Week 8 Reading and Assignment

Please read this article CAREFULLY and be prepared to answer the questions in class. The idea is that you read the article closely at home (looking up words you don't know etc.) and then answering the questions in class should be EASY. I would like everyone to write up a short "profile" of Elena Kagan: this means where she went to school, what she is like etc.

Obama Picks Kagan as Justice Nominee

From The New York Times

May 09, 2010

By Peter Baker and Jeff Zeleny

WASHINGTON — President Obama nominated Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future.

What Kagan Will Bring to the Court

After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens.

In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience. […]

Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.

In making his second nomination in as many years, Mr. Obama was not looking for a liberal firebrand as much as a persuasive leader who could attract the swing vote of Justice Anthony M. Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John G. Roberts Jr. Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Mr. Obama has publicly criticized the court, even during his State of the Union address with justices in the audience.

As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices. […]

Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. “I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket,” she testified. “I think I bring up some of the communications skills that has made me — I’m just going to say it — a famously excellent teacher.”

Ms. Kagan was one of Mr. Obama’s runners-up last year when he nominated Sonia Sotomayor to the court, and she was always considered the front-runner this year. […] Ms. Kagan had several advantages from the beginning that made her the most obvious choice. For one, she works for Mr. Obama, who has been impressed with her intelligence and legal capacity, aides said, and she worked for Vice President Joseph R. Biden Jr. when he was a senator. For another, she is the youngest of the four finalists, meaning she would most likely have the longest tenure as a justice.

Ms. Kagan was also confirmed by the Senate just last year, albeit with 31 no votes, making it harder for Republicans who voted for her in 2009 to vote against her in 2010.

The president can also say he reached beyond the so-called “judicial monastery,” although picking a solicitor general and former Harvard law dean hardly reaches outside the Ivy League, East Coast legal elite. And her confirmation would allow Mr. Obama to build on his appointment of Justice Sotomayor by bringing the number of women on the court to its highest ever (three, with Justice Sotomayor and Justice Ruth Bader Ginsburg).

Moreover, in his selection of finalists, Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center.

Judge Garland was widely seen as the most likely alternative to Ms. Kagan and the one most likely to win easy confirmation. Well respected on both sides of the aisle, he had a number of conservatives publicly calling him the best they could hope for from a Democratic president. […]

But Mr. Obama ultimately opted to save Judge Garland for when he faces a more hostile Senate and needs a nominee with more Republican support. Democrats expect to lose seats in this fall’s election, so if another Supreme Court seat comes open next year and Mr. Obama has a substantially thinner margin in the Senate than he has today, Judge Garland would be an obvious choice. […]

A New Yorker who grew up in Manhattan, Ms. Kagan earned degrees from Princeton, Oxford and Harvard Law School, worked briefly in private practice, clerked for Justice Thurgood Marshall, served as a Senate staff member and worked as a White House lawyer and domestic policy aide under President Bill Clinton. She was nominated for an appeals court judgeship in 1999, but the Senate never voted on her nomination.

She has been a trailblazer along the way, not only as the first woman to run Harvard Law School but also as the first woman to serve as solicitor general. Her inexperience as a judge makes her a rarity in modern times, but until the 1970s many Supreme Court justices came from outside the judiciary, including senators, governors, cabinet secretaries and even a former president.

If the Senate confirms Ms. Kagan, who is Jewish, the Supreme Court for the first time will have no Protestant members. In that case, the court would be composed of six justices who are Catholic and three who are Jewish. It also would mean that every member of the court had studied law at Harvard or Yale. […]

Source: http://www.nytimes.com/2010/05/10/us/politics/10court.html

TEST 1 Answers

Please read over my example answers to the exam and compare them to your own, especially the short answer questions. If you still have any questions you can see me in my office hours (FRI 9:30am-10:30am) or email me to set up an appointment.

Test #1 Answer Key:

True/False:

1. False
2. True
3. False
4. False
5. False
6. False
7. True
8. False
9. True

Multiple Choice:

1. c
2. b
3. a
4. b
5. c
6. a
7. d

Short Answer:

1. Trust in the government has gone down for numerous reasons including economic difficulties, dissatisfaction with the government and disapproval of Obama's healthcare bill. One can also point to the fact that in the 50s there was a lot of economic prosperity and trust in the government due to having won WWII. After the 50s wars like the Vietnam War, which was very unpopular, decreased trust in the government.
   
   
2. The two ways to interpret the 2^nd amendment are as a “collective” right and as an “individual” right. The collective right interpretation means that owning a gun is only a right for those involved in a militia. The individual right interpretation means that owning a gun is a right for all people.
   
   
3. The three reasons why it was predicted that Democrats might lose a lot of seats in 2010 were that a. the Democrats held a lot of seats in Republican leaning districts, b. in mid-term elections voters tend to vote for the party that is not in power, and c. there is general dissatisfaction with the Democrats who were in power.
   
   
4. THIS QUESTION IS VERY OPEN ENDED WHICH MEANS I ACCEPTED A LOT OF DIFFERENT ANSWERS. THIS IS A LIST OF POSSIBLE ANSWERS: The political atmosphere in the US is very tense right now because the political parties are not cooperating, Obama's government is very partisan, the healthcare bill is unpopular, the economic crisis is making everyone nervous, there is distrust in the government, and there is a new trend of people who want a smaller government (the Tea Party).

Week 7 Reading

Please read this article closely for next week. This means that you read it at least one time, take notes and look up words or concepts that you do not understand. You MUST bring the article with you to class and have done the reading. 

You DO NOT have to write a summary; however, if you come to class and have not done the reading you WILL be asked to leave and I will ask your name so I can mark you as absent.

If you are on your computer or are talking in class you WILL be asked to leave.

House adopts resolution scolding Obama on Libya

June 3, 2011 2:57 PM , From CBS

WASHINGTON - The Republican-controlled House on Friday adopted a resolution rebuking President Barack Obama for dispatching U.S. military forces against Libya without congressional approval. The vote was 268-145, over White House objections.

The resolution by Speaker John Boehner said the president has failed to provide a "compelling rationale" for the nearly 3-month old operation to aid rebels battling Moammar Gadhafi's forces. During Friday's debate, Democrats and Republicans complained that Obama ignored Congress' constitutional authority to declare war. The nonbinding measure insists that Obama provide Congress with details on the scope of the mission and its costs within 14 days. It also bars U.S. ground forces except to rescue an American service member.

Shortly after adopting the resolution, the House rejected a considerably tougher measure advanced by Rep. Dennis Kucinch that demanded an end to U.S. involvement in the NATO-led operation in Libya. The vote was 265-148. The GOP leadership hastily pulled together the Boehner resolution amid concerns in both parties that the Kucinich measure was gaining ground.

The Senate had no plans to consider the measure, which would allow the U.S. to continue to remain engaged in the mission and would have no impact on the logistical and intelligence support the Americans have been providing.

Boehner assailed the administration for failing to answer several questions about the operation. "Today's debate on Libya is the first step and clearly there's information that we want from the administration that we asked for in this resolution and it's information that we expect to get," the Ohio Republican told reporters. "But there isn't any question in my mind that Congress is going to take further action in the weeks to come."

The White House pushed back against both resolutions, with spokesman Josh Earnest calling them "unnecessary and unhelpful." Earnest insisted that the administration has been consulting with Congress since before Obama ordered air strikes. "It is the view of this administration that we've acted in accordance with the war powers act because of these regular consultations," Earnest said aboard Air Force One en route to Toledo, Ohio.

But lawmakers faulted the commander in chief for ignoring both Congress' constitutional authority to declare war and the 1973 War Powers Resolution that requires congressional authorization within 60 days of military action. That deadline expired last month. "Shall the president, like the King of England, be a dictator on foreign policy?" asked Rep. Jerrold Nadler, D-N.Y. "The authors of the Constitution said we don't trust kings."

Republicans and Democrats have been frustrated with Obama's treatment of Congress, particularly the level of consultation and details on the scope of the Libyan mission and its costs. "What did he do, send a tweet to the chairman of the Armed Services and Intelligence committees?" Rep. Phil Gingrey, R-Ga., asked mockingly.

Obama ordered air strikes in March to back Libyan rebels battling Gadhafi's regime after limited consultation with Congress. More recently, the United States has operated in a support role as the standoff continues between Gadhafi's forces and the rebels.

The president has argued that he acted to prevent a massacre in the rebel stronghold of Benghazi, and he had the backing of several lawmakers, including Sen. John McCain of Arizona, the ranking Republican on the Armed Services Committee.

Initially, the military operation was largely constituted of U.S., British and French naval and air attacks, with the United States taking the lead. NATO took charge at the end of March and U.S. forces now play a support role that includes aerial refueling of NATO warplanes and intelligence, and surveillance and reconnaissance work. The U.S. also flies unmanned drones over Libya.

Obama said when he ordered U.S. forces to support the mission that there would be no American ground troops. Although no U.S. military forces are present, The Associated Press and other news organizations have reported that the CIA has paramilitary officers operating alongside rebel forces in the North African nation.

Source: http://www.cbsnews.com/stories/2011/06/03/politics/main20068733.shtml

Week 6 Reading and Assignment

Please read the following article for your 6th class day and write a summary of approximately 10 sentences. From now on I want your summaries typed and printed double spaced. Thanks. -Megan

 

Is health-care reform constitutional?

From The Washington Post

By Randy E. Barnett

Sunday, March 21, 2010

With the House set to vote on health-care legislation, the congressional debate on the issue seems to be nearing its conclusion. But if the bill does become law, the battle over federal control of health care will inevitably shift to the courts. Virginia's attorney general, Ken Cuccinelli II, has said he will file a legal challenge to the bill, arguing in a column this month that reform legislation "violate[s] the plain text of both the Ninth and Tenth Amendments." On Friday, South Carolina Attorney General Henry McMaster and Florida Attorney General Bill McCollum announced that they will file a federal lawsuit if health-care reform legislation passes.  Will these cases get anywhere? Here is a guide to the possible legal challenges to a comprehensive health-care bill.

The individual mandate.

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power "to regulate commerce . . . among the several states." Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That's why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of "economic" activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that's how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

The Cornhusker Kickback, the Louisiana Purchase, Gator Aid and other deals.

Some states are threatening lawsuits to block the special deals brokered by individual senators in exchange for their votes. Unless the reconciliation bill passes the Senate, such deals could remain in place. Article I of the Constitution allows Congress to tax and spend to "provide for the common defense and general welfare of the United States." Normally, this is no barrier to legislation benefiting a particular state or city. Congress can always argue that, say, an Air Force base in Nebraska benefits the United States as a whole. But the deals in the Senate bill are different. It is really hard to identify a benefit to all the states from exempting one state from an increase in Medicare costs or allowing only the citizens of Florida to get Medicare Advantage.

The Slaughter House rule.

A far graver threat to the bill would have been to declare it unconstitutional because it was never formally voted on by the House and therefore never became law. Article I requires that every bill "shall have passed the House of Representatives and the Senate" to become law, and that "the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered in the journal of each House respectively."

The whole purpose of the "deem and pass" procedure -- which was advocated by Rules Committee Chairman Louise Slaughter -- was to avoid a separate vote on the Senate bill, which many House members find objectionable, and instead vote on the reconciliation bill and simultaneously "deem" the Senate measure passed. Although Democrats cited prior examples of deem and pass, "the Republicans did it" is not a recognized constitutional argument -- especially if the public and the justices have never heard of such a thing. This constitutional objection seems to have succeeded, as House leaders decided on Saturday to take a separate vote on the Senate version, rather than "deeming" it passed.

State sovereignty provisions.

Several states are considering measures attempting to exempt their residents from an individual health insurance mandate. While such provisions may have a political impact, none is likely to have any effect on the legislation's constitutionality. Under the 10th Amendment, if Congress enacts a law pursuant to one of the "powers . . . delegated to the United States by the Constitution," then that law is supreme, and nothing a state can do changes this. Any state power to "nullify" unconstitutional federal laws has long been rejected.

Constitutional amendments.

Of course, there is one additional way for states to win a fight about the constitutionality of health-care legislation: Make it unconstitutional. Article V of the Constitution gives state legislatures the power to require Congress to convene a convention to propose an amendment to the Constitution. If three-fourths of the state legislatures demand an amendment barring the federal regulation of health insurance or an individual mandate, Congress would be constitutionally bound to hold a convention. Something like this happened in 1933 when Congress proposed and three-quarters of the states ratified the 21st Amendment, removing from the Constitution the federal power to prohibit the manufacture, sale and transportation of alcohol. But the very threat of an amendment convention would probably induce Congress to repeal the bill.

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument?

Randy E. Barnett teaches constitutional law at Georgetown University. He is the author of "Restoring the Lost Constitution: The Presumption of Liberty."

Source: http://www.washingtonpost.com/wp-dyn/content/article/2010/03/19/AR2010031901470.html

Discussion Questions for Weeks 2, 3, & 4

US Civilization—US Political Institutions and Society

Week 2

Discussion Questions

Majority of Americans Distrust the Government

1.     When was the first time that the “trust” question was asked to Americans?

2.     Why do you think it has declined since then? Why do you think it was high in the 50s?

3.     Why does the article say there is distrust now?

4.     Are Americans angry with the government or are they frustrated?

5.     In what ways can the government threaten personal freedom?

6.     Why would the healthcare bill make people more distrustful of the government?

7.     Do you distrust the French government? Why or why not?

US Civilization—US Political Institutions and Society

Week 3

Discussion Questions

Gun Control

2^nd Amendment:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

1.     Who was president when a federal law was passed requiring background checks for gun purchases? (Bill Clinton)

2.     Is George Bush, or Al Gore “anti-gun”? (Al Gore)

3.     Which amendment discusses guns? (2^nd)

4.     In 2008, what did the Supreme Court decide? (that it is a constitutional right to have a loaded hand gun at home for self defense)

5.     Did this affect federal or state laws? (federal)

6.     What did the 2010 ruling decide about this? (that is applies both to state and federal)

7.     What did the 1939 Supreme Court decision state? (that is about being in a militia (collective rights))

8.     What is the current interpretation of the 2^nd Amendment? (individual rights)

9.     Can Americans carry legally owned guns from one state into another? (no)

US Civ

Discussion Questions

Week 4

The Incumbency Effect

1.     What is the conventional take on national elections? What is this called?

2.     How many Democrats and Republicans were in the House of Representatives when this article was written?

3.     Where do Democrats hold a lot of seats? Is it a problem for their re-election?

4.     How man incumbents defeated their challengers in 1994?

5.     Where does the term “incumbency effect” come from?

6.     Where is it seen most clearly?

7.     Name 3 reasons why it’s easier for incumbents to get elected.

8.     Name 3 reasons why the democratic incumbents might not win.

9.     Do people feel in general that their representatives are “in touch” with their state?

10.  Have Republicans persuaded voters that they can make a change by voting in the mid-term elections?