January 14, 2014
The Supreme Court heard argument yesterday about recess appointments. The Constitution says:
The President shall have the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.
Presidents have made such appointments since the Washington Administration. In the eighteenth century, adjournments were lengthy because travel to one’s state or district could take months. Now senators and representatives can make the trip quickly. Since at least Ronald Reagan, presidents have made appointments during intra-session adjournments of the Senate.
Democrats under Bush and Republicans under Obama started calling lengthy adjournments “pro forma sessions.” Nothing is supposed to happen; the Senate is vacant except for a couple of senators to gavel in these pro forma sessions. The purpose is straightforward – to prevent the president, initially Bush, now Obama, from making recess appointments so the government could keep functioning. Justices, on both sides of the political aisle, described that as “intransigence” and “irresponsibl[e].” Read the rest of this entry »
December 31, 2013
What’s the worst thing the U.S. Supreme Court has done in two decades?
Bush v. Gore? The very name evokes tragedy. Thousands dead in Iraq for a war we shouldn’t have fought. Thousands more dead in Afghanistan because the Supreme Court’s choice for president sent military support to Iraq instead. The Court’s presidential choice also encouraged savage, predatory business behavior that we’re still paying for. It put off any reckoning with the environment for a decade, more if you include the House of Representatives’ current intransigence.
That’s quite a record for a single U.S. Supreme Court decision. You might have to go back to Dred Scott v. Sanford which helped bring on the Civil War to match the impact of Bush v. Gore, although if we go back that far, disasters you’ve probably never heard of, like U.S. v. Cruikshank and the ironically named Civil Rights Cases, were responsible for a century of murder and mayhem with impunity in the segregated south. But Bush v. Gore certainly ranks with the biggest – and worst. Read the rest of this entry »
November 16, 2013
A week ago my students and I went to the U.S. Supreme Court and saw the argument in Bond v. United States.
Carol Bond tried to poison Myrlinda Haynes because of an affair with Bond’s husband. Local authorities wouldn’t bother helping Haynes but sent her to the Postal Service, because poison was found in her mail and the Postal Service has the power to prosecute crimes involving the mail. The Postal Service set up a camera and caught Bond in the act. Postal inspectors arrested Bond and a federal grand jury indicted her for violating the Chemical Weapons Implementation Act.
The United States is a party to the international Chemical Weapons Convention. Congress passed a statute to implement the Convention which prohibited “knowing possession or use, for nonpeaceful purposes, of a chemical that can cause death” or other harms. Treaties and state failure to execute them were a major reason for the Constitution, which gives Congress power to pass laws that are necessary and proper for carrying them out.
But attorneys for Bond smelled an opportunity to narrow national power, arguing such crimes were local and reserved to the states. Read the rest of this entry »
July 9, 2013
Obviously I’ve been following the news from Egypt like everyone else. You don’t need commentators to tell you that ousting a democratically elected government is undemocratic and unacceptable. But I want to talk about Morsi’s mistakes because they illustrate a major misunderstanding of democracy. Read the rest of this entry »
May 7, 2013
It seems clear that Dzhokhar Tsarnaev exploded bombs at the Boston Marathon. Although some wanted him tried as an enemy combatant outside of the requirements of the Constitution, the Obama Administration has brought charges in the federal courts.
It’s fascinating how some Americans treat our Constitution. On the one hand, many people make a fetish about what the Founders thought and did in the eighteenth century, and on the other many, often the same people, argue that the Constitution is simply irrelevant, doesn’t apply, can safely be ignored or forgotten.
Let’s get past that one quickly. Although the evidence so far does not fit the definition, the Constitution has a very clear notion of what to call Americans who adhere to our enemies – “traitors.” Read the rest of this entry »
April 30, 2013
I got into a discussion about a proposed 28th Amendment to our Constitution a few days ago. Turns out there’s more than one proposal calling itself the 28th Amendment. I’m talking about the one that begins, “The rights protected by the Constitution of the United States are the rights of natural persons only.” There may be similar ones. There certainly are some calling themselves the 28th Amendment that address very different subjects and are totally misinformed. But the restriction of constitutional rights to natural persons is worth talking about. Read the rest of this entry »
March 27, 2013
Sunday night, my wife and I attended a Persian Nowruz or New Year’s festival, with many friends. We celebrated the best and happiest of the traditions they had left behind, along with other Americans who had come to take part. While celebrating the rebirth of Spring, we were also celebrating freedom with friends who had become refugees, whose humanity and efforts to use their skills to help others had become unwelcome to Iranian authorities.
Last night we celebrated freedom with another group of friends, this time in a Passover Seder at our home. We were all Americans by birth but we remembered the importance of freedom to the ancient Israelites and to the many different groups who have struggled for freedom in our own lifetimes.
On both evenings some of the conversation turned to what was going to happen in the cases dealing with the rights of gays and lesbians in front of the U.S. Supreme Court this week. Read the rest of this entry »
January 15, 2013
Some congressmen believe the government should not spend any money, shouldn’t borrow, shouldn’t raise the debt ceiling, and shouldn’t raise taxes. They are from “red” states or districts. And they don’t want to vote for hurricane relief for the northeastern states.
Others believe government should do what is necessary for the welfare of the people. When people are in trouble, good people help. They are from “blue” states or districts. And they voted for hurricane relief for the South and Midwest.
It’s not just Tea Party ideology. Whose ox is gored matters to them. If the hurricane hits my district, well, they’re good people, so we gotta help. But if it’s somebody else’s district, especially a “blue” district, we certainly do not want to help “those” people. So we have a combination of politics and ideology.
OK then, here’s a proposal. Read the rest of this entry »
September 25, 2012
As you think about whom you’ll vote for, let me tell you about two decisions of the Roberts Court where the Court sprang to the defense of prosecutors whose denials of constitutional protections had put innocent men in prison for decades. Read the rest of this entry »