More on the evaluation of open carry policies

This builds off the post from yesterday. Both from the Texas Tribune.

- Six Months In, Few Open Carry Complaints.

So far, officials say, the newly allowed open carry of handguns hasn't spawned any major incidents.

“I don’t know of any instances where there has been violence, arrests, disturbances that have taken place,” said Kevin Lawrence, executive director of the Texas Municipal Police Association. “I think it’s been amazingly quiet up to this point.”

In February 2015, as the Legislature considered making Texas the 45th state to allow the open carry of handguns, 75 percent of surveyed state police chiefs said they opposed the new law.

James McLaughlin, the executive director of Texas Police Chiefs Association, said that at the time his organization’s members worried that open carry might turn carriers into easier targets.

“If the bad guy goes into a place, the first person they’re going to shoot is a uniformed officer,” he said. “The second person they’re going to shoot is the one they see has a gun.”

But McLaughlin, too, said he had heard of no incidents in which the new law played a major factor.

The Dallas shootings, however, rekindled arguments about revisiting the open carry laws, which state Rep. Diego Bernal, D-San Antonio, called "Republicans thumbing their nose at law enforcement."

Rep. Larry Phillips, R-Sherman, who helped push open carry through the Legislature, said he and his colleagues did weigh the opinion of law enforcement. Despite the opposition from chiefs, rank-and-file members Phillips spoke to were generally receptive to the bill, he said.

- Black Gun Owners in Texas Decry Racial Bias.

The tensions surrounding black gun ownership have a long historical record in the United States, according to research from the National African American Gun Association. Dating back to the 17th century, French and British colonies have openly prohibited gun ownership among black people and Native Americans. And during slavery and the post-Civil War period, states in the South imposed strict laws against black gun ownership that lasted through the Civil Rights Movement. When California’s legislature banned open carry in the 1960s, it was in response to the Black Panthers openly carrying guns.

Black gun owners also are frustrated with what they see as indifference from their allies. The National Rifle Association, the nation's most powerful gun rights organization, took two days to comment on Castile's death, only posting a statement on Twitter calling the shooting "troubling" and saying it "must be thoroughly investigated" after a swell of online outcry.

“The NRA is an organization that has a bunch of old white guys, and honestly, I don’t think they have the tools and minorities in the organization to address these types of issues,” said Cargill, who said he's a national member of the association. “They don’t have enough diversity in their staff and leadership. Probably, they were afraid to make the wrong statement.”

The NRA did not respond to The Texas Tribune’s requests for comment. A spokesman for the Texas State Rifle Association said in a statement that while the group does not speak for the NRA, "every law-abiding citizen, no matter their race, creed, or sexual preference, has a right to protect themselves."

Racial profiling and gun ownership had emerged as hot-button issues during last year's legislative session when state lawmakers were debating the open-carry law that went into effect in Texas this January.

Amid concerns that minority gun owners would be racially profiled by officers, Sen. Don Huffines, R-Dallas, introduced an amendment that would prohibit officers from stopping someone solely because they are visibly carrying a handgun. The measure, which eventually passed, attracted support from Democrats who said it would help prevent racial profiling. Conservatives said it also was necessary to protect the Fourth Amendment rights against unreasonable search and seizure of legal gun owners.

Introducing: Police - The Law Enforcement Magazine

For our occasional look at the media - a specialty magazine for the police community.

- Click here for it.

Here is one of their articles. It involves the Federal Order of Police - one of the national largest intergovernmental unions.

- FOP Wants Justice Department to Investigate Dallas Sniper Attack as Hate Crime.

The nation’s largest police union is calling on the Justice Department to investigate the fatal shooting of five police officers in Dallas Thursday night as a hate crime — and is criticizing President Obama for his response to the shootings so far.

“We’d like to see the president make one speech that speaks to everybody instead of one speech that speaks to black people as they grieve and one speech that speaks to police officers as they grieve,” said Jim Pasco, the executive director of the Fraternal Order of Police, which represents 330,000 officers. “We don’t need two presidents, we only need one. We need one who works to unify the United States.”

From the Gallup Poll: Majority in U.S. Prefer State Over Federal Government Power

For out look at federalism.

- Click here for the article.

A majority of Americans (55%) favor the theory of government that concentrates power in state governments, outnumbering the 37% who favor power concentrated in the federal government. The latest update of this question -- asked only twice before, in 1936 and 1981 -- is from a June 14-23 Gallup poll. It comes as nearly half of the states sue the federal government over its directive to grant transgender students the right to use bathrooms and locker rooms that correspond with their gender identity. Schools that don't comply could risk losing federal funding.

Americans' preference for state power was similar in 1981 -- the first year of the presidency of Ronald Reagan, who declared his support for states' rights on the prior year's campaign trail. In contrast, Americans slightly preferred federal power in the mid-1930s, after President Franklin D. Roosevelt unveiled a sweeping series of programs that increased the role of the federal government in Americans' lives.

The current lawsuit over transgender bathrooms, which is being brought predominantly by GOP-controlled states, is one of many battles states have fought against President Barack Obama's administration. Obama was unsuccessful this year in defending his executive order on allowing undocumented immigrants to stay in the U.S. but won the fight to uphold the Affordable Care Act he signed into law in his first term.

Views on this question are far from politically homogeneous. The majority of Democrats (62%) support concentrating power at the federal level, while majorities of independents (56%) and Republicans (78%) favor concentrating power at the state level.

Democrats' preference for federal power reflects their party's underlying ideology and is likely related to having a Democrat in the White House. Meanwhile, about two in three state governors in the U.S. are from the GOP, and Republicans are more than four times as likely to prefer concentration of power at the state versus the federal level.

From the Dallas Morning News: Open carry creates confusion during Dallas police ambush, but supporters say law works

For our look at policy evaluation in the section on public policy: the consequences of open carry in crime scenes.

- Click here for the article.

When rifle shots rang out in downtown Dallas during Thursday night's protest, some of the demonstrators were also carrying rifles.

In the ensuing chaos, one of them was labeled a "person of interest" after police released a photo of him carrying an AR-15 rifle. Others were stopped and questioned by police.

It was not immediately clear Saturday whether any of those who were legally armed delayed or hampered the police response to the shooter, Micah Xavier Johnson, 25, of Mesquite. Dallas police did not respond to questions.

But Dallas Mayor Mike Rawlings said: "It's logical to say that in a shooting situation, open carry can be detrimental to the safety of individuals."

Johnson, a former Army soldier, was killed early Friday when police used a robot to detonate a bomb near him. That was after he killed five police officers in a rampage through downtown.

It is legal in Texas to openly carry rifles and has been for decades. People with rifles have been spotted at recent public protests across the state.

Rawlings said Dallas police Chief David Brown told him that people running through the shooting scene with rifles and body armor required officers to track them down and bring them to the police department. Whether that was time that could have been spent trying to find and stop the shooter is something police will have to comment on, Rawlings said.

. . . But C.J. Grisham, president of Open Carry Texas, said police should be able to separate the good guys from the bad guys in such a scenario because "the bad guys are the ones shooting."

"If you can't identify a threat, you shouldn't be wearing a uniform," he said.
Grisham said some in law enforcement look at law-abiding gun owners as a threat.
"It's not that difficult to tell the difference between a bad actor and a good actor," he said. "The good guys are going to obey commands, the bad guys are not."

Law enforcement organizations such as the Dallas Police Association have generally opposed the state's new open carry law regarding handguns, which went into effect this year.

 

From the Texas Tribune: Texas Supreme Court Halts Children's Therapy Cuts

Some checks and balances - also related to Texas' tendency to cut social services.

- Click here for the article.

The Texas Supreme Court on Friday delivered a temporary, last-minute victory to families of children with disabilities who want to stop sweeping budget cuts to a state-funded children’s therapy program.

State lawmakers last year approved $350 million in budget cuts for Medicaid programs that provide physical, speech and occupational therapy to disabled children. Blocked once before by a district court order, the cuts were scheduled to take effect July 15 after an appellate court ruled in April that Texas could move forward with them.

The Supreme Court’s order will delay those cuts, which have been tied up in court for nearly a year, once again.

The disabled children’s families, joined by therapy providers who are paid by Medicaid, the federal-state insurance program for the poor and disabled, sued the state over the pay cut, saying it would force medically necessary businesses to close and leave fragile children without access to health care.

Texas lawmakers ordered the cuts arguing that the state overpaid for those services. Many in-home therapy providers who treat children covered by Medicaid say the payment reduction would amount to a roughly 20 percent revenue cut that would force them out of business.

In the year since the budget was passed, dozens of lawmakers who voted for it have asked Texas officials to delay the cuts in order to study their projected effects more closely, for fear the move would jeopardize children’s access to health care.

The Supreme Court’s temporary injunction is not a ruling on the validity of the Medicaid cuts, but it buys time for the groups opposing the cuts to continue their aggressive lobbying campaign to have lawmakers revisit the issue.

From the TexasTribune: Appeals Court Tells Texas Foster Care Reforms Must Continue

Federalism in action: 

- Click here for the article.

Texas must continue drafting court-ordered plans to fix its broken foster care system, according to a new order from the U.S. 5th Circuit Court of Appeals.

State officials have repeatedly gone to court seeking to avoid compliance with a ruling last year by U.S. District Judge Janis Jack finding the state’s long-term foster care system in such disrepair that it systemically violated children’s civil rights.

The Texas Department of Family and Protective Services, represented by lawyers from the Texas Attorney General’s office, has argued that Jack lacked standing to order changes to the state’s foster care system. State officials also charged that her ruling ignored years of progress made by the agency.

Despite a series of setbacks in appeals court, Texas officials most recently hoped to derail the plan for reforms that is currently being overseen by outside appointees.

Justices on the bench of the 5th Circuit, considered one of the country’s most conservative appellate courts, found that lawyers for the state “failed to demonstrate that they have a ‘clear and indisputable’ entitlement to relief” from complying with the reform process.

The latest on budgeting in Texas

All from the Texas Tribune:

- Oil Patch Schools Facing Budget Nightmare.

In December 2014, the week Pam Seipp became interim superintendent of Runge schools, the tiny South Texas district held a symbolic groundbreaking for schools and sports facilities to be paid for by a $22 million bond that local voters overwhelmingly approved just as oil prices began to slip.

Seipp’s main responsibility since then?

“The bearer of bad news,” she says.

Four months into the job, she had to inform the board of trustees that local property values were expected to drop by more than half from the previous year because of a major slowdown in oil and gas drilling, and that the $6 million savings account the 300-student district had built up during the recent boom would quickly evaporate. She delivered a similar message this year with property values expected to plummet another 42 percent amid the lingering low oil prices that have brought drilling in the state — and across the U.S. — to a near halt.

The district is now operating on a deficit budget and moving to restructure its bond because it can’t afford payments.

“It’s not been a good experience for me,” Seipp said. “I can hardly wait ‘til they get a permanent person here.”

Runge is a worst-case example of the budgetary difficulties facing school districts in oil producing regions across the state, where a drilling frenzy raged for nearly a decade until oil prices tanked.

- State Leaders Ask Agencies to Cut Budgets by 4 Percent.

Texas' top elected officials are asking state agencies to scale back their budget requests by 4 percent, seeking to further rein in state spending for the 2018-2019 cycle.

In a letter dated Thursday, Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Joe Straus said agencies should propose the 4 percent reduction as a "starting point for budget deliberations."

"Limited government, pro-growth economic policies and sound financial planning are the key budget principles responsible for Texas' economic success," the three wrote. "It is imperative that every state agency engage in a thorough review of each program and budget strategy and determine the value of each dollar spent."

The letter hints at some priorities for lawmakers heading into next session, making several exceptions to the 4 percent cut. They include funds for public schools, border security, Child Protective Services and mental health resources. The exemptions also include public-employee pensions, Medicaid and dollars needed to meet debt service requirements for bond authorizations. Agencies are also being asked to submit information about zero-based budgeting, a practice in which all expenses must be justified in a new cycle. Patrick and state Sen. Jane Nelson, a Flower Mound Republican who chairs the Finance Committee, have been proponents of zero-based budgeting.

Overall, the letter makes a plea for holding back the growth of state government as Texas continues to deal with a downturn in the oil and gas industry.

- Analysis: No Political Benefit if Voters Can't Feel Tax Relief.

If a state officeholder of any political persuasion promises to cut your property taxes, demand proof.

They made their most recent attempt during last year’s legislative session with a constitutional amendment increasing the homestead exemption. Their hope was that school property tax bills would drop.

Voters approved the amendment in November, giving the average homeowner a $126 tax break.

Hey, if you can’t make it rain, make it sprinkle.

Lawmakers tried the rain thing back in 2006, rewriting property and franchise and other tax laws to bring relief to taxpayers.

State Sen. Paul Bettencourt, a Republican who was Harris County’s tax assessor-collector at the time, watched the benefit get swallowed by “appraisal creep” — the steady increase of property values in a booming state.

This is the problem for Texas lawmakers. They want to get a leash on property taxes statewide, even though there is no state property tax. It requires them to restrain local governments. The local governments, with plenty of evidence, point to expensive state government mandates that drive up their costs.

Your governments, taken together, operate as a circular finger-pointing squad.

From The Texas Tribune: Analysis: In Texas, the Loyal Opposition is Dysfunctional

The lack of a functioning two party system in the state seems to be a recipe for corruption.

We discuss Texas' tendency towards one party rule in GOVT 2306. 

- Click here for the article.

Republicans who’ve been behaving themselves might be wigging out about the escapades of some of their top statewide officials, but they’re not talking about it.

And the Democrats, who ought to be having a hoedown right now, can’t seem to find anyone with sufficient gravitas to make the opposition’s voters hesitate.

The presidential race is different from the state races because it’s competitive. National politics remains hypersensitive to slights and gaffes; Texas politics — especially in general elections — seems numb to those things.

Elsewhere, there’s a Hillary Clinton for every Trump, and the slightest error can put a national figure on the broiler. In Texas, where the partisan competition is almost imaginary, a conservative officeholder can get into all kinds of political trouble without threat from the other party.

Pushback is useful even when it falls short. Trump wasn’t exactly toppled when U.S. Rep.Filemon Vela, D-Brownsville, told him to "take your border wall and shove it up your ass." But it bought people a moment to sort out their thoughts about Trump’s big fence.

That’s something. It’s what checks and balances are meant to do — to freeze things, if only for a second, for a reconsideration of whether an idea or action is really a good idea.

Talking about the troubles of confederates is so repellant to people in the civics business that they prefer ignorance over having to express their own views.
This is not a Republican malady; it’s politics.

Democratic officeholders in the 1980s were pretty damned quiet when Speaker Billy Clayton and Attorney General Jim Mattox were indicted. Both were eventually acquitted, too. Clayton won another term as speaker. Mattox won another term as the state’s top lawyer. Sometimes, these things pass.

The Texas Democratic Party’s convention lands at a moment when the state’s Republicans are feverishly manufacturing topics for the opposition party to talk about.

In that interim period between full Democratic control of Texas and the full Republican control we have now, there was an opposition party making noise at every turn. Ask Democrat Garry Mauro, who as land commissioner was accused of running Bill Clinton’s Texas campaign out of his state offices, or Kay Bailey Hutchison, who was accused of handling too much of what should have been done in her campaign through her office of state treasurer.

Mauro was never indicted. Hutchison was acquitted. But both were scorched by opponents in the other party throughout their ordeals. Mauro, whose party was waning, went on to lose a lopsided 1998 governor’s race against George W. Bush. Hutchison, whose party was waxing, won a special election and then three full terms in the U.S. Senate.

It’s not that the bellowing from their political enemies did them in — it’s that it constrained their behavior. You keep your mitts off the cookie jar when the folks are watching, but what if they’re not around?

Right now, for Republican Texas officeholders, the folks are not around.

From the American Constitution Society: Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law

A recently published book talks about how organized citizens groups have been able to transform constitutional law by developing and pursuing court cases that force the Supreme Court to reconsider the meaning of the Constitution.

- Click here for a summary from the author.

President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the seat vacated by Supreme Court Justice Antonin Scalia’s death has many wondering what we might expect from a Court with a liberal majority. It’s been a long time; the Court has not had a majority of liberal justices since the early 1970s. If Republicans maintain their current obstructionist stance, that may not change until and unless Hillary Clinton wins the presidential election. But even if Garland is ultimately confirmed, we ought not to expect major changes from the Court. Stare decisis places significant constraints on the ability of any Court to change direction; absent the rare overruling of precedent, most of the action is at the margins. The margins are important, to be sure, but they are margins.

More to the point, as I show in my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, major transformations of constitutional law are generally attributable not so much to new Court personnel as to the extended, in-the-trenches work of citizens working in association with like-minded citizens to lay the ground for change, most often outside the federal courts altogether. Constitutional law changes slowly, from the ground up, not suddenly, from the top down.

Take marriage equality. In 1972, the Supreme Court in Baker v. Nelson summarily dismissed a petition arguing that the Constitution requires recognition of same-sex marriage as not even presenting a substantial federal question. Yet in 2015, the Court in Obergefell v. Hodges recognized a constitutional right to marriage equality. One cannot explain that remarkable shift simply by examining the changed personnel on the Court. The Court in 2015 was, if anything, more conservative than the Court in 1972. Rather, one must look at the work gay rights groups did in a wide variety of forums beyond the federal courts.

Gay rights activists did not immediately ask for marriage. They started small and worked incrementally, seeking recognition in state family law of parental rights of gay and lesbian parents, urging private and public employers at the state and local levels to extend modest work-related benefits to same-sex domestic partners, and lobbying for anti-discrimination laws to include protection for gays and lesbians. Only when gay rights groups had made substantial progress in particular states did they seek marriage recognition—and even then only in the most favorable states. They also worked with public relations experts to determine how best to argue for marriage equality in public referenda, learning from their losses and adjusting their strategies as they went. Other groups pressured the media and entertainment industries to represent gays and lesbians more positively, and fought for legal protections that made it safer for gays and lesbians to “come out.” All of these changes were essential steps along the way to Obergefell, and they were taken deliberately, strategically, and over more than two decades. It’s that work that explains the constitutional recognition of marriage equality.

In my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, I tell this story, tracing the strategic choices and incremental victories and losses that ultimately brought us marriage equality. I also show how the individual right to bear arms, dismissed as a fraud by Chief Justice Warren Burger in 1990, became a constitutional right in 2008. Here, too, the key lies in civil society, and in particular in the National Rifle Association, almost certainly the most effective civil rights organization in the United States today. The story of how the NRA prompted recognition of an individual right to bear arms after courts had denied one existed for 100 years has striking parallels to the marriage equality campaign and provides important lessons for anyone seeking constitutional change, whether in a liberal or conservative direction.

Finally, I ask what made President George W. Bush curtail so many of his most aggressive counter-terrorism measures by the time he left office, given the history of courts and Congress deferring to presidents in times of crisis. Here again, the answer lies in the work of civil society groups—such as the Center for Constitutional Rights, the ACLU, Human Rights First, and Reprieve. The challenges human rights groups faced were quite different, but they, too, had to seek alternative forums from the Court itself if they were to succeed in pushing back against Bush and Cheney.

Through these three accounts, I seek to show that the real movers of constitutional change are not the elite lawyers who argue before the Supreme Court, nor the Justices themselves—although both sets of actors of course play a part—but ordinary citizens, working together to make their own shared vision of constitutional ideals into constitutional law. In this sense, you might even say, it is “citizens united” who are the true drivers of constitutional change, and the real “living Constitution.” The book underscores the central importance of groups like the American Constitution Society to the vitality of our Constitution, argues that healthy constitutionalism requires, in addition to the separation of powers and judicial review, a robust and engaged civil society, and provides a template for action.

From Vox: How America became the most powerful country on Earth, in 11 maps

For our look at foreign policy making. The US took specific - and highly aggressive - steps over the course of its history to become dominant.

- Click here for the article.

Here's one image:




And here's another:

From the NYT: Obama After Dark: The Precious Hours Alone

An interesting look at Obama's decision-making style.

- Click here for article.

Mr. Obama calls himself a “night guy,” and as president, he has come to consider the long, solitary hours after dark as essential as his time in the Oval Office. Almost every night that he is in the White House, Mr. Obama has dinner at 6:30 with his wife and daughters and then withdraws to the Treaty Room, his private office down the hall from his bedroom on the second floor of the White House residence.

There, his closest aides say, he spends four or five hours largely by himself.

He works on speeches. He reads the stack of briefing papers delivered at 8 p.m. by the staff secretary. He reads 10 letters from Americans chosen each day by his staff. “How can we allow private citizens to buy automatic weapons? They are weapons of war,” Liz O’Connor, a Connecticut middle school teacher, wrote in a letter Mr. Obama read on the night of June 13.

The president also watches ESPN, reads novels or plays Words With Friends on his iPad.

Michelle Obama occasionally pops in, but she goes to bed before the president, who is up so late he barely gets five hours of sleep a night. For Mr. Obama, the time alone has become more important.

“Everybody carves out their time to get their thoughts together. There is no doubt that window is his window,” said Rahm Emanuel, Mr. Obama’s first chief of staff. “You can’t block out a half-hour and try to do it during the day. It’s too much incoming. That’s the place where it can all be put aside and you can focus.”

From Vox: The single most important fact about American politics

I can't recommend this highly enough. It'll be a part of my look at political participation and political parties for some time. It tries to get to the root of party polarization in the US. These are observations based on a recent study by the Pew Research Center - click here for the study.

- Click here for the article.

Perhaps the single most important fact about American politics is this: the people who participate are more ideological and more partisan, as well as angrier and more fearful, than those who don't.

Here is one of the factors the author sees as especially problematic. It's not just that the parties are divided ideologically, they hate and fear each other:

From In These Times: The SEC’s Danger of Regulatory Capture How the “cozying up” at the SEC is just another example of regulatory capture.

For our look at regulatory agencies and regulatory capture.

- Click here for the article.

The phrase “regulatory capture” shrouds a serious problem in vaguely academic jargon, making it seem like unimportant esoterica rather than anything noteworthy. But the phenomenon that the euphemism represents is, indeed, significant: When a government agency is effectively captured by—and subservient to—the industry that agency is supposed to be objectively regulating, it is a big deal.

A perfect example of regulatory capture came earlier this month from the Securities and Exchange Commission—the law enforcement agency that is supposed to be overseeing the financial industry.

As part of that responsibility, the agency's top financial examiner, Andrew Bowden, warned last year of rampant fraud, corruption and abuse in the private equity industry, which today manages tens of billions of dollars of public pension money for states and cities across the country.

“When we have examined how fees and expenses are handled by advisers to private equity funds, we have identified what we believe are violations of law or material weaknesses in controls over 50 percent of the time,” Bowden said in that 2014 speech.
That, unto itself, doesn't sound like regulatory capture—in fact, it sounds like quite the opposite. But that's just the prelude to the real story.

Less than a year after raising those red flags, Bowden appeared at a Stanford Law School conference that the school said was designed “to encourage dialogue among the SEC; academics (and) members of the private equity and venture capital industries.” At the March event, Bowden was caught on film expressing his deep affinity for the same industry he had only months before said was plagued by rampant corruption.

"This is the greatest business you could possibly be in—you’re helping your clients,” he said. “The people in private equity, they’re the greatest, they’re actually adding value to their clients, they’re getting paid really really well.” Bowden then added: “I have a teenaged son, I tell him, “Cole, you want to be in private equity. That’s where to go, that’s a great business, that’s a really good business. That’ll be good for you.” That aside was met with an audience member telling Bowden: “I’d love to hire your son.”

Upon seeing the video, former bank regulator William Black wrote: “I would have asked for the resignation of any of my staff who made remarks even remotely like Bowden’s remarks. As financial regulators, particularly if we have the disadvantage of coming from the industry, we maintain at all times a professional distance from those we regulate. The remarks about his son are so beyond the pale that they demonstrate he is incapable of even pretending to maintain such a professional distance. His cheerleader nature is on full display.”

For more:

- Behind the SEC’s Revolving Door.
- The SEC's Revolving Door.
- Capture at the SEC? Let’s Pause for a Sec.
- Why the S.E.C. Didn’t Hit Goldman Sachs Harder.

From Politico: The Supreme Court’s Conservative Run Is Over This year’s final decisions suggest we’ve passed a turning point in the Court’s rightward march.

This likely depends on the result of the November election - but this seems to be the convention wisdom.

- Click here for the article.

. . . conservatives may find themselves in a position analogous to the one that liberals occupied in the 1970s and '80s. For several decades before that, the Supreme Court had been generally friendly to progressive causes, and liberals and conservatives alike had come to see the Supreme Court as a liberal institution. On a broad range of issues, constitutional law moved to the left. But many of the most ambitious left-leaning constitutional causes of that era ultimately fell short of their goals. The Supreme Court invalidated deliberate racial segregation in the 1950s and '60s, but it refused in the '70s to take the further step of requiring affirmative steps to end de facto segregation—with the result that many liberals animated by a vision of racial integration came to see their prior victories as hollow and the ultimate result as disappointing.

Similarly, the court in the 1970s closed the door on various liberal strategies for using constitutional law to effect economic redistribution. During the Nixon administration, leading liberals took seriously the idea that the Constitution should be interpreted to guarantee a minimum income to all adult citizens, or at least that public schools must be given equal per-pupil funding regardless of the local property tax bases of the relevant school districts. The mid-20th century era of liberal predominance at the Supreme Court closed without reaching those destinations, and many liberals went through a painful process of adjustment in the decades thereafter, realizing only slowly that the courts were no longer on their side.

The presidential election is still months away, and Clinton’s election is by no means a certainty. But if it happens, a long period in constitutional development will have come to a close. The conservative victories of the past several decades will not be for naught: A great deal of law has changed, and it will not all be unraveled. But the direction will be different. Rather than asking whether abortion and affirmative action will continue, courts will ask about this or that aspect of abortion or affirmative action on the broad understanding that the practice in some form is secure.

For more:The Right-Wing Supreme Court That Wasn’t.

From the Atlantic: Enforcing the Law Is Inherently Violent - A Yale law professor suggests that oft-ignored truth should inform debates about what statutes and regulations to codify.

A central question involving executive power: What is worth killing for?

- Click here for the article.

Law professors and lawyers instinctively shy away from considering the problem of law’s violence. Every law is violent. We try not to think about this, but we should. On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws.

It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.

The statute or regulation we like best carries the same risk that some violator will die at the hands of a law enforcement officer who will go too far. And whether that officer acts out of overzealousness, recklessness, or simply the need to make a fast choice to do the job right, the violence inherent in law will be on display. This seems to me the fundamental problem that none of us who do law for a living want to face.

But all of us should.

From the New Yorker: HOW TO STEAL AN ELECTION - The crazy history of nominating Conventions.

More detail for our - brief - look at presidential elections.

- Click here for the article.

Since 1968, no one in either party has successfully defeated at the Convention the candidate who won a plurality of the primaries and the caucuses. In 1972, George McGovern, who’d chaired the Democratic commission that rewrote the Party’s delegate-selection rules, won its nomination despite an “Anybody but McGovern” challenge at the Convention, in Miami. McGovern lost to Nixon in a landslide: he carried just one state. In 1976, at the G.O.P. Convention, in Kansas City, Ronald Reagan challenged Gerald Ford and, very narrowly, lost. Jimmy Carter, who’d won a lot of primaries, won the Democratic nomination and even the election, but after his failed Presidency many Democrats regretted binding their delegates to the primaries. In 1980, at the Democratic National Convention, in New York City, Ted Kennedy tried to challenge Carter but was defeated by the rules. That’s why, in 1984, the D.N.C. invented superdelegates, high-status Party officials who are pledged to no one candidate. This year, a lot of Republicans are regretting binding their delegates to the primaries. The rules committee meets the week before the Convention. Hundreds of anti-Trump Republicans have formed an organization called Free the Delegates and begun plotting a strategy to block his nomination by adding a “conscience clause” to the rules, unbinding the delegates. Paul Ryan said that he wouldn’t object: “It’s not my job to tell delegates what to do.” This tactic has been tried before. A savvy souvenir collector could even hawk on the streets of Cleveland the buttons that Kennedy supporters wore in 1980, which read “free the delegates.”

For more: EXTREME CONVENTIONS: SAN FRANCISCO, 1964, AND CLEVELAND, 2016.

From Business Insider: The 7 most important military decisions the next president will make in 2017

For our look at the powers of the Commander in Chief. The next one anyway.

- Click here for the article.

1. Will the US pressure China to get off of contested islands, force them off with war, or let China have its way?

2. How dedicated is the US to the NATO alliance and deterring Russian aggression?

3. What part of the world is the real priority?

4. What is America’s role in the ongoing fight against ISIS and is there a need for more ground troops?

5. How long will the Air Force keep the A-10?

6. How much is readiness worth and where does the money come from?

7. How many generals and admirals should the US have?

From Reuters: Justice Dept. reviewing Supreme Court immigration decision: Lynch

More checks and balances. Supreme Court decisions are not the end of the story.

- Click here for the article.

The Obama administration is looking into whether it can challenge the Supreme Court's decision to block President Barack Obama's plan to spare millions of illegal immigrants from deportation, U.S. Attorney General Loretta Lynch said Tuesday.

"We will be reviewing the case and seeing what, if anything else, we need to do in court," Lynch told Reuters in an interview.

Lynch did not say what legal options the Obama administration may pursue following a split decision by the Supreme Court justices last week that left in place a block on the executive action by a lower court.

She said any future executive actions Obama may take on immigration would be left to the White House.

From the EFF: Federal Court: The Fourth Amendment Does Not Protect Your Home Computer

A likely future Supreme Court case.

- Click here for the article.

In a dangerously flawed decision unsealed today, a federal district court in Virginia ruled that a criminal defendant has no “reasonable expectation of privacy” in his personal computer, located inside his home. According to the court, the federal government does not need a warrant to hack into an individual's computer.

This decision is the latest in, and perhaps the culmination of, a series of troubling decisions in prosecutions stemming from the FBI’s investigation of Playpen—a Tor hidden services site hosting child pornography. The FBI seized the server hosting the site in 2014, but continued to operate the site and serve malware to thousands of visitors that logged into the site. The malware located certain identifying information (e.g., MAC address, operating system, the computer’s “Host name”; etc) on the attacked computer and sent that information back to the FBI. There are hundreds of prosecutions, pending across the country, stemming from this investigation.

Courts overseeing these cases have struggled to apply traditional rules of criminal procedure and constitutional law to the technology at issue. Recognizing this, we've been participating asamicus to educate judges on the significant legal issues these cases present. In fact, EFF filedan amicus brief in this very case, arguing that the FBI’s investigation ran afoul of the Fourth Amendment. The brief, unfortunately, did not have the intended effect.

The implications for the decision, if upheld, are staggering: law enforcement would be free to remotely search and seize information from your computer, without a warrant, without probable cause, or without any suspicion at all. To say the least, the decision is bad news for privacy. But it's also incorrect as a matter of law, and we expect there is little chance it would hold up on appeal. (It also was not the central component of the judge's decision, which also diminishes the likelihood that it will become reliable precedent.)

But the decision underscores a broader trend in these cases: courts across the country, faced with unfamiliar technology and unsympathetic defendants, are issuing decisions that threaten everyone's rights. As hundreds of these cases work their way through the federal court system, we'll be keeping a careful eye on these decisions, developing resources to help educate the defense bar, and doing all we can to ensure that the Fourth Amendment's protections for our electronic devices aren't eroded further. We'll be writing more about these cases in the upcoming days, too, so be sure to check back in for an in-depth look at the of the legal issues in these cases, and the problems with the way the FBI handled its investigation.

From the Guardian: Why elections are bad for democracy Our voting system worked well for decades, but now it is broken. There is a better way to give voice to the people

Is there a better way for people to make decisions? One that checks sudden fickle urges?

Perhaps we should substitute elections with lotteries.

- Click here for the article.

What kind of democracy is appropriate to an era of fast, decentralised communication? How should the government deal with all those articulate citizens who stand shouting from the sidelines?

Imagine having to develop a system today that would express the will of the people. Would it really be a good idea to have them all queue up at polling stations every four or five years with a bit of card in their hands and go into a dark booth to put a mark next to names on a list, names of people about whom restless reporting had been going on for months in a commercial environment that profits from restlessness?

People care deeply about their communities and want to be heard. But a much better way to let the people speak than through a referendum is to return to the central principle of Athenian democracy: drafting by lot, or sortition as it is presently called. In ancient Athens, the large majority of public functions were assigned by lot. Renaissance states such as Venice and Florence worked on the same basis and experienced centuries of political stability. With sortition, you do not ask everyone to vote on an issue few people really understand, but you draft a random sample of the population and make sure they come to the grips with the subject matter in order to take a sensible decision. A cross-section of society that is informed can act more coherently than an entire society that is uninformed.

Experiments with sortition have been successfully applied in the US, Australia, and the Netherlands. The most innovative country so far is certainly Ireland. In December 2012, a constitutional convention began work in order to revise several articles of the constitution of Ireland. Its members were not just a committee of MPs working behind closed doors, but a mixture of elected politicians and ordinary people: 33 elected politicians and 66 citizens, drafted by lot, from both Ireland and Northern Ireland. This group met one weekend per month for more than a year.

For more: Is It Time to Take a Chance on Random Representatives? Selecting legislators by lottery was good enough for the ancient Athenians. Why not good enough for Congress?

From Slate: The eight-person court is a very different place.

Without Scalia that is.

- Click here for the article.

. . . it was Byron White who was meant to have said that adding a single new justice to the high court always created a whole new court, and this year we are learning that subtracting a single justice might have the same effect. It’s not just one less vote.

There is ample speculation out there that Scalia’s absence has moved Samuel Alito to the vocal right wing of the court, and, as Mark notes, it has perhaps even moved Clarence Thomas to speak at oral argument. One frequently reads that Scalia’s absence has forced the chief justice to forge new consensus and that Kennedy surely seems newly free to be you and me, with the man who so often belittled him gone. Justice Sonia Sotomayor has found a clarion voiceon race and the rights of criminal defendants, Justices Elena Kagan and Stephen Breyer seem to have figured out ways to work the levers and broker improbable deals, and Justice Ruth Ginsburg continues to prove that nothing happens at the court that she hadn’t anticipated for years. We’ve talked a lot about the 4–4 court, but in some ways we are seeing a court that is reconfiguring itself around the loss of a dominant force in a very small world. There is a good deal of retrenchment on the court’s right, some feints back to the center, and the left seems to be testing some boundaries. In a way all of these conversations about the court’s shift to the left this term make me realize that if you spend your whole intellectual life scrapping with just eight other people, they become just a bit too important in shaping how you think and act.

From the Intercept: THE ANDROID ADMINISTRATION Google’s Remarkably Close Relationship With the Obama White House, in Two Charts

Obama's ties with Silicon Valley have been noted before.

- Click here for the article.

When President Obama announced his support last week for a Federal Communications Commission plan to open the market for cable set-top boxes — a big win for consumers, but also for Google — the cable and telecommunications giants who used to have a near-stranglehold on tech policy were furious. AT&T chief lobbyist Jim Cicconi lashed out at what he called White House intervention on behalf of “the Google proposal.”

He’s hardly the first to suggest that the Obama administration has become too close to the Silicon Valley juggernaut.

Over the past seven years, Google has created a remarkable partnership with the Obama White House, providing expertise, services, advice, and personnel for vital government projects.

Precisely how much influence this buys Google isn’t always clear. But consider that over in the European Union, Google is now facing two major antitrust charges for abusing its dominance in mobile operating systems and search. By contrast, in the U.S., a strong case to sanction Google was quashed by a presidentially appointed commission.

It’s a relationship that bears watching. “Americans know surprisingly little about what Google wants and gets from our government,” said Anne Weismann, executive director of Campaign for Accountability, a nonprofit watchdog organization. Seeking to change that, Weismann’s group is spearheading a data transparency project about Google’s interactions in Washington.

From Elizabeth Warren: Corporate Capture of the Rulemaking Process

The possible VP candidate comments on the current state of regulatory capture in the rulemaking process. The process is biased towards corporate interests from the start.

- Click here for the article.

Regulatory capture is a big deal. It is one way in which powerful corporations rig the system to work for themselves—and the rest of America pays the price. The tilt in Congress is pretty much out there for everyone to see, but corporate influence works its magic even better in the shadows—and that’s where rulemaking occurs. This essay focuses on one aspect of this pervasive phenomenon: the capture of agencies as they write the rules.

When it comes to undue industry influence, our rulemaking process is broken from start to finish. At every stage, the process is loaded with opportunities for powerful industry groups to tilt the scales in their favor.

The tilt starts early. For example, a 2011 study of U.S. Environmental Protection Agency (EPA) records from 1994 to 2009 found that industry groups held a virtual monopoly over informal communications with EPA that occurred before proposed rules on hazardous air pollutants were publicly available. On average, industry groups engaged in 170 times more informal communications with EPA than public interest players—communications that occurred before any proposed rules were even written.

Similarly, with financial regulation, the big banks and their friends have been lobbying the agencies aggressively. Following the worst financial crisis in three generations—one that resulted in taxpayers spending hundreds of billions to bail out the big banks—Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act to ensure that a crisis of that sort never happened again. This law included a provision called the Volcker Rule to stop banks from engaging in certain kinds of risky behavior. But before that rule was even written, groups representing Wall Street interests met with federal regulators 419 times, accounting for over 93 percent of meetings between federal regulators and external parties about the Rule. Less than 7 percent of meetings were with individuals and groups representing the public interest.

As rules wind their way through the process, the lobbying intensifies. When proposed rulemaking notices are published and the public has a formal opportunity to weigh in, their views are quickly buried in an avalanche of detailed, well-funded, well-credentialed comments from industry insiders and their highly-paid allies. Those EPA rules on dangerous air pollutants? Industry groups submitted 81 percent of the comments during the notice-and-comment period. Public interest groups submitted 4 percent.

From the Business Insider: Obama's chief of staff brought doughnuts to White House reporters amid tension over a top aide's comments

Apparently it was to make amends.

- Click here for the article.

Barack Obama's chief of staff Denis McDonough on Wednesday apparently brought a box of doughnuts to White House reporters gathered in the West Wing to show them that "we appreciate what you do."

McDonough's gesture came after President Barack Obama's deputy national security adviser, Ben Rhodes, characterized Washington reporters as "27-year-olds" who "literally know nothing" in an interview with the New York Times Magazine.

Rhodes' comments sparked a backlash among the reporters, as well as with Washington's foreign-policy establishment, which he referred to as "the Blob."

. . . “We appreciate what you do,” McDonough told the press, according toThe Hill.
But at least one reporter was apparently not satisfied with the donuts.

"You should have brought Ben Rhodes," he said.

From Vox: Barack Obama is officially one of the most consequential presidents in American history

For our look at executive branch.

- Click here for the article.

Love him or hate him, Barack Obama is one of the most consequential presidents in American history — and that he will be a particularly towering figure in the history of American progressivism.

He signed into law a comprehensive national health insurance bill, a goal that had eluded progressive presidents for a century. He got surprisingly tough reforms to Wall Street passed as well, not to mention a stimulus package that both blunted the recession and transformed education and energy policy.

He's put in place the toughest climate rules in American history and signed a major international climate accord. He opened the US to Cuba for the first time in more than half a century, and reached a peaceful settlement to the nuclear standoff with Iran.
You can celebrate or bemoan these accomplishments. Liberals hail them as moves toward a social democratic welfare state and a foreign policy more skeptical of military intervention; conservatives critique Obama's efforts to expand regulation and the government's reach, and accuse him of abdicating America's role as world hegemon.

But no one can deny that the changes Obama has wrought are enormous in scale.

- Click here for a Wikipedia page with a terrific graphic summarizing presidential rankings.

From Politico: Can Democrats Retake the Senate in 2016?

The author thinks it is doable.

- Click here for the article.

All Democrats have to do to re-take the Senate is to win the three yellow toss-up states where they have a natural advantage, plus a couple of the current “lean Republican” states that have voted for Obama. And Democrats will need only one “lean R” state if the party wins the White House, guaranteeing that a Democratic vice president would break a 50-50 Senate tie.

This appears doable. The Democrats’ job in 2016 is not much different than the GOP’s task last November. Republicans had, first, to hold their 14 seats in ruby red states plus Maine, where Republican incumbent Susan Collins was never in danger; and second, pick up at least six of the large pool of 21 Democratic-held seats. There were seven generally Republican states in the South and West (Alaska, Arkansas, Louisiana, Montana, North Carolina, South Dakota, and West Virginia) that were ripe for the plucking. As it happened, the GOP swept these seven and added the swing states of Colorado and Iowa, for a net gain of nine.

Thus, another Senate flip in 2016, this time to the Democrats, isn’t difficult to imagine, but it’s far from a sure thing.

Random stories about Congress

For 2305 students:

- No Summer of Love With Republicans in Obama's Final Year.

The White House is hitting congressional Republicans with ever-sharper rhetorical blows as years of ill will and election-year posturing threaten to kill what was already shaping up to be a slim legislative agenda.

As the extended congressional summer break approaches, both ends of Pennsylvania Avenue are echoing with insults, catty tweets and fiery accusations.

. . . With so much venom, Obama’s top spokesman didn't disagree with one reporter’s assessment that his boss has lost any remaining leverage to persuade lawmakers to take up many of the issues on his final-year agenda.

Though Press Secretary Josh Earnest blamed GOP members and asserted that Obama “certainly hasn’t given up,” some lawmakers and longtime Washington hands say the discord bodes ill for getting anything done before the elections.

- Benghazi Report Describes Inertia, Failure to Recognize Risks.

The U.S. ambassador killed in Benghazi in 2012 had traveled there to lay the groundwork for a visit from Hillary Clinton a month later and the eventual opening of a permanent U.S. consulate, a report released Tuesday by a Republican-led House panel concluded.

The finding is among the few new pieces of information in sections of the 800-page report that were released to several media outlets overnight, after a two-year and $7 million investigation into the deaths of Ambassador J. Christopher Stevens and three other Americans.

- Senate Democrats Block $1.1 Billion to Fight Zika: Object to provisions on birth control, pesticide use, Confederate flag.

The Senate blocked a plan Tuesday to spend $1.1. billion to fight the Zika virus, as Democrats objected to added provisions that would limit funding for birth control, allow pesticide spraying near water sources, and raise the Confederate flag.

The conference report on Zika spending, which Democrats said was developed without their input , failed to receive the 60 votes needed to shut off debate.

- Top GOP Super PAC Ups Spending in Senate Races: Ad buys indicate where group believes candidates will be competitive.

The Senate Leadership Fund plans to spend big money defending Republicans in a quartet of battleground seats this fall, the super PAC said Tuesday, a strong indication of which states the group expects — and doesn't expect — to be competitive in November.

Headlining the fund's list of TV ad reservations is a $15.8 million buy in New Hampshire, where Republican Sen. Kelly Ayotte and Democratic Gov. Maggie Hassan are expected to face off in one of this election cycle's marquee races.

Voisine v. United States - Ban on guns for domestic abusers upheld

Second Amendment rights are not absolute.

- Click here for background from Oyez.

- Click here for info from Scotusblog.

Issue: Whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9).

Mens rea translates as guilty mind.

Most crimes require what attorneys refer to as "mens rea", which is simply Latin for a "guilty mind". In other words, what a defendant was thinking and what the defendant intended when the crime was committed matters. Mens rea allows the criminal justice system to differentiate between someone who did not mean to commit a crime and someone who intentionally set out to commit a crime.

From the Volokh Conspiracy: When Justices Thomas and Sotomayor dissent together.

McDonnell v. United States - Corruption conviction overturned

The court narrowly interprets what constitutes and "official action."

- Click here for background from Oyez.

- Click here for info from Scotusblog.

Issue: Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.

 From the Atlantic: The Ex-Virginia Governor's Overturned Conviction.

McDonnell v. United States focused on the question of what constitutes “official action” under federal corruption statutes. The prosecution said McDonnell knowingly took “official action” to receive bribes, and the jury’s verdict supported that. McDonnell argued that “merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, ‘official acts.’” When the Supreme Court agreed to hear McDonnell’s appeal this spring, the justices considered whether the federal government’s definition of “official acts”—the one that was provided to the jury—applied to the governor’s case. In their ruling, the eight justices said Monday that interpretation could raise “significant constitutional concerns”

From Scotusblog: Symposium: An important victory for representative democracy.

Americans who believe democracy works best when public officials understand and serve the needs of their constituents can celebrate the Supreme Court’s unanimous decision to throw out the conviction of former Virginia Governor Bob McDonnell. The government prosecuted Governor McDonnell based on a sweeping legal theory that would have turned commonplace interactions with our elected officials into bribery. Under that theory, there was no need for prosecutors to prove he exercised governmental power in exchange for something of value. If that result had been allowed to stand, then merely hearing out a constituent’s concerns would qualify as an “official act” on which prosecutors could base felony corruption convictions. Today’s decision soundly rejecting such a theory preserves the key role of access in our representative democracy.

Whole Woman’s Health v. Hellerstedt - Supreme Court overturns Texas' abortion restrictions

- Click here for background from Oyez.

- Click here for info from Scotusblog.

Issue: (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest.

From the Texas Tribune: What the Supreme Court Abortion Ruling Means for Texas Women.

From the Atlantic: How Obama Bounced Back After a stinging defeat in the 2014 midterm elections, the president found a way to avoid being a lame duck.

Generally presidents lose power toward the end of their terms. They become lame ducks, but Obama seems to have been finding ways to turn this around.

- Click here for the article.

“We went big.”

That’s how White House press secretary Joshua Earnest explained how President Barack Obama had rebounded from a stinging defeat in the 2014 midterm election, to his present popularity. It was, he said on Sunday, a deliberate strategy crafted to ensure the “lame-duck label” wouldn’t stick.

He ticked off a list of initiatives. Obama endorsed net neutrality, shortly after the election. He went to China, and announced a carbon deal. He unveiled a set of executive actions on immigration. He reopened diplomatic relations with Cuba.

Earnest credited White House Chief of Staff Denis McDonough for “seeing around a corner” in the weeks ahead of the election, and positioning the White House to respond. He made the remarks in an interview withThe Atlantic’s James Fallows at the Aspen Ideas Festival, which is co-hosted by the Aspen Institute and The Atlantic.

That aggressiveness, Earnest argued, had paid off, by demonstrating that “the president had the wherewithal and the energy and the authority” to accomplish things even at the end of his second term. Obama recently registered a 56 percent approval rating in a Washington Post poll, his highest level in that survey in five years.

From the Dallas Observer: Here's Why #Texit Can, but Won't, Happen

Just in case you are curious.

- Click here for the article.

If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, 'one Nation, indivisible.') Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

"I am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay," Scalia wrote.

If Scalia's legal opinion is correct, Texas cannot force the United States to let it secede if the U.S. refuses. That doesn't mean it couldn't happen, says Eugene Volokh, a law professor at UCLA who's written extensively about potential secession.

"A state couldn’t legally force the U.S. to let it secede, if the U.S. refused. But if the state and the U.S. agreed, that would be doable; at worst, it would require a constitutional amendment (always possible, though it requires two-thirds of the vote of each house of Congress and a majority vote in three-quarter of the state legislatures), but most likely an act of Congress, coupled with a majority referendum that the state government views as binding, would suffice," Volokh writes in an email

Whether Texas left or not, Volokh says, would be a political decision by the United States and the people and government of Texas, rather than a legal one. Still, he says that's unlikely to happen, at least as things stand. 

"I very much doubt that the political will would be there today, or any time in the immediate future. Most Texans, I think, are proud to be Americans, whether or not they like what the federal government is doing, and they can see the benefits of remaining part of a powerful country that can defend their interests. But if things change, and Texans want to leave and can persuade the rest of the country to let them go, then that could certainly happen," he says.

At the 2016 Texas Republican convention in May, Texas state GOP delegates, perhaps one of the most conservative and federal-government loathing groups that could be put together, wouldn't even go so far as to endorse secession at the platform level, knocking down a plank that would've called on Abbott to do what the TNM wants.

For more: Texas v White.

What is Deferred Action for Parents of Americans and Lawful Permanent Residents?

The obligatory Wikipedia page provides the background to put United State v Texas in context.

- Click here for it.

From Scotublog: United States v. Texas

The court upheld a preliminary injunction issued by a federal judge in Texas temporarily halting the president's Deferred Action for Parents of Americans and Lawful Permanent Residents program. No substantive decision was made about why it did so, meaning - as I see it - the question about whether the president exceeded - in fact - his authority still needs to be fleshed out. In addition, if he did, how?

- Click here for the summary from Scotublog.

- For facts of the case, click here for Oyez's page on it.

This is the list of the issues raised by the case:

(1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action;

(2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law;

(3) whether the guidance was subject to the APA’s notice-and-comment procedures; and

(4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.

For background on some terms used above:

- Standing.
- Arbitrary and Capricious.
- Administrative Procedures Act.
- Take Care Clause.

From the Atlantic: How American Politics Went Insane

Jonathan Rauch bemoans what he calls "chaos syndrome," which he sees as a threat to democratic governance.

- Click here for the article.

Chaos syndrome is a chronic decline in the political system’s capacity for self-organization. It begins with the weakening of the institutions and brokers—political parties, career politicians, and congressional leaders and committees—that have historically held politicians accountable to one another and prevented everyone in the system from pursuing naked self-interest all the time. As these intermediaries’ influence fades, politicians, activists, and voters all become more individualistic and unaccountable. The system atomizes. Chaos becomes the new normal—both in campaigns and in the government itself.

Our intricate, informal system of political intermediation, which took many decades to build, did not commit suicide or die of old age; we reformed it to death. For decades, well-meaning political reformers have attacked intermediaries as corrupt, undemocratic, unnecessary, or (usually) all of the above. Americans have been busy demonizing and disempowering political professionals and parties, which is like spending decades abusing and attacking your own immune system. Eventually, you will get sick.

Affirmative action upheld by the Supreme Court

The case was Fisher v University of Texas. The vote was narrow.

- Click here for Scotusblog's page on the case.
- Click here for Oyez's.

Basic info from Oyez:

Question: Does the University of Texas’ use of race as a consideration in the admissions process violate the Equal Protection Clause of the Fourteenth Amendment?

Conclusion: The University of Texas’ use of race as a consideration in the admissions process did not violate the Equal Protection Clause of the Fourteenth Amendment. Justice Anthony M. Kennedy delivered the opinion for the 4-3 majority. The Court held that the University of Texas’ use of race as a factor in the holistic review used to fill the spots remaining after the Top Ten Percent Plan was narrowly tailored to serve a compelling state interest. Previous precedent had established that educational diversity is a compelling interest as long as it is expressed as a concrete and precise goal that is neither a quote of minority students nor an amorphous idea of diversity. In this case, the Court determined that the University of Texas sufficiently expressed a series of concrete goals along with a reasoned explanation for its decision to pursue these goals along with a thoughtful consideration of why previous attempts to achieve the goals had not been successful. The University of Texas’ plan is also narrowly tailored to serve this compelling interest because there are no other available and workable alternatives for doing so.

Commentary:

- How Affirmative Action Won the Day.
- AN UNEXPECTED VICTORY FOR AFFIRMATIVE ACTION.
- How Anthony Kennedy Came Around on Affirmative Action.

From The Week: Superdelegates, explained

Perhaps the most controversial aspect of the Democratic primary process was their use of party regulars in the presidential selection process.

- Click here for the article.

. . . superdelegates are not bound to follow the will of the voters, nor are they required to stay true to the candidate they've pledged to support. But they may well decide the Democratic race. It's certainly possible, and perhaps even likely, that neither Clinton nor Sanders will get to 2,383 without superdelegates.

So who are these superdelegates, and how does their power work? Here's what you need to know:

Who gets to be a superdelegate?
A superdelegate is typically an elite member of the Democratic Party falling into one of three categories:

1. A major elected official, including senators, members of the House, governors, and leaders from each state's Democratic Party. For example, New York Gov. Andrew Cuomo and Massachusetts Sen. Elizabeth Warren are superdelegates.

2. A notable party figure, such as former and current presidents and vice presidents. For example, former President Bill Clinton and Vice President Joe Biden are superdelegates.

3. Select leaders of organizations affiliated with the Democratic National Committee. These select party elders get their superdelegate status automatically by virtue of the fact that they've been elected to public office. For example, DNC Chair Debbie Wasserman Schultz and Louis Elrod of Young Democrats of America are superdelegates.

How many Democratic superdelegates are there?
712. They control about 15 percent of the nominating process. The remaining 85 percent is controlled by delegates apportioned by the results of primaries and caucuses.

How are superdelegates different from regular delegates?
Superdelegates are free to support whichever candidate they choose, even if that candidate is not the voters' pick. As for normal delegates: Each state has a different system for selecting who they'll send to the convention as a delegate. But unlike superdelegates, delegates are allotted to candidates in proportion to their share of the vote in the state's primary or caucus and are then pledged to vote for that candidate.

Why do we have superdelegates in the first place?
For most of the Democratic Party's history, party elders picked the nominee. It was only in recent decades that the Democratic Party began experimenting with the idea of opening up the nomination process to give voters more of a say in choosing the nominee.

From Politico: Walker: GOP delegates should ‘vote the way they see fit’

Strange things can happen at conventions - well usually they don't, but they can.

- Click here for the article

Wisconsin Gov. Scott Walker said Tuesday that delegates to next month's Republican National Convention in Cleveland should “vote the way they see fit,” which could mean not necessarily supporting presumptive Republican nominee Donald Trump.

Walker, a former Republican presidential candidate and delegate to the convention, said he would cast his ballot in the first round for Ted Cruz, as the Texas senator won the Wisconsin primary, according to a report from The Associated Press.

Referring to remarks from Paul Ryan on NBC's "Meet the Press" in which the speaker of the House remarked that he would not ask fellow party members to violate their conscience by supporting Trump, Walker said the Wisconsin Republican lawmaker's comments "are legitimate."

"I think historically, not just this year, delegates are and should be able to vote the way they see fit," Walker said, according to the AP. "We'll see how things go between now and the convention as to what the next steps are. I'm not going to speculate now only because you all know the situation may change by this afternoon, let alone between now and the convention."

Walker has said he would support Trump as the presumptive nominee, but has called for him to rescind and clarify his comments regarding the judge involved in the lawsuit over Trump University. Trump questioned Judge Gonzalo Curiel’s ability to preside over the case because of his Mexican heritage. Walker said he is still looking for clarity from Trump.

See also: Republican leaders consider rewriting convention rules.

From Vox: House Democrats are staging a sit-in to force a vote on gun control

This doesn't happen everyday.

- Click here for the article.

A week after a Senate filibuster forced a vote on gun control measures, Democrats in the House of Representatives are holding a sit-in on the House floor to try to get Republicans there to do the same.

"The time for silence and patience is long gone," Rep. John Lewis, the Georgia Democrat and hero of the civil rights movement who is leading the sit-in, said in a stirring speech Wednesday morning. "The American people are demanding action. Do we have the courage, do we have the raw courage to make at least a down payment on ending gun violence in America?"

Here's a look at it from a media perspective.

- How C-SPAN is skirting the House TV blackout on Democrats' sit-in.

A more comprehensive look from Roll Call:

- House Democrats Stage Chamber Floor Sit-In For Gun Vote.

What is an "independent expenditure?"

It's what makes a PAC different than a Super PAC. The expenditures are independent of the campaigns of the candidates they support and its all the Super PAC can spend. Super PACs are more accurately called "independent expenditure-only committees." But the expenditures are limitless, which explains their popularity. The problems is determining if the expenditures are in fact independent - if they are not coordinated.

This link in Ballotpedia helps explain how this is done: Click here for detail.

From the Pew Research Center: A Deep Dive Into Party Affiliation

Something to chew on for today's look at political parties.

- Click here for the article.

Donald Trump and the Super PACs

Some are for him. Some are not.

Great America PAC:

A pro-Donald Trump super PAC is launching a new spot on Monday citing the Orlando attacks to bolster Trump's credentials as a possible commander-in-chief.

Great America PAC, one of the earlier pro-Trump groups to mobilize on his behalf, also plans to announce that it raised about $1 million in May, Eric Beach, the group's finance head told CNN. The super PAC also collected another $1.3 million in commitments since June 1, he said, with an expectation it will raise more than $2 million this month.

The group is one of several pro-Trump super PACs ramping up its fundraising and advertising in an effort to become the top outside organization backing the presumptive Republican nominee 

"The goal of a super PAC in this election cycle is to make sure Donald Trump has the necessary resources in the swing states," said Eric Beach, the group's finance head. "We have a sound strategy to win those states."

Americans Against Insecure Billionaires with Tiny Hands:

He’s been pummeled on policy and his pugnacious stump speeches but now Donald Trump faces attack ads focusing on something altogether different – the size of his hands.

A super PAC titled "Americans Against Insecure Billionaires with Tiny Hands" released a minute-long ad questioning whether or not the real estate mogul-turned-presumptive Republican presidential nominee would be able to serve as president with his "little hands."

A spokesman for the PAC said that the ad aired once on MSNBC in the District of Columbia, Maryland and Virginia on Wednesday night during primetime. MSNBC did not immediately return ABC News' request for confirmation.

The Wall Street Journal has a more complete list here.

From Politico: Senate rejects all gun bills

More on last night's vote:


- Click here for the article.

The Senate voted down four separate gun measures Monday in the aftermath of the worst mass shooting in modern U.S. history — showing the partisan paralysis over gun control has barely moved on Capitol Hill despite the stream of continued gun violence across the country.

Lawmakers took up two separate issues involving gun regulations: how to improve the nation’s background check system for those who want to purchase firearms, and how to ensure those with terrorist ties do not obtain a gun. But those questions remained unresolved by lawmakers as of Monday night.

Instead, Democrats made it clear they want to make it as painful for Republicans to oppose their gun amendments, whether through a flood of advocacy calls to their Senate offices or at the ballot box in November.

For a look at the actual votes, click here: Senate Roll Call Votes.

The votes were not for a unique stand alone bill on gun control. Instead they were offered as amendment to one of the appropriations bills that has to passed later this year. Click here for it:

- H.R.2578 - Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016.

For more on the appropriations process:

- House Committee on Appropriations.
- Congress.Gov: Appropriations for Fiscal Year 2017.

From the NRA-ILA: NRA Statement on the Senate Voting Down Anti-Gun Bills

- Click here for the link.

The executive director of the National Rifle Association Institute for Legislative Action (NRA-ILA), Chris W. Cox, today issued the following statement in response to political maneuvering in the United States Senate that prevented the passage of legislation to prohibit terrorists from obtaining firearms:

“Today, the American people witnessed an embarrassing display in the United States Senate. President Obama and his allies proved they are more interested in playing politics than addressing their failure to keep Americans safe from the threat of radical Islamic terrorism.

“We all agree that terrorists should not be allowed to purchase or possess firearms. We should all agree that law-abiding Americans who are wrongly put on a secret government list should not be denied their constitutional right to due process. These are not mutually exclusive ideas. It is shocking that the safety of the American people is taking a backseat to political theatre.

“We thank the majority of the senators for rejecting the gun control proposals of Senators Feinstein and Murphy. We applaud Senators Cornyn and Grassley for securing majorities for their common-sense proposals. We look forward to working with those interested in real solutions to keep the American people safe, including their right to defend themselves in the face of government failure."

- Click here for their Grades and Endorsements.