Some background on Article 2, Section 3, Clause 1 of the U.S. Constitution

The clause reads as follows:

"[The President] shall from time to time give to the Congress Information of the State of the Union...."

It's the opening clause of a chunk of text that helps define the nature of executive power, and especially the relationship between it and the legislature. It allows him to help set Congress' agenda. Obviously it gave the president the constitutional responsibility to give his speech this week - though notice there is nothing mandating that it be given in a speech - more on that below. Here it is in context:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In 2305 we will spend time unpacking much of what is contained in this section. For now here is background and commentary on the SOTU address:

- Heritage Guide to the Constitution: State of the Union.
- The American Presidency Project: text of past addresses.
- CFA: Seven Facts about the State of the Union Address.

From History.com: This Day in History- 1962: Comedian killed in Corvair crash

Why does this matter?

Because it was an agenda setting event that would lead to the passage of auto safety regulations.

The comedian was Ernie Kovacs and the car - a Corvair - would soon be the subject of a book written by an unknown Harvard educated lawyer named Ralph Nader. The book - Unsafe at any Speed - would lead to Congress passing the 1966 National Traffic and Motor Vehicle Safety Act. It's the reason you have to wear safety belts, and have a fair shot at surviving auto crashes.

- Click here for the article.

On this day in 1962, Ernie Kovacs, a comedian who hosted his own television shows during the 1950s and is said to have influenced such TV hosts as Johnny Carson and David Letterman, dies at the age of 42 after crashing his Chevrolet Corvair into a telephone pole in Los Angeles, California, while driving in a rainstorm. Kovacs, who often appeared on camera with his trademark cigar, was found by police with an unlit cigar, leading to speculation that he had been reaching for the cigar and lost control of his vehicle. The Corvair was later made infamous by Ralph Nader’s groundbreaking 1965 book “Unsafe at Any Speed: The Designed-In Dangers of the American Automobile,” about unsafe practices in the auto industry.

Ralph Nader, who was born in 1934 and graduated from Princeton University and Harvard Law School, published “Unsafe at Any Speed” at a time when U.S. automakers were still largely unregulated. His book accused car companies of designing vehicles with an emphasis on style and power at the expense of consumer safety. One chapter of “Unsafe at Any Speed” focused on handling problems with the Chevrolet Corvair, a car produced by auto giant General Motors (GM). In February 1966, Nader testified before the U.S. Congress about some of the issues in his book. Shortly after Nader’s congressional testimony, the news media reported that Nader had been followed by detectives. It was later determined that GM had sent investigators to spy on Nader and look into his personal life in an effort to discredit him. Nader sued GM for harassment and invasion of privacy and won a settlement. The publicity surrounding GM’s actions helped make “Unsafe at Any Speed” a best-seller and turn Ralph Nader a household name. Nader’s public advocacy on auto-safety issues helped lead to the passage of the 1966 National Traffic and Motor Vehicle Safety Act, which sought to reduce the rising number of injuries and deaths from road accidents by establishing federal safety standards for every American-made vehicle, including safety belts for all passengers. The Corvair, which suffered from slumping sales due in part to the negative publicity from Nader’s book as well as to consumer lawsuits (the car’s suspension system was blamed for rollovers), was discontinued by GM in 1969.

For related topics:

- Ernie Kovacs.
- Chevrolet Corvair.
- Ralph Nader.
- Unsafe at any Speed.
- National Traffic and Motor Vehicle Safety Act.
- National Highway Traffic Safety Administration.

The NHTSA has recently been active in establishing the legal framework for self-driving cars. The following article predicted that Obama was going to mention them in his State of the Union speech - but if he did I missed it.

- Obama to discuss self-driving cars in State of the Union.

Watch the full 2016 State of the Union speech

I'll post feedback to the address, as well as historical info later. Here's a look at the actual address if you have an hour to kill.

What is the Congressional Review Act?

It was referred to in the previous post, It's what limits the ability of President Obama to implement his agenda through bureaucratic procedures in the last months of his presidency. So here's more about it:

Links:

- Wikipedia: Congressional Review Act.
- GAO: Congressional Review Act.

It was passed in 1996 not long after the Republican Party won control of the US House of Representatives as part of the Contract with America. It was an attempt to strengthen legislative control of the executive branch - specifically the rule making process.

Here's what Wikipedia offers about it.

The law empowers Congress to review, by means of an expedited legislative process, new federal regulations issued by government agencies and, by passage of a joint resolution, to overrule a regulation. Congress is given 60 legislative days to disapprove, after which the rule will go into effect. For the regulation to be invalidated, the Congressional resolution of disapproval either must be signed by the President, or must be passed over the President's veto by two-thirds of both Houses of Congress. The law requires that any agency promulgating a covered rule must submit a report to each House of Congress and to the Comptroller General that contains a copy of the rule, a concise general statement describing the rule (including whether it is a major rule), and the proposed effective date of the rule. A covered rule cannot take effect if the report is not submitted.

For context:

- United States House of Representatives elections, 1994.
- Contract with America.
- Rulemaking.
- A Guide to the Rulemaking Process.

From Politico: Obama pushing thousands of new regulations in Year 8 The calendar says there are 13 months left to Barack Obama's presidency. But when it comes to exercising executive power, it's more like five.

A look at how a president can exercise political power when Congress is held by the opposition party and the nation is distracted by a campaign. This is a good look at how the executive branch works.

- Click here for the story.

Nearly 4,000 regulations are squirming their way through the federal bureaucracy in the last year of Barack Obama’s presidency — many costing industry more than $100 million — in a mad dash by the White House to push through government actions affecting everything from furnaces to gun sales to Guantánamo.

That means a full court press at the Occupational Safety and Health Administration (OSHA) to reduce exposure limits for silica, a chemical used widely in construction and fracking that can cause cancer when inhaled; at the Bureau of Alcohol, Tobacco, Firearms and Explosives, to require more small-scale gun sellers to perform background checks; and at the Food and Drug Administration, to make food manufacturers disclose on product labels how much sugar they add to cranberry juice.

Much of this work will be carried out in the coming months by career bureaucrats working in the bowels of federal agencies, but the cumulative effect adds up to something larger: A final-year sprint by a president intent on using executive power to improve the lives of American workers and consumers — in many instances over loud objections from the businesses that will have to pay for it.

The work must be done swiftly in most cases because any regulation finalized after May
17 or thereabouts risks being blocked by Congress.

. . . The mid-May deadline isn’t statutory or in any way official, but neither is it arbitrary. It arises from the Congressional Review Act, a 1996 law that gives Congress 60 legislative days to veto, by a special swift procedure, any regulation it dislikes before the rule takes effect.

The president may veto Congress’s veto, as Obama did the one time he faced this situation. But if the 60-day period extends past the inauguration of a new president, and if that president is of the opposing party — a President Donald Trump, say, or Ted Cruz or Marco Rubio — any resolution of disapproval against his predecessor will surely go unchallenged.

From the Los Angeles Times: Is Ted Cruz a 'natural born Citizen'? Not if you're a constitutional originalist.

I want to walk through this article - slowly - my dual credit classes this week and next because it perfectly illustrates what I want you to write about this semester: The conflict over constitutional interpretation.

I posted previously about the issue of whether Senator Cruz's birth in Canada means he cannot be president because he is not a "natural born citizen" as required in the Constitution. According to this author, the answer depends on how one interprets the Constitution. And ironically, the way the senator interprets it is the one that says he is not.

- Click here for the article.

There are three leading theories of how to interpret the Constitution today. One is textualism: the Constitution means what its words say. The historical context of the words is important when a modern plain meaning is not self-evident. A second theory, adopted by many liberals, relies on a “living Constitution”: the Constitution means what is most consistent with fundamental constitutional values as applied to present circumstances. The third theory, championed by many leading conservatives, is originalism: The Constitution means what ordinary people would have understood it to mean at the time it was ratified, which is 1788.

Under either a textualist or a “living Constitution” theory, Cruz is a “natural born Citizen,” eligible to be president; under an originalist view, however, he isn't. It's the conservative theory that would exclude the conservative Cruz from presidential eligibility.

To an originalist, a “natural born Citizen” is a person who is a citizen of the United States under “natural” principles of law in 1788. Two such principles were then in play in the U.S. Jus soli — the law of soil — was the principle that a child was subject or citizen of the sovereign who ruled the land or seas on which the child was born. Jus soli was viewed as a part of the common law of England, which was adopted by the American states. Jus sanguinis — the law of blood — held that a child's citizenship flowed from the parents' allegiance, regardless of place of birth. This principle was prevalent in continental Europe, and in England it was the basis for an exception to jus soli for children born there to foreign ambassadors.

The principle of jus sanguinis in 1788 applied to patrilineal descent only: A person born in a foreign country was viewed as a “natural born Citizen” of his or her father's country. However odious it seems today, a child born of a woman whose citizenship was different from her husband's — much rarer then than today — could not be a “natural born Citizen” of the mother's country. That idea wasn't even considered until 1844 in Victorian England.

The upshot is that to an originalist, someone like Cruz — born in a foreign country (and therefore not a natural born citizen of the United States by jus soli) and to a Cuban citizen father (and therefore not a natural born citizen of the United States by jus sanguinis ) — is not eligible to be president.

Update: Harvard scholar: Ted Cruz's citizenship, eligibility for president ‘unsettled’

A noted legal scholar sees merit in the above argument.

A few major court cases related to the Second Amendment

Attention DHS dual credit students - we will walk through these cases, and the laws they challenge, at some point in class as a way to see how the interpretation of the Constitution can change over time.

This list is hardly comprehensive, but its intended to help students get an idea about how the court has interpreted and reinterpreted Second Amendment rights - as well as issues indirectly related to them - over history. I pulled these from various sources, but the Wikipedia page on firearms case law is especially useful.

- Click here for it.

Here are brief summaries:

- United States v. Cruikshank. (1875) This case was primarily about the applicability of the Bill of Rights to the states. See: the Colfax Massacre and the Enforcement Act of 1870. Prior to the 14th Amendment, it only limited the national government. The text of the amendment suggested that the now citizens of the national government are protected from the actions of their state governments as well. The Supreme Court disagreed. It could not protect the nationally defined Second Amendment rights of African-Americans from actions of the states or private citizens. If they wanted to restrict constitutionally defined rights, they could.

- Presser v. Illinois (1886) The Supreme Court upheld an Illinois law limiting the ability of individuals to form their own militias, and to parade and drill with arms did not violate the national Second Amendment. They considered the Second Amendment to be an individual right. This allowed for the limitation for individual militias.

- United States v Miller. (1939) This was a constitutional challenge to the National Firearms Act of 1934. The law required the registration of certain types of guns, as well as the payment of a tax. This was implemented by the IRS. The court ruled that the law was constitutional for a variety of reasons, most importantly because the guns affected were not used in militias and were not protected by the Second Amendment. Only military type weapons were protected.

- DC v Heller. (2006) This challenged the Firearms Control Regulations Act of 1975 and placed limits on the ability of residents to own and posses handguns - among other weapons - in their homes. Guns in the homes also had to be disassembled - or otherwise unusable. A five person majority ruled that this violated an implicit right to self defense, and that guns not traditionally used in militias could fall under Second Amendment protection. The dissent argued - among other things - that it was reasonable for local government to want to limit the availability of guns as a way of preventing crime.

- McDonald v. Chicago (2010) The Heller case only applied to the national government since DC is under the jurisdiction of Congress. McDonald was a challenge to a similar ordinance and by virtue of the same argument - that there was and implicit right to self defense in the Second Amendment, and it applied to the state and local government through the 14th Amendment.

Who are "The People" any way?

For the spring 2305 classes. Something to ponder as we read through the Constitution. The terms "the people" appears in multiple places in the Constitution, but what does it mean exactly? Who does it refer to? Who does it protect? Everyone, or a small subset of people?

The Supreme Court wrestled with this question in United States v. Verdugo-Urquidez. It involved a question about the extent of 4th Amendment protections. Does it limit all of the searches the United States or only those against "the people?" Well, who are "the people" as understood by the Supreme Court

For background:

- Oyez: United States v. Verdugo-Urquidez.
- Wikipedia: United States v. Verdugo-Urquidez.

Here are the fact pf the case according to Oyez:

Rene Martin Verdugo-Urquidez was a citizen and resident of Mexico. In cooperation with the Drug Enforcement Agency (DEA), Mexican police officers apprehended and transported him to the U.S. border, where he was arrested for various narcotics-related offenses. Following his arrest, a DEA agent sought authorization to search Verdugo-Urquidez's residences for evidence. The Director General of the Mexican Federal Judicial Police authorized the searches, but no search warrant from a U.S. magistrate was ever received. At trial, the district court granted Verdugo-Urquidez's motion to suppress the evidence on the ground that the search violated the Fourth Amendment to the Federal Constitution.

And the Question posed to the court:

Does the Fourth Amendment apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country?

The six person majority of the court ruled that it did not.

Some text from the decision's syllabus that explains why:

- Click here for it.

- The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution, and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

- The Fourth Amendment's drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own Government, and not to restrain the Federal Government's actions against aliens outside United States territory. Nor is there any indication that the Amendment was understood by the Framers' contemporaries to apply to United States activities directed against aliens in foreign territory or in international waters.

Two separate dissents argued that the restriction applied to all actions of the national government, and suggests the national government was acting hypocritically in how it was enforcing statutory law as opposed to constitutional law.

The Court today creates an antilogy: the Constitution authorizes our Government to enforce our criminal laws abroad, but when Government agents exercise this authority, the Fourth Amendment does not travel with them. This cannot be. At the very least, the Fourth Amendment is an unavoidable correlative of the Government's power to enforce the criminal law.

Link dump for January 11

I've let these accumulate. Take em or leave em.

- The National Journal argues that, despite recent Republican success in state and congressional races, public opinion research indicated the overall population is moving left. It doesn't necessarily mean that Democrats will start winning elections though - save the presidency where they have a structural advantage.

- Vox reports that "coat hanger abortions" - self induced abortions - are making a comeback. They look at the consequences in terms of criminal justice and politics. Might this turn slowly the scales away from pro-life to pro-choice policies? It happened before.

- The Atlantic makes a proposal. Democrats want more spending on infrastructure. Republicans want less red tape. They propose they compromise.

- The New York Times tell us that independents in New Hampshire like Bernie Sander and Donald Trump. Gaining their support might be their respective tickets to the general election ballot. 

- Egberto Willies writes about the Powell Memorandum. This is alleged to be the memo responsible for mobilizing the business sector in 1971 against what it perceived as attacks on it from unions and other groups. The author - Lewis Powell - would later be appointed to the Supreme Court by Richard Nixon.

- The Austin American Statesman reports that the state executive committee of the Texas Republican Party decided not to put a proposal that Texas seceded from the union on the March 1st primary ballot.

- The Hill speculates on what Congress might do to President Obama's climate rules in 2016.

- Politico looks into the omnibus spending and tax bill passed by Congress in December and finds some unusual detail. For example, they outlawed changes to the $1 bill.

- Vox reviews some of the new state laws that went into effect January 1st.

- The New York Times reminds us that there were once white male liberals in Arkansas, and they even held office.

- The New Republic points out that while early reports suggest that money hasn't had the expected impact on the presidential campaign so far, it still has a major impact on state and local races.

From the New York Times: The Political Consultant Racket

Politics - or at least professional politics - might be very different now due to Trump's emergence on the scene. You don't seem to need high dollar consultants to win any more. At least you don't if you are Donald Trump.

- Click here for the article.

Donald J. Trump is a nightmare for the political consulting industry. Not only has he insulted, among many others, Mexicans, Muslims, women, veterans and members of the media — behavior that would make any consultant cringe — but Mr. Trump has succeeded, so far, without much help from the professionals on whom other candidates rely.

Jeb Bush, by contrast, is a political consultant’s dream — mostly because his campaign has deep pockets. To date, for the 2016 election, Bush has paid over $50 million to a handful of political consulting firms, most of it for a media barrage that exceeds the amount spent by all of the other Republican candidates combined.

But for all those millions, Mr. Bush’s spending has not translated into support in the polls — he currently stands at about 5 percent nationally, compared with 38 percent for the front-runner, Mr. Trump.

Mr. Bush’s difficulties show that giving voters a steady diet of television ads is great for the consulting industry, but it offers diminishing returns for the candidate and turns off some voters in the process. Political consultants are not entirely to blame for this state of affairs, but they do benefit from a flawed system that they helped create.

Political consultants earn fees and commissions by turning the billions of dollars given to candidates, political parties and “super PACs” — like Mr. Bush’s Right to Rise — into the products and services of contemporary campaigns, especially TV (and Internet) ads.

More money means more ads, and more ads means more money. However, media saturation makes it more difficult to grab our attention, requiring more ads, and more money and contributions, to reach the electorate.

Consultants want their clients to win, but they also need their businesses to survive. Despite mounting evidence that the effects of TV on the electorate can be uncertain and often short-lived, television remains the single largest expenditure in most campaigns because candidates think they need it to win — and because it is the most reliable source of revenue and the most lucrative part of the consulting business. The economic incentives of the consulting industry are driving up the cost of campaigns.

Libertarianism and the Second Amendment.

I'll try wrapping this up in a written assignment of some sort. Libertarians seem conflicted over how to best secure gun rights. They like the Second Amendment, but its in the national constitution. They're uneasy about using the power of the national government to limit state and local power. But, perhaps that's necessary.

From the Hoover Institution: The Libertarian Gun Fallacy.
From Reason.com: Libertarians, Guns, and Federalism.
From the Yale Law Journal:
- Firearm Localism.
- Why Firearm Federalism Beats Firearm Localism.

From Politico: House intel committee looks into eavesdropping on Congress

I bet this story has legs. Great separated powers conflict - in addition to foreign policy.

- Click here for the article.

A House panel on Wednesday announced it is seeking information from the Obama administration on U.S. intelligence collection that may have swept up members of Congress. 

The House Permanent Select Committee on Intelligence’s announcement comes after a Wall Street Journal report that the U.S. collected information on private exchanges between Israeli Prime Minister Benjamin Netanyahu and members of Congress during ongoing negotiations for a nuclear deal with Iran.

“The House Intelligence Committee is looking into allegations in the Wall Street Journal regarding possible Intelligence Community (IC) collection of communications between Israeli government officials and members of Congress,” Chairman Devin Nunes (R-Calif.) said in a statement. “The Committee has requested additional information from the IC to determine which, if any, of these allegations are true, and whether the IC followed all applicable laws, rules, and procedures.”

In response, a senior administration official suggested on Wednesday afternoon that lawmakers on designated committees may already have been informed of the data collection now in the news. "The Intelligence Community is required to keep Congressional oversight committees fully informed of intelligence activities," the official said in a statement.

Although the information collected by intelligence officials apparently included comments from members of Congress, there's no evidence yet that those American lawmakers were the intended targets of the surveillance, as opposed to the Israeli premier and his aides.

For more:

- The National Interest: The NSA-Israel Scandal: Who Cares?
- Wall Street Journal: U.S. Spy Net on Israel Snares Congress.

From Grits for Breakfast: Debating the biggest Texas criminal justice stories of 2015

For 2306.

- Click here for the story.

. . . any such list is subjective, there's always room for debate. But here's how Grits would have ranked Texas' top criminal justice stories of 2015:

- Sandra Bland's death

- Darren Goforth's murder

- Waco biker shootout, aftermath

- Raising property theft thresholds

- DNA mixture debacle

- Decriminalizing truancy

- Ending pick-a-pal grand juries

- Strengthening junk science writ

- Flawed forensics reviews 

Honorable mention:

- Exoneration Commission created

- DPS border surge made rest of state measurably less safe

- SCOTUS says Texas cops can shoot whomever they want

- Texas to gather data on police shootings

- Lege ends DPS gathering ten fingerprints for driver licenses

- Number of new death sentences plummets

From the Brookings Institute: 2016 in Congress: Five things to watch

The 114th Congress ended strong. Some smart types try to figure out whether this will continue:

- Click here for the article.

They pose five questions:

1. Can Speaker Ryan extend his honeymoon?

2. Will we see separate appropriations bills?

3. What does a “proposition party” look like, exactly?

4. How does Ryan’s vision for the House square with McConnell’s electoral reality in the Senate?

5. Will congressional Republicans hand President Obama one last legislative victory on the TPP?

We will monitor progress over the spring.

From TribTalk: Greg Abbott's right about one thing: We should amend the Constitution

The author says up from that he agrees with very little of what Governor Abbott has to say, but seems to think that his proposals for modifying the Constitution are worth while, and that a nation-wide discussion of if and how the document should be changed is a good thing.

- Click here for the article.  

The only way to make sense of Abbott’s remarks is to view them as acknowledgment that the Constitution we have, to paraphrase Donald Rumsfeld, may not be the Constitution we want to structure our politics in the future. I couldn’t agree more with the governor — with whom I usually agree on very little — in this case. We are long overdue for a serious discussion about the adequacy of a very old Constitution drafted for a very different country and world. Where Abbott and I almost certainly disagree is on what the particular defects of the Constitution are.

My own favorite presidential campaign was that of 1912, when all four candidates — Theodore Roosevelt, Woodrow Wilson, Eugene Debs, and William Howard Taft — offered serious suggestions about constitutional reform or, as in the case of Taft, defenses of the constitutional status quo. Perhaps as a result, the ensuing decade featured four genuinely important amendments, even though one of them (the 18th Amendment, which introduced Prohibition) was later judged to be a failure and repealed. But that decade exemplified the view, as explicated by Publius in the very first Federalist, that Americans were in fact capable of engaging in genuine “reflection and choice” about how we wished to be governed.

The ensuing century, alas, has seen a diminution of that faith. Most of us seem scared to death (sometimes for legitimate reasons) of the viewpoints and political preferences of those who disagree with us, and the idea of a new constitutional convention, as I have learned over the last decade while advocating one, is likely to provoke horror. But to fear such change is, ultimately, to believe that the promise of a truly democratic politics is impossible because “We the People” are no longer capable of engaging in sufficient “reflection and choice.”

I'd like to point out that the last sentence points to the precise reason why the state of Texas wants its students to take two classes in government. It allows - hopefully - for the knowledge necessary to engage in reflection and choice.

Read up on the author - Sanford Levison - here.

From the Congressional Research Service: The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress

These guys look at everything. This may be the most authoritative place to get information about the various legal and constitutional issues associated with the proposed convention - which I now know is referred to as an "Article V Convention.

- Click here for the report.

Here's its summary:

Article V of the U.S. Constitution provides two ways of amending the nation’s fundamental charter. Congress, by a two-thirds vote of both houses, may propose amendments to the states for ratification, a procedure used for all 27 current amendments. Alternatively, if the legislatures of two-thirds of the states apply, 34 at present, Congress “shall call a Convention for proposing Amendments.... ” This alternative, known as an Article V Convention, has yet to be implemented. This report examines the Article V Convention, focusing on contemporary issues for Congress. CRS Report R42592, The Article V Convention for Proposing Constitutional Amendments: Historical Perspectives for Congress examines the procedure’s constitutional origins and history and provides an analysis of related state procedures.

Significant developments in this issue have occurred recently: in March 2014, the Georgia Legislature applied for a convention to consider a balanced federal budget amendment, revoking its rescission of an earlier application; in April 2014, Tennessee took similar action. While both applications are valid, they may revive questions as to the constitutionality of rescissions of state applications for an Article V Convention and whether convention applications are valid indefinitely. Either issue could have an impact on the prospects for a convention. In other recent actions, the legislatures of Ohio, in November 2013, and Michigan, in March 2014, applied to Congress for an Article V Convention to consider a balanced federal budget amendment; these are the first new state applications since 1982 and are also the 33rd and 34th applications for the balanced budget amendment convention. If all 32 previous related state applications are valid, it is arguable that the constitutional requirement for requests from two-thirds of the states has been met, and that Congress should consider calling a convention.

Internet- and social media-driven public policy campaigns have also embraced the Article V Convention as an alternative to perceived policy deadlock at the federal level. In 2011, the “Conference on a Constitutional Convention,” drew participants ranging from conservative libertarians to progressives together to discuss and promote a convention. In December 2013, a meeting of state legislators advocated a convention, while the “Convention of States” called for a convention to offer amendments to “impose fiscal restraints and limit the power of the federal government.” Also in 2013, the advocacy group Compact for America proposed the “Compact for a Balanced Budget,” an interstate compact that would provide a “turn-key” application, by which, with a single vote, states could join the compact; call for a convention; agree to its format, membership, and duration; adopt and propose a specific balanced budget amendment; and prospectively commit themselves to ratify the amendment.

Congress would face a range of questions if an Article V Convention seemed likely, including the following. What constitutes a legitimate state application? Does Congress have discretion as to whether it must call a convention? What vehicle does it use to call a convention? Could a convention consider any issue, or must it be limited to a specific issue? Could a “runaway” convention propose amendments outside its mandate? Could Congress choose not to propose a convention-approved amendment to the states? What role would Congress have in defining a convention, including issues such as rules of procedure and voting, number and apportionment of delegates, funding and duration, service by Members of Congress, and other questions. Under these circumstances, Congress could consult a range of information resources in fashioning its response. These include the record of the founders’ original intent, scholarly works cited in this report and elsewhere, historical examples and precedents, and relevant hearings, reports, and bills produced by Congress from the 1970s through the 1990s. 

From Slate: Give Me Amendments or Give Me Death: Inside the secretive campaign by state legislators to pass conservative amendments in 34 states and rewrite the Constitution.

It's been brewing for a while. I'll post separately on the constitution in exile movement, a controversial term that refers to the various efforts made to roll back the expansion of national government - and the objectives of that expansion - that began in the New Deal and continued during the Great Society. The election of Barack Obama promised to continue this expansion, so this gave an impetus to some to determine how to effectively roll it all back, and they came to the conclusion that a state convention - which is authorized in Article V - was the best way to do it.

Here's a look at an early meeting proposing the approach. I want to highlight the mention of the American Legislative Exchange Council and Mark Levin. The former is an increasingly influential interest group that represents primarily business groups and tries to limit national involvement in business affairs. The latter is an influential radio host who has promoted such a convention on his show and in books.

- Click here for the article.

The newest movement to save the republic began this past Saturday on the grounds of George Washington’s old estate. Shortly before 9 a.m., nearly 100 state legislators from 32 states filed into the library that sits above the museums of Mount Vernon. It was state legislators only; supporters (and reporters) learned that the hard way, as they called for details or were stopped at the security gates.

Inside, the legislators said a prayer, recited the Pledge of Allegiance, and got to work talking about how to form a convention of states that could amend the Constitution–without interference from Congress. They’d been brought to Mount Vernon by a team of five Republican legislators, who’d circulated the invitation back on Oct. 22. “Article V of the U.S. Constitution gives states equal standing with Congress to propose constitutional amendments,” they wrote. “In light of the federal government’s struggle to effectively execute the will of the people,” they’d create a bipartisan and “politically pure” environment to figure this out.

Article Five of the U.S. Constitution

Since calls for a national convention are increasing, its worth looking at Article Five of the U.S. Constitution. It'll give us context as well as an indication of whether Abbott's proposals are likely to pass.

Here is the article in its entirety:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

The article mentions "the first and fourth clauses in the ninth section of the first article" - it cannot be amended prior to 1808. Here are those two clauses:

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

For background:

- The Founders' Constitution: Article 5.
- Legal Information Institute: Article 5 Annotations.


The National Archives provides additional information on the Constitutional Amendment Process here. It points out that "None of the 27 amendments to the Constitution have been proposed by constitutional convention," so the governor and his compatriots are charting new ground. Never the less, at some point proposals have to be cleared by 3/4ths of the states, which is a very high hurdle to clear. If 13 states disagree with any of the proposals, they die.

Governor Abbott joins list of politicians calling for a convention to amend the United States Constitution

Looks like good material for the spring semester.

The Texas Tribune writes up his call here: Abbott Calls on States to Amend U.S. Constitution.
Here's a direct link to his full proposal: Restoring the Rule of Law with States Leading the Way.

He calls it the Texas Plan and its intended to reign in what he deems excessive activity by the national government, laws and regulations that interfere with the states. On page 4 of the document he proposes offering nine constitutional amendments.

I. Prohibit Congress from regulating activity that occurs wholly within one State.

II. Require Congress to balance its budget.

III. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.

IV. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.

V. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.

VI. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.

VII. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.

VIII. Give state officials the power to sue in federal court when federal officials overstep their bounds.

IX. Allow a two-thirds majority of the States to override a federal law or regulation.

These will be worth considering independently over the course of the semester. I've also intended - at some point - to summarize the lawsuits Abbott filed against the national government when he was Attorney General. I have a hunch there is a strong relationship between the subject of those lawsuits and these proposed amendments.

Not everyone is on board - including some fellow Republicans. The Texas Tribune article concludes with some cautionary notes:

Critics of the convention approach say the constitutional rules governing a meeting of the states could allow for a "runaway convention," in which an unlimited number of amendments could be offered, potentially creating drastic changes to the U.S. Constitution. Tea Party groups opposed Perry's 2011 proposal on similar grounds.

Konni Burton, now a Republican state senator from Colleyville, told the Fort Worth Star-Telegram that year that such a convention could allow "anyone to offer up any number of amendments... based on their own ideology and interests, which could ultimately radically change our Constitution." At the time, she was speaking on behalf of the NE Tarrant Tea Party.

Abbott insists those fears are unfounded. His policy paper argues the Constitution "leaves it to the states to limit the scope of the convention." And even if additional amendments were offered, he writes, "none of the delegates' efforts would become law without approval from three-fourths of the states."

It concludes with a quote from Senator Cruz that ties this effort into an originalistic view of the Constitution. I'm working on written assignments that will dig into the different ways that the Constitution is interpreted.

As Abbott was preparing to unveil his proposal on Friday, his protégé in the attorney general’s office, presidential contender Ted Cruz, was pledging to push for “quite a few” constitutional amendments of his own if elected. Speaking with reporters while campaigning in Iowa, the U.S. senator from Texas said a balanced budget amendment is among the add-ons the country most critically needs.

Cruz, the former solicitor general of Texas, went on to reiterate his calls for constitutional amendments that would impose term limits for members of Congress and justices on the U.S. Supreme Court. He has also proposed a constitutional amendment that would leave it to state legislatures to define marriage.

“There are many more amendments we need, in part because the federal government and the courts have gotten so far away from the original text and the original understanding of our Constitution,” Cruz told reporters after a stop in Webster City, Iowa.

INSIDE AN ACTUAL IOWA CAUCUS

This looks fun.

Jimmy Carter and the Iowa Caucus

It is argued that the Iowa Caucus became an important fixture in the election season in 1976 when a previously little know ex-governor of Georgia focused all his resources on the caucus reasoning that if he won the caucus - or did unusually well - he would pick up name recognition and contributions, and use these to steamroll into the primaries that followed. Maybe even the White House.

It worked.

For more click here: The Primary Experiment: Jimmy Who?

Forty years ago, when Jimmy Carter, a former one-term Georgia governor, was running for President, a headline in the Atlanta Constitution said, “Jimmy Who Is Running for What!?” Carter got little respect from the Democratic Party establishment, from the inhabitants of Georgetown, or from the influential Times columnist James Reston, who referred to the five-feet-nine candidate as “Wee Jimmy.” But Carter and his so-called Peanut Brigade had a plan: to spend a lot of time in Iowa, a state with a curious tradition—voting in highly personal caucuses—where George McGovern had, four years earlier, almost defeated the front-runner, Edmund Muskie. Although he finished ten points behind “uncommitted,” Carter won the state. Assessing Carter’s talent and endurance, a few political journalists guessed the future, and may have “invented” the Iowa caucuses by focusing on Carter and treating his victory as one of primary importance.

What has since become clear is that participants and observers at the time, in an unacknowledged, unplanned collaboration, were conducting a political experiment: to discover whether it was possible for a “Jimmy Who?” to run for President with little money (Carter and his volunteers often slept in the homes of supporters), no major backers, and a mostly skeptical press, and to do so while facing big-league talent, which then included the senators Henry (Scoop) Jackson, of Washington, and Birch Bayh, of Indiana; the former Vice-President Hubert Humphrey; and the thirty-eight-year-old governor of California, Jerry Brown. I met Carter at about that time, in upstate New York; he was there to meet local Party officials and, accompanied by an entourage of about two people, worked the room, saying again and again, “I’m Jimmy Carter, from Georgia!”

History of the Iowa Caucus

This seems to be cut off at the end, but you can link to related videos on the site. Feel free to scroll through them for more info.

A few Items on the History of the Iowa Caucus

It's coming February 1st.

- Catch Des Moines: Iowa Caucus History.
- The Iowa Caucuses, 1972-2008: A Eulogy.
- Iowa Caucus Rules.

More to come.

Some detail about the upcoming primary in Texas

For your perusal. Here are links to sites with details about dates and candidates on both the states and local level. We will dig into these once the semeater starts.

- Texas SOS: Important 2016 Election Dates.
- Texas SOS: Important Dates for the Party Conventions, Primary Elections and General Election.
- The Texas Tribune: The 2016 Texas Primaries.
- Brazoria County Clerk: Elections - Candidate Information.
- Brazoria County Democratic Party.
- Brazoria County Republican Party.
- Harris County Democratic Party Candidates.
- Harris County Republican Party Candidates.

For info related to races that impact ACC:

- Who will be on the Democratic and Republican primary ballots? How will this impact the ACC area?

From the Green Papers: 2016 Presidential Primaries, Caucuses, and Conventions Chronologically

I'll start posting a variety of items related to the upcoming elections.

For a full calendar of all the elections that will be held this year click here.

For information from Frontloading, click here.
For information from The New York Times, click here.

Here's a look - from politics1.com - of what's up this January and February: 

JANUARY 8, 2016: Mississippi - Filing Deadline

JANUARY 26, 2016: Kentucky - Filing Deadline (Major Parties)

JANUARY 30, 2016: West Virginia - Filing Deadline (Major Parties)

FEBRUARY 1, 2016: Iowa - Presidential Caucuses

FEBRUARY 2, 2016: New Mexico - Filing Deadline (Major Parties)

FEBRUARY 3, 2016: Maryland - Filing Deadline (Major Parties)

FEBRUARY 5, 2016: Indiana - Filing Deadline (Major Parties)

FEBRUARY 9, 2016: New Hampshire - Presidential Primary

FEBRUARY 16, 2016: Pennsylvania - Filing Deadline (Major Parties)

FEBRUARY 20, 2016: South Carolina - Republican Presidential Primary

FEBRUARY 23, 2016: Nevada - Democratic Presidential Caucuses

FEBRUARY 27, 2016: South Carolina - Democratic Presidential Primary

Note the filing deadlines. This is the last day that candidates can file to be on the ballot of the party they wish to be nominated by. I'll post separately on who is on the Texas ballot. Our deadline was December 14th. So if you wanted to run, you missed the deadline.

I;ll also post separately on the Iowa Caucus and the New Hampshire Primary - these are the traditional opening events of the election season. Everything before this has been the campaigning, fundraising and organization building necessary to win those elections.

From the Washington Monthly: Why I Quit the Congressional Research Service How Congress’s dysfunction has degraded its own in-house think tank.

More on the organization responsible for the report in the previous post. It does not have it's own website since it's work is - more or less - confidential. Other groups have made their reports public though,

The author claims that three factors seem to be undermining its effectiveness.

- cutbacks in staff and funding
- fewer personnel in congressional offices to handle constituent service
- increased public access to information / conspiracy theories

- Click here for the article.

When I joined the CRS eleven years earlier, researchers had time to research proactively. We wrote reports after lengthy periods of study, often while Congress was out of town for summer or winter vacation. By the time I left, however, I was working year round mostly in a frantic, reactive research mode. Today, it is not unusual for a CRS analyst to respond to 200 or 300 congressional requests annually. I once hit 660 in one year.

The growing workload is partly the result of the agency’s downsizing. Over the past decade, the CRS has gone from 730 employees to 600. My own research section shrank through retirements: after four of the thirteen researchers retired, there was not enough money to replace them all. The Internet has also had a big effect: constituents can easily email or tweet at their elected officials about every matter under the sun—Where can I access a federal grant for my cause? How much does the government spend on this program? Congressional staffers, increasingly young and inexperienced, must respond promptly, helpfully, and accurately, or their members risk losing a vote next election. “We’ve become a reference desk for constituents,” one staffer told me. “And when we can’t find the answer to the question, we call you.” Thus it is that the CRS, set up as a professorial policy analysis shop, now spends a lot of time answering constituent requests.

For more on the CRS:

- Wikipedia: Congressional Research Service.
- Archive-It: Congressional Research Service (CRS) Reports.
- FAS: Congressional Research Service [CRS] Reports.
- Naval Post Graduate School: Congressional Research Service (CRS) Reports.

From the Congressional Research Service: Federal Land Ownership: Overview and Data

In light of the events at the Malheur National Wildlife Refuge here's everything you need to know about the lands owned by the national government. It is produced by the Congressional Research Service which is described by the Library of Congress as follows:

The Congressional Research Service (CRS) works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. As a legislative branch agency within the Library of Congress, CRS has been a valued and respected resource on Capitol Hill for more than a century. CRS is well-known for analysis that is authoritative, confidential, objective and nonpartisan. Its highest priority is to ensure that Congress has 24/7 access to the nation’s best thinking.

- Click here for the report.


Here's a chunk from the report's summary:

The federal government owns roughly 640 million acres, about 28% of the 2.27 billion acres of land in the United States. Four agencies administer 608.9 million acres of this land: the Bureau of Land Management (BLM), Fish and Wildlife Service (FWS), and National Park Service (NPS) in the Department of the Interior (DOI), and the Forest Service (FS) in the Department of Agriculture. Most of these lands are in the West and Alaska. In addition, the Department of Defense administers 14.4 million acres in the United States consisting of military bases, training ranges, and more. Numerous other agencies administer the remaining federal acreage. The lands administered by the four land agencies are managed for many purposes, primarily related to preservation, recreation, and development of natural resources. Yet each of these agencies has distinct responsibilities.

. . . Throughout America’s history, federal land laws have reflected two visions: keeping some lands in federal ownership while disposing of others. From the earliest days, there has been conflict between these two visions. During the 19th century, many laws encouraged settlement of the West through federal land disposal. Mostly in the 20th century, emphasis shifted to retention of federal lands. Congress has provided varying land acquisition and disposal authorities to the agencies, ranging from restricted to broad.

. . . Numerous issues affecting federal land management are before Congress. They include the extent of federal ownership, and whether to decrease, maintain, or increase the amount of federal holdings; the condition of currently owned federal infrastructure and lands, and the priority of their maintenance versus new acquisitions; the optimal balance between land use and protection, and whether federal lands should be managed primarily to benefit the nation as a whole or instead to benefit the localities and states; and border control on federal lands along the southwest border.

Apparently, the House sponsor of one the principle pieces of gun control legislation - the Violent Crime Control and Law Enforcement Act of 1994 - was Jack Brooks, who represent the local area from 1975 to 1995, when he was defeated in the Republican congressional landslide of 1994. This was the campaign run on the 'Contract with America." The fact that he sponsored such a bill indicates how much the local area has changed, but then again he was defeated after sponsoring the law so that tells us something.

For background:

- Violent Crime Control and Law Enforcement Act.
- Jack Brooks.
- United States House of Representatives elections, 1994.
- Contract with America.

Agenda Setting: The Saint Valentine's Day Massacre and the National Firearms Act of 1934

This explains why the national government got involved in gun control.



I run through the policy making process in the public policy process - as is commonly done. It all begins with agenda setting. The passage of many laws - or at least the serious consideration of them - often follows an event which brings a problem to the public agenda. What I'm reading about the National Forearms Act is that its passage followed national reaction to the well known Saint Valentine's Day Massacre, notably the use of machine guns in the killing.

- Click here for the Wikipedia page on the event.

In addition, the Gun Control Act of 1968 was originally proposed after the assassination of JFK, and revived following those of RFK and MLK. The shooting of President Reagan, the Sandy Hook massacre, and recent shootings provided similar motivations for policy activity.

From History.com: This Day in History: First U.S. presidential election

A very different affair than what's going on now.

- Click here for the link.

On this day in 1789, America’s first presidential election is held. Voters cast ballots to choose state electors; only white men who owned property were allowed to vote. As expected, George Washington won the election and was sworn into office on April 30, 1789.

As it did in 1789, the United States still uses the Electoral College system, established by the U.S. Constitution, which today gives all American citizens over the age of 18 the right to vote for electors, who in turn vote for the president. The president and vice president are the only elected federal officials chosen by the Electoral College instead of by direct popular vote.

 For more on the election:

- Wikipedia: United States presidential election, 1788–89.
- David Leip's Atlas of Presidential Elections.

The first national gun control act: the National Firearms Act of 1934

As far as I can tell - not an expert on this - the statutory authority for the president's executive actions on background checks stems from this law, as well as its follow up in 1938. The 1934 law places a tax - an excise tax - on the sale of machine guns and sawed off shotguns, meaning both were still legal. This was during a time when Congress was expanding - and the Supreme Court was accepting - the idea that the tax and spending clause of the Constitution allowed taxes to be used to as a regulatory device, not just to collect revenue for predefined purposes.

Since it was a tax bill, it was originally part of the Internal Revenue Code.

The 1934 law also required all sales to be recorded in a national registry. The 1938 act expanded the law to require the licensing of interstate gun dealers, mandated that they record their sales, and prohibited sales of guns to to people convicted or indicted of committing violent crimes. Later laws modify these requirements - as do the recent executive actions - but this seem to be the basis of statutory authority.

Why did it take until 1934 for the national government to get into the business of regulating guns? Prior to this time, regulation was a fully state affair, but the availability of cars and better roads made it easier for criminals to evade states. This explains the expansion of the federal government into criminal law in general.

Here's a bit more on the original act:

- The 1934 National Firearms Act, and why it is obsolete.
- Franklin Roosevelt: The Father of Gun Control.
- Fully-Automatic Firearms.
- Full text of the law.
- 26 U.S. Code § 5845.

From the Harvard Law Review: Does the Second Amendment Protect Firearms Commerce? Defending the right to sell and trade arms

The Second Amendment refers to the right to keep and bear arms. The first of Obama's executive orders on guns places requirement on gun dealers, which is slightly different. They have to be licensed and they must perform background checks. I'm looking around for thoughts on whether these are reasonable regulations that do not limit general Second Amendment rights, but first I hunted for info on whether the Second Amendment and found the following. The author argues that the right to sell and trade arms is interwoven with the right to keep and bear them. He refers to good number of nuanced cases following DC v Heller. None of these have reached the Supreme Court.

I'm tempted to list them in a separate post - that depends on how much energy I have,

I don;t see a lot on the other side, but I'll keep looking. This article is part of a forum. You'll find other thoughts on random Second Amendment issues at the bottom of the page.

- Click here for the whole thing.

Precedents involving other constitutional rights show that businesses that provide constitutionally related services have standing in their own right to challenge statutes that injure them. For example, in Planned Parenthood v. Danforth,28 abortion providers were held to have standing to challenge a statute that criminalized some of the ways in which they provided abortion services.29 They did not need to invoke the third-party abortion rights of their patients. Indeed, it has long been observed, including by Justice Harry Blackmun, that the rights of doctors were central to Roe v. Wade.30

Likewise, in American Booksellers Association v. Hudnut,31 booksellers themselves successfully brought a First Amendment challenge to an Indianapolis ordinance that criminalized their sale of what the ordinance called “pornography.”32 The booksellers did not need to rely on the customers’ rights as book buyers, but instead asserted their own First Amendment rights. The Supreme Court summarily affirmed the decision.33
On the merits, the abortion doctor plaintiffs in Planned Parenthood were partially successful, and the bookseller plaintiffs in American Booksellers Association were completely successful. The key point is that these providers of constitutionally protected goods and services had constitutional rights, and their particular claims were entitled to be tested under the strict standards that apply to restrictions on constitutional rights.

Besides invoking their own rights, businesses can also raise the third-party constitutional rights of their customers. For example, the beer vendor in Craig v. Boren34 could raise the equal protection rights of its customers against a state law that set different drinking ages based on sex.35 The principle goes back to Pierce v. Society of Sisters36 in 1925, where the owners of religious schools had standing to raise the constitutional rights of their students and families, successfully bringing a Fourteenth Amendment challenge against a state law that forbade all private K–12 schools.37

From the White House: FACT SHEET: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer

I've yet to find confirmation, but what the president announced yesterday were executive actions that will form the basis of a series of executive orders. The White House posted the following fact sheet detailing their specific plans:

- Click here.

This is in addition to the following: Live Updates: What the President is Doing to Keep Guns Out of the Wrong Hands.

Here's my attempt to summarize the various proposals.

1 - Firearms sellers must have a federal license and must conduct background checks. The Bureaus of Alcohol, Tobacco, Forearms and Explosives is establishing the rules containing these requirements. Click here for the ATF's rulemaking page. The FBI is improving the background check system so that it works 24/7. Additional staff is to be hired to process these checks.

2 - 200 new ATF agents will be hired to help enforce gun laws. The next budget submitted by the president will request funds for the new personnel. An Internet Investigation Center (not on line yet as I can tell) has been established to track illegal online firearms trafficking, and more people have been hired for the National Integrated Ballistics Information Center.

3 - Half a billion dollars will be requested to expand access to mental health care. The Social Security Administration will issue a rule that will allow (as I interpret it) information it possesses regarding mental health for purposes of background checks. Also, the Department of Homeland Security will issue a rule that will (again as I interpret it) remove legal restrictions on states sharing information about the mental health of interested gun buyers with other states. Click here for the rule making process for SSA, and click here for the rule making process for DHS.

4 -  Three separate executive departments have been directed to "conduct or sponsor research into gun safety technology." These are the Departments of Defense, Justice, and Homeland Security.

If you are keeping count, 8 separate institutions are involved in implementing these actions. And this is just a summary. The fact sheet goes more in depth.

Key Congressional Acts Related to Firearms

In light of the president's announcement today regarding the implementation of gun laws, here are two useful source of summaries of gun laws.

- NRA: Citizen's Guide To Federal Firearms Laws - Summary.
- Law Center to Prevent Gun Violence: Key Congressional Acts Related to Firearms.

Here's the list:

- The National Firearms Act of 1934
- The Federal Firearms Act of 1938
- The Gun Control Act of 1968
- The Firearms Owners’ Protection Act of 1986
- The Brady Handgun Violence Prevention Act of 1993
- Public Safety and Recreational Firearms Use Protection Act
- The Protection of Lawful Commerce in Arms Act and Child Safety Lock Act of 2005
- National Instant Criminal Background Check System (“NICS”) Improvement Amendments Act of 2007

Is there an implicit right to rebel in the Constitution?

The following author suggest that it exists within a broader understanding of the right to petition, which is in the Magna Carta, and as a result in our First Amendment. I'm not sure how much I agree with all his points, but its an interesting read.

Expect something on Magna Carta - and the development of governing institutions throughout British history. There might be something about the British Bill of Rights as well. And while I'm at it - the notes touched on Roman history and how it applies to the design of U.S. institutions.

- Click here for: Right to rebel is 800 year old!

When right to petition was thought of in Magna Carta, it included a significant right, right to rebel if grievance is not redressed. Article 61 provided for the presentation of grievances to the king, and required the king to redress grievances within 40 days or risk rebellion. The Magna Carta’s Right to Petition includes, if the right is abridged, the right to wage whatever war against government needed to get just redress. The Magna Carta’s Petition Right included a Right to Rebel in the event that the Right to Petition were abridged, Right to rebel? It’s unimaginable.

One might be free to file a petition, but unless it is legally recognised as specific right, petitioner faces the risk of being prosecuted for sedition, libel or seditious libel. Jailing a petitioner for requesting something is atrocious. A mere mention of Right to petition is of no use without guaranteeing protection from the criminal prosecution. 

The Revolving Door and the "other" NRA

I stumbled across this graphic while looking for info related to gun policy and the influence of the National Rifle Association. This regards the National Restaurant Association and their recent habit of using insiders - meaning people with experience working in the national government in some capacity - as lobbyists. The term used to describe this is the revolving door.

- Click here for more on the National Restaurant Association.



The image is drawn from the following report:

- Click here for it.

And uses information provided by the Center for Responsive Politics.

- Click here for that.

It provides background information about the lobbyists who are registered to represent the group, and includes information related to government positions they once held. No former members of Congress lobby for the group, but plenty of people worked for various governing institutions.

These include;

- The Ways and Means Committee.
- The Finance Committee
- The office of Senator Max Baucus
- The House Oversight Committee
- The office of Senator Jon Kyl
- The Senate Republican Policy Committee
- The Internal Revenue Service
- The Office of US Trade Representative
- The Public Health and Safety Committee
- The office of the Senate Majority Leader
- The office of US Rep. Steny Hoyer

And that's just a handful. This is a good look at how government actually runs. Be ready for a question or two on the revolving door and related topics.

Federalism and Gun Policy

I'll post separately on the open carry laws that became effective yesterday - no need to prep for anything on that for the final. Below are a few items related to the increasing difference between the states on gun laws. This is a consequence of federalism which contains within it the understanding that states have discretion to pass certain types of laws as they see fit.

For the test, be familiar with the reserved powers, as well as police powers.

Gun laws seem to fit within this category, which explains the variance. I have a hunch though that gun proponents will start using the Second Amendment to challenge state restrictions on gun rights as being violations of a nationally defined right - but that remains to be seen.

Here's more on the subject:

From the Atlantic: The Split Between the States Over Guns.

Will restrictions on guns expand or contract in 2016? It depends entirely on which state you’re in. Guns are about to become a lot more visible in the nation’s second most populous state. With a law that takes effect in the new year, Texans licensed to carry firearms won’t have to conceal them anymore—they can wear them out in the open, so long as they are in a belt or shoulder holster. Later in 2016, Texans will be allowed to take guns into campus dorms and classrooms, although those will have to remain hidden from view.

Gun laws are also set to change this week in California, but the country’s biggest state is going in the opposite direction. Concealed weapons will now be banned on college campuses, and police and families will have new powers to seek court orders to strip firearms from relatives believed to be a threat to themselves or others. The partisan debate over gun policy may have paralyzed Congress, but the rise in high-profile mass shootings has catalyzed action in the states, and 2015 saw the gap in gun laws between red and blue states grow ever larger.

The Center for Public Integrity: State lawmakers take aim at federal gun control.

Across the country, a thriving dissatisfaction with the U.S. government is prompting a growing spate of bills in state legislatures aimed at defying federal control over firearms — more than 200 during the last decade, a News21 investigation found.

Particularly in Western and Southern states, where individual liberty intersects with increasing skepticism among gun owners, firearms are a political vehicle in efforts to ensure states’ rights and void U.S. gun laws within their borders. State legislators are attempting to declare that only they have the right to interpret the Second Amendment, a movement that recalls the anti-federal spirit of the Civil War and civil-rights eras.

“I think the president and the majority of Congress, both in the House and Senate, are just completely out of touch with how people feel about Second Amendment rights,” said Missouri state Sen. Brian Nieves, who has fought for bills to weaken the federal government’s authority over firearms in his state.

This article is a bit dated, but it discusses the possible consequences of increased disparity in various types of laws across the states. Could this be yet another factor leading to polarization in the nation?

Governing: Could Gay Marriage, Guns and Marijuana Lead to a Fragmented United States of America?

. . . states pass legislation with an almost industrial efficiency, America, as is often noted these days, is becoming a more and more splintered nation. Red states are redder; blue states are bluer.

Take a look at a U.S. map colored by state party control. In the upper right-hand corner down to the Mid-Atlantic, it’s all blue. In the South and across the Great Plains, you see a blanket of red. That crimson sea begins to break at the Rocky Mountains until you reach a stretch of blue along the West Coast. In a way, we are returning to our roots as a loose confederation of culturally and geographically distinct governments.

States led by Democrats are moving toward broader Medicaid coverage, stricter gun laws and a liberalized drug policy. They’ve legalized gay marriage, abolished the death penalty and extended new rights to undocumented immigrants. Republican strongholds are working quickly to remove government from the business sphere -- reducing taxes, pushing anti-union right-to-work laws and rebelling against the Affordable Care Act (ACA). They’re also pressing forward on some of their most valued social issues, promoting pro-life abortion policies and protecting the rights of gun owners.

The divisions generate fundamental questions about the nature of federalism. The sweeping national interventions of the New Deal and the comprehensive federal social legislation of the 1960s have been replaced by a more decentralized approach to governance. States are openly defying federal law and resurrecting the concept of nullification. These are not merely legal or rhetorical exercises. They are fostering real change and real consequences for average Americans.

What makes the NRA so powerful?

It makes sense to post items related to the power of the National Rifle Association since critics argue that they are principally responsible for the stalemate on legislative actions on gun violence that has led calls for executive action.

The final could have a few questions on interest groups - as well as the iron triangles and the revolving door - so these are worth a look.

- Why Is the NRA So Powerful?
- How the NRA wields its influence.
- Gun lobby's money and power still holds sway over Congress.
- How Groups Like the NRA Captured Congress—and How to Take It Back.

From the National Review: Gun Control by Executive Order?

Several media sources report that President Obama is set to announce a set of executive orders on guns next week. This is in addition to a couple dozen implemented after the shooting in Sandy Hook in 2012.

For more:
- Obama to impose new gun control curbs next week.
- Obama weighs expanding background checks through executive authority.
- Here Are The 23 Executive Orders On Gun Safety Signed Today By The President.

For 2305 students - executive orders are one of the extra constitutional checks one branch uses to limit the powers of the others. Judicial review is another. Both are likely to appear in the final. Since executive orders allow the president to set policy - which is generally considered a legislative power - questions are habitually raised about whether the measures imposed by executive orders are constitutional, or whether they violate the principle of separated powers by allowing the executive to infringe on the legislature.

A member of George W. Bush's White House Staff weighs in on this question. He give no clear answer about the legality of these actions, but suggests that these issues are best tackled in the political process, one that involves Congress. The rebuttal would likely be that Congress refuses to act, so if anything is to be done, it has to be done by the executive.

Regardless, this a good description of the issue associated with this power, and what it takes to determine if executive actions are too excessive.

- Click here for the article.

Executive orders are not constitutionally sanctioned or prohibited, but once signed, they have the force of law. Presidents have utilized them to drive policy within the executive branch since the dawn of the republic. In some cases, presidents have acted quite aggressively through executive orders. President Lincoln suspended the writ of habeas corpus during the Civil War; President Roosevelt established internment camps during World War II; and President Truman mandated equal treatment of all members of the armed forces — all through executive orders. Significantly, all three of these actions were rooted in the president’s constitutional authority as commander-in-chief of the armed forces, in the midst of national emergencies.

Presidents acting by executive order have been challenged in court, most notably in Youngstown Sheet & Tube Co. v. Sawyer (1952). In Youngstown Sheet & Tube, the Court held that President Truman had exceeded his authority by directing the seizure of steel mills to avert a strike during the Korean War, stating that “the president’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker.” Thus, the majority found that Truman had strayed too far into the province of the legislature, violating the separation-of-powers doctrine.

But it was Justice Robert Jackson’s concurrence that established the three-part framework for considering executive authority going forward. First, there are the areas of express or implied constitutional or statutory presidential authority, where the president’s authority for executive action is at its height. Second, there are areas where Congress has not legislated, and where the line of authority between the president and the Congress is vague or overlapping. Finally, there are areas where presidential action is “incompatible with the express or implied will of Congress,” where the president’s authority is at its lowest.

The analytical framework for executive action established by Justice Jackson thus provides a basis to consider how executive action by President Obama to restrict guns would fare in a legal challenge.

From Reason: 2015: The Year in Religious Liberty Controversies

Expect questions about the establishment and free exercise clauses. This article should put these in contemporary context.

- Click here for the article.

In summer 2014, passions were already running hot. The Supreme Court was about to hand down a ruling that the federal government could not force a family-run business to pay for free birth control for its workers if the owners had religious objections to doing so. The left would cry out that this amounted to allowing employers to force their beliefs on everyone else. The right would hail the decision as a landmark blow for faith-based freedom. Little did we know then that Burwell v. Hobby Lobby was more prologue than main event.

In 2015, the tension around what is meant by "religious liberty" and where its limits should be drawn came to a head. One after another, controversies boiled over. Ink was spilled. Protests were organized. Arguments were made. Decisions were written. At least one person went to jail, and more than one small business was forced to shut its doors. Below is a chronological roundup of the many times this year when people and institutions clashed on the battlefield of the First Amendment's Establishment Clause. 

Read on for more.