prices drove President George W. Bush's approval ratings, but careful analysis largely debunked it. Political scientist Alan Abramowitz studied gas prices and presidential approval ratings going all the way back to President Jimmy Carter and found that "gas prices alone certainly are not a perfect predictor of approval ratings or, indirectly, reelection." Nate Silver took a broader look at the political ramifications of gas prices and concluded that “there’s not a lot of evidence that oil prices are all that important” in deciding elections.
So gas prices matter. But the main way they matter is that a large spike could slow the recovery. But the key indicator to see how the recovery is doing isn't gas prices, but GDP growth, and unemployment, and other measures of the national economy. And unlike gas prices, those are measures that Congress, the White House, and the Federal Reserve can actually influence. So if the federal government is worried about the cost of energy crimping the recovery, the best way to deal with it might be to enlarge the payroll tax cut, or invest in infrastructure, or otherwise provide a boost somewhere else in the economy.
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