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.

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.

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.

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.

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.

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.

 

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.

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.

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?

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 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.

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.

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.

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.

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.

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.

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.

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.

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

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:

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.

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.

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?

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.

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?

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.

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.

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.

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.

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

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.

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.

Presidents - Before and After

The job does tend to wear you out.

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.

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. 

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

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.

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.

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.”

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.

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.

An addendum to 2302's week written assignment

I asked 2302 16 week students to pretend they were president and outline how they would respond to the burning of the Koran by soldiers in Afghanistan. Suddenly that problem seems trivial compared to the recent killings. If you haven't turned in the assignment yet, feel free to change the subject to account for new developments. Do we pull the troops out?

Texas Voter ID Law Blocked by Justice Department

This applies to our discussion of federalism, as well as elections, and probably the executive branch and checks and balances as well. Citing the Voting Rights Act, the Justice Department blocked implementation of Texas' voter ID law - which mandated that pre-approved picture ID's be presented when a voter casts a vote.

The Justice Department argued that the law disproportionately disenfranchises minority voters - especially Hispanic voters. From the NYT:

In a letter to the Texas state government, Thomas E. Perez, the assistant attorney general for civil rights, said the state had failed to meet its requirement, under the Voting Rights Act, to show that the measure would not disproportionately disenfranchise registered minority voters.

“Even using the data most favorable to the state, Hispanics disproportionately lack either a driver’s license or a personal identification card,” Mr. Perez wrote, “and that disparity is statistically significant.”

Texas has roughly 12.8 million registered voters, of whom about 2.8 million are Hispanic. The state had supplied two sets of data comparing its voter rolls with a list of people who had valid state-issued photo identification cards — one from September and the other from January — showing that Hispanic voters were 46.5 percent to 120 percent more likely to lack such identification than were non-Hispanics.

Under the Voting Rights Act, jurisdictions that have a history of suppressing minority voting — like Texas — must show that any proposed change to voting rules would not have a disproportionate effect on minority voters, even if there is no evidence of discriminatory intent.

Such “pre-clearance” can be granted either by the Justice Department or by a panel of federal judges.
This story raises a few issues we will be hitting on 16-week 2301 soon enough:

- The Voting Rights Act
- Preclearance.
- Voter ID laws. State Requirements.
- Electoral Fraud.
- Justice Department, Civil Rights Division.

Does the Second Amendment protect an individual right to carry a gun outside the home?

The Washington Post weighs in on a current controversy, fitting for my 16 week 2301s since they've been reading through the Bill of Rights and how the court tends to reinterpret it from time to time - occasionally finding rights beyond those explicitly listed. 8 week 2301 students will be hitting this subject soon enough.

Last week, a federal judge in Maryland concluded that it does and in the process struck down a Maryland licensing provision for carrying concealed weapons in public.


. . . Judge Legg agreed, building on the 2008 Supreme Court decision that the Second Amendment protects an individual right to keep and bear arms. The court emphasized the saliency of the right especially in the home and especially for self-defense. Judge Legg concluded that the Constitution and the high court’s holding must also be read to protect an individual’s right to carry weapons outside the home. Maryland’s “good and substantial” requirement impermissibly infringed on that right, he said.


The paper editorializes that the decision ought to be reviewed by the federal courts, and there's little doubt that they will. This is worthy of discussion. Does the state's interest in preserving public peace (as it sees fit) trump individual rights?

- An editorial from the Daily Caller.

Welcome 8 week mini - semester 2301 and 2302 students.

If you're looking at this post, you've come to the right place. Writing assignment are on the right hand column, and info relevant to each week's material can be found posted most everyday here - plus posts back five years or so.

Good luck in class.

Are "independents" really independent?

For 2301's - as we approach a discussion of elections in the near future. The answer is, well it depends on why people call themselves independent. Is it because they are truly in the middle of the political spectrum and are equi distant from the two major parties - or are they so far to the right or left that Republicans are too liberal or Democrats too conservative for them. This matters, because people often make erroneous statements about independents and assume they are up for grabs by either party. They are not. The following graph shows that independents that lean towards one party are almost identical in opinion towards Obama as party identifiers. Very few people are truly independent - only 7% according to this chart.





Consider this post - Three Myths about Independents - required reading.

Can Citizenship Be Revoked?

A good question from this afternoon's 2301: Can a USA Citizenship Be Revoked?

I had never thought about this much before, but for various reasons it can. This would help resolve the issues Holder raised a post below - no need to worry about due process rights for the non-citizen enemy combatant, but the person subject to having citizenship revoked would probably have due process rights to challenge it. So the question is, can citizenship rights be revoked without due process? I do not know, but my guess is no.

Some random topical posts on bureaucratic rulemaking . . .

For 2302 (primarily) a few links to recent stories regarding the federal bureaucracy and its rule-making authority.

- First, to patch up an omission in the notes, here is a link to the Office of Information and Regulatory Affairs, which is part of the White House's Office of Management and Budget and "was created by Congress with the enactment of the Paperwork Reduction Act of 1980 (PRA). OIRA carries out several important functions, including reviewing Federal regulations, reducing paperwork burdens, and overseeing policies relating to privacy, information quality, and statistical programs.'

- From the National Review, criticism of the newly created Consumer Financial Protection Bureau, which was created in the Dodd-Frank bill which itself was a response to the 2008 financial crash and the hunch by many that the crash was made possible by the removal of regulations that minimized the incentives for banks to make risky investments with deposits. The author reports on a conference which discussed whether the agency had sufficient checks on its activities, but seemed to accept the aide that reasonable regulations were needed. He also points out that Madison was concerned about the negative impact regulatory uncertainty can created in the private sector. The article also touches on the problems of regulatory capture and the revolving door.
-- The Rule of Law and the Administrative State.
-- Congress vs. Agencies: Balancing Checks and Efficiency: Gridlock, Organized Interests, and Regulatory Capture.
-- Federalist #62.

- From Reuters, comments on the difficulty of implementing the Dodd-Frank requirements that the derivative market be regulated. 60 regulations are required to be established by the Commodity Futures Trading Commission, and they must be justified by cost-benefit analyses, but this is apparently much more difficult to achieve than one might think.
-- Cost-Benefit Analysis and the Commodity Futures Trading Commission.

- From the Economist, more criticism of Dodd-Frank, and the general trend towards over-regulation and what impact it has on the economy.

- From the Huffington Post, a report on the ability of industry lobbyists to delay the implementation of the "silica rule" which is being considered by the Labor Department: The rule "would limit the amount of breathable silica dust to which workers in the construction and mining industries are exposed. Crystalline silica dust is found in sand and granite, and it has been known for decades to lead to the respiratory disease known as silicosis. Although the regulations would strengthen protections for workers, they're expected to raise costs for businesses that mine or build with materials involving silica."
- Worker Safety Rule Under Review at OIRA for Over a Year: A Tale of Rulemaking Delay.
- Click here for the status of the review.

John McCain thinks the US should use its air power in Syria

In 2302's discussion of presidential foreign powers several justifications - doctrines - used by different presidents were mentioned. A more recent argument has been the Responsibility to Protect doctrine, which was used to justify US intervention in Libya.

Senator McCain invokes a similar justification for intervention in Syria, he also ties it into the conflict with Iran.

Stanford Guilty

For 2302's upcoming look at the judiciary - a recently completed trial. Perhaps you heard of it?

Why does health care cost so much more in the US than in other countries?

This sounds like a silly answer to a silly question, but its because prices are higher. We pay more for procedures that cost less elsewhere. If we want to reign in the high costs of health care, we have to cut what things cost - which cuts into someone's profits and salaries of course. There are constituencies that oppose those things.

- Its the prices stupid.
- Commentary from Wonkblog.

Can the President kill anyone he chooses, even if it denies an American citizen due process rights?

That seems to be what Attorney General Holder argued in a recent speech, a power he argues is a necessary consequence of the war on terror, and a component of the president's inherent power of commander in chief:

Some have called such operations “assassinations.”   They are not, and the use of that loaded term is misplaced.   Assassinations are unlawful killings.   Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

 

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.  

 

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.   Where national security operations are at stake, due process takes into account the realities of combat.

 

Here, the interests on both sides of the scale are extraordinarily weighty.   An individual’s interest in making sure that the government does not target him erroneously could not be more significant.   Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

This subject straddles 2301 and 2302 since it concerns both the procedural rights that American's have - those that are spelled out in the 4th - 8th Amendments of the Bill of Rights - and the loosely defined military powers of the President. Here is an area where they conflict and the Obama Administration - along with most any other administration I imagine - would argue that his powers trump due process rights.

2302s ought to read the speech in order to hear what the attorney general is saying about the increased efficiency of the executive branch's military and surveillance powers after the considerable reorganization it went through following 9/11.

For detail and critiques read these:

- Holder Defends Executions Without Charges.
- So we should just trust that the president wont assassinate us?
- Reviving the Constitution.

- On targeted killings, Holder strikes out.
- Not so innocent abroad.

8 - Written Assignment GOVT 2301 Spring Semester

Since we will be looking at civil liberties this week - which includes religious liberties - its appropriate to look at the recent controversy over the proposed rule regarding contraception coverage. Previous posts have focused on the political aspects of this controversy, but I want you to think about the constitutional questions it raises in light of previous Supreme Court decisions regarding the extent of these protections.

The truth is that the free exercise of religion has in fact been limited many times over the course of American history if the Supreme Court has ruled that the greater interests of society overrules it. This week's power points contain examples. One of the more famous was the 1878 decision to uphold laws against polygamy despite the fact that Mormons practiced polygamy as part of their religious beliefs.

Since the contraception rule has been announced, commentators have looked at the case of Employment Division v Smith to get an idea about how the current court might handle a proposed constitutional challenge. In brief, the court ruled that laws against peyote use - which led to the firings of two members of an American Indian tribe who had ingested peyote during a religious ritual - took precedence over their claim of religious freedom. This was because the laws were neutral to religion and the purpose of the law represented a "compelling public purpose" that government has the right to pursue.

Since the rule has yet to be finalized, or passed, there is nothing for the court to actually review. We don't know what an actual dispute might look like, but we do know - based  on the last week's written assignment - that the Texas Attorney General is filing suit against the proposed rule. So based on what we know about the rule, and how the court's have rule don previous cases, how might they rule on this case? Try to figure out what arguments will be offered on either side.       

8 - Written Assignment GOVT 2302 Spring Semester

Water Policy in Texas

I've mentioned in class several times that I intend to focus attention on the water policy in the state and I've had a small number of posts about recent events related to water availability in the state. Now I want you to write about the subject.

Since this is 2302, and we're focusing on executive institutions at the moment, I want you to do a little research and figure out two things. First, what are the precise issues facing the state - as well as local governments - about water, and second, what institutions exist to develop and implement these policies?

Based on what you find out, are we in the middle of a crisis? And how capable is the state to handle this crisis if so?

Here are a few links to get you going:

- Texas Public Policy Foundation - Water.
- Texas Water Matters.
- Water Policy in Texas.
- Texas Water Development Board - Policies.
- Senate Committee on Water Policy.
- Conference on Water Policy.

Issa set his sights on the chair of the Postal Regulatory Commission

checking, balancing, oversighting, etc ....

From the Hill:

Key lawmakers have expressed concern that the Postal Service’s top regulator is spending too much time on the road at a time when the agency faces serious financial challenges.

Rep. Darrell Issa (R-Calif.), the chairman of the House Oversight Committee, and Sen. Tom Carper (D-Del.) have suggested that Ruth Goldway’s trips are hampering the Postal Regulatory Commission’s (PRC) ability to offer advice about proposals that would change how mail is delivered in the United States.

Goldway, who has served as chairwoman of the PRC since 2009, is currently attending a postal event in Switzerland, her third trip to that country in the past year. She has also traveled, in that same time span, to Belgium, China, Portugal, Puerto Rico and Scotland.

Blunt Amendment Defeated

Story in The Hill. The amendment would have been added to the transportation bill, and would have overturned Obama's contraception mandate.

Texas political maps have been accepted (I think) and the primary has been set for May 29

A brief story in the Houston Chronicle. Minority groups still claim the plans dilute minority group representation, so the story might not be over.

All maps can be found on District Viewer. Click on select plans then look for Court Ordered Interim Congressional Plan, House Plan, and Senate Plan.

The fallout form the Texas Supreme Court's water decision

Some thoughts from the San Antonio Express-News, more litigation and higher water costs:


The court decision raises numerous questions for EAA officials and Texans who rely on the Edwards Aquifer. The ruling will have widespread impact on other water districts as well.

Can every homeowner who has a lot over the aquifer now seek permission to drill a well and win compensation if the request is denied? Has the statute of limitations for seeking new pumping permits expired?

EAA officials may file a motion for reconsideration in an effort to learn more about the court's reasoning.

EAA Chairwoman Luana Buckner said the worst-case scenario is five or six years of lawsuits and takings rulings. That could drive up the cost of Edwards water dramatically.

Property rights advocates are cheered by the ruling, but the decision did not clarify what set of circumstances constitutes a taking.

Some random posts on state and local matters

For 2301's look at federalism this week. 2302s should read these through to get an idea of the range of executive agencies that exist on all levels of government and what they do:

- The revenue streams of local governments in the DFW area may be limited by the end of the Barnett Shale boom. Lower natural gas prices might be benefiting consumers, are hurting local governmental revenues.

- The Electric Reliability Council of Texas (ERCOT) warns that the state's electricity grid (click here info on the grid from ERCOT) will be, once again, under severe stress this summer. The National Weather Service is predicting another brutal summer, which will lead to more AC use, and more drain on the grid. ERCOT says it is working with the Public Utility Commission of Texas to avoid blackouts. 

In case you did not know this, Texas has its own grid - click here for why, and here for what the grids in the US look like. Because Texas has its own grid, it is "exempt from most regulation by the Federal Energy Regulatory Commission, the Beltway agency that governs the transmission of electricity from state to state—say, by mandating transmission standards, or requiring that prices be listed in public forums."

- A Texas legislator argues that the traditional curriculum does not reach all students. Instruction in math and sciences ought to take this into consideration. She argues in favor of additional funding for vocational programs and the Texas Workforce Commission seems to agree.

- There are disputes in San Antonio over how transportation funds approved by a 2004 election ought to be spent.

Are we looking at the wrong depression when we try to figure out how to deal with economy?

Economist Stephen Davies suggests that we are, and that the current recession - or whatever it is - look more like the Long Depression of 1873 - 1879, than the Great Depression of the 1930s. This matters because our policy responses as of yet has assumed that the factors driving the current economy are similar to those of the 1930, but these responses might be the wrong ones.

Here's his rationale: What we are going through is a prolonged global contraction driven by the disruptions caused by ongoing consequences of shifts in technology, not a sharp decline in economic activity driven by a lack of liquidity (capital). The same shifts were occurring in the late 19th Century. New technologies replaced the old and the disruptions caused very real pain on those not able to adjust, but ultimately benefited those who could, as well as the country as a whole:

. . . the 30 to 40 years after 1870 saw the advent of technologies that would define modern life, including electricity, the internal-combustion engine, the telephone, the diesel engine, and the modern petroleum industry.

As a result, the official figures are seriously misleading. While nominal wages stagnated or declined, real living standards increased because of the falling cost of products. Output increased, but this is not captured unless one applies a GDP inflator to account for the increasing value of money. So the Long Depression of the 1870s and 1880s was not a simple story of economic standstill.

So what happened? Essentially a set of innovations in technology and business organization made in the later eighteenth and early nineteenth centuries had exhausted their potential to raise productivity and growth by the 1860s. This, combined with mistaken policies, had led to malinvestment and a significant buildup of debt by the early 1870s in both Europe and the United States.

What followed, Irving Fisher argued, was a crisis brought about by the realization that many investments were not going to pay enough and the consequent need for sustained “deleveraging” (paying back or writing off of debt). At the same time there was a burst of technological and organizational innovation. This increased productivity and created many new products but also led to large adjustments as older industries and forms of employment shrank, prompting a large movement of labor. This took some time, so the costs of the transition in human terms were significant.

Independent Payment Advisory Board repealed in the House Subcommittee

A bill repealing the Independent Payment Advisory Board, which was designed to curb growth in Medicare spending passed the Energy and Commerce Health subcommittee in a 17-5 vote.

Story in The Hill.

Some Thoughts on Jury Duty

I've yet to build up sufficient information on the jury system for 2302s- which is a major omission I'll try to correct this semester - but there are a few thoughts on jury duty from Andrew Sullivan's site - and places he links to - to get something kick-started.

A writer at Slate wonders why people don't enjoy the opportunity to do something different for a few days, and offers this indictment: "I feel like as a society we've coordinated on a pointless anti-social norm that you're some kind of sucker if you're willing to just smile and do what the judge wants even though there are no really good self-interested reasons to want out." The author offers the following link as a guide for those who want to opt out: be verbal, be subtle and be biased. The story refers to the American Society of Trial Consultants.

A response points out that not everyone can take significant time off of work. This is especially true for service on grand juries - the people who decide what cases go to trial. It always seemed tome likely that this introduces tremendous bias in the criminal justice system. There are certain to be significant demographic differences between the type of people who can and cannot serve on grand juries. It seems likely that this has consequences for what cases do and do not go to trial.

The jury remains one of the more interesting institutions in American government - where else might the bulk of population have their opinions heard in the actual operations of government?