Congress

  • February 11, 2013

    by Jeremy Leaming

    Despite attorneys in the Department of Justice’s Office of Legal Counsel who appear to have produced a lengthy justification for targeted killings that skewers the English language to wend its around constitutional principles such as due process before the government can deprive a person of liberty, President Obama has nonetheless taken solid action to counter the right’s take on the Constitution as a document that limits government’s ability to take collective action to protect and advance the nation’s welfare.

    In a piece for The New Republic, Simon Lazarus, senior counsel to the Constitutional Accountability Center, says it’s about time – likely long overdue -- that progressives provide a compelling alternative to the right’s simplistic, but effective rhetoric of a Constitution that is all about individual rights and a weak central government.

    Quickly after the president provided some staunchly liberal rhetoric in his Second Inaugural address, Republican lawmakers, such as Sens. Mitch McConnell (R-K.Y.) and Chuck Grassley (R-Iowa) brayed that the president was ushering in or attempting to an age of radical liberalism. Grassley, as noted here, also groused that the president had turned the Second Amendment on its head by arguing that new measures aimed at curbing gun violence were no threat to the individual right to bear arms.

    The president’s rhetoric on the Constitution, Lazarus writes, “echoes that of the Reconstruction Congresses which enacted the Thirteenth, Fourteenth and Fifteenth Amendments. In line with then-existing Supreme Court precedent, they believed Congress empowered to prevent interference with the exercise of individual rights created by constitutional prohibitions on government. Specifically, they held the federal government responsible for preventing private violence and intimidation designed to deter former slaves from voting and enjoying other constitutionally prescribed liberties. And they wrote into the amendments express authority for Congress to ‘enforce’ that responsibility.”  

     

  • February 4, 2013

    by Jeremy Leaming

    In 2006 when Congress overwhelmingly reauthorized Section 5, the major enforcement provision of the Voting Rights Act, it did so “at the height of its powers in regulating the intersecting areas of voting, race, and political rights,” a bipartisan group of congressmen state in a brief lodged in Shelby County v. Holder.

    On Feb. 27, the U.S. Supreme Court will hear oral argument in the Shelby County case. Section 5 requires certain states and localities with deep histories of racial discrimination in voting to obtain “preclearance” from the Department of Justice or a federal court in Washington, D.C. before making changes to voting procedures. Officials in Shelby County, Ala., lodged the lawsuit arguing that Section 5 is no longer needed. The officials, with the support of the state’s attorney general, argue that racial discrimination in voting is largely a thing of the past and therefore state officials should not need the federal government’s approval of changes to voting procedures.

    As noted on this blog, the NAACP Legal Defense & Educational Fund (LDF), representing some voters in Alabama, is battling those claims in defense of the landmark law. (Other civil liberties groups are also urging the Supreme Court to uphold Section 5. To see some briefs and more information about the VRA, visit ACS’s Voting Rights Act Resource Page.)

    The friend-of-the-court brief filed on behalf of Reps. F. James Sensenbrenner Jr. (R-Wis.), John Conyers Jr. (D-Mich.), Jerrold Nadler (D-N.Y.), Steve Chabot (R-Ohio), Robert C. “Bobby” Scott (D-V.A.) and Melvin Watt (D-N.C.), also urges the high court to show judicial restraint and uphold Section 5. The group of House Judiciary Committee members served as leadership during the 2006 reauthorization of Section 5. The group details the process of creating a voluminous congressional record that supported the ongoing need for the VRA’s Section 5.

    Rep. Sensenbrenner in a press statement announcing the brief called the VRA “the crown jewel of the civil rights laws” that should be “ardently” defended. Rep. Conyers said Section 5 “remains critical to enforcing the constitutional rights of all voters, especially for voters in jurisdictions with a history of discrimination.”

  • December 14, 2012
    Guest Post

    by Allison R. Brown, a civil rights attorney and President of Allison Brown Consulting (ABC)

    Two years ago, in September 2010, Attorney General Eric Holder and Secretary of Education Arne Duncan announced an historic partnership within the executive branch of government – the Department of Justice and the Department of Education were joining forces to focus civil rights policy and enforcement efforts on examining and eliminating the “school-to-prison pipeline.”  That partnership created a two-part national conference about the impact of student discipline on the pipeline and also created an inter-agency Supportive School Discipline Initiative.  This week, federal interest in ending the “school-to-prison pipeline” officially grew as the legislative branch opened its doors to discourse about the issue.

    On Dec. 12, Sen. Dick Durbin (D-Ill.), chairman of the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights, convened the first-ever Senate hearing on ending the “school-to-prison pipeline.” Durbin himself provided impassioned and numbers-driven introductory remarks at the hearing, defining the pipeline as a literal and figurative “gateway” out of school and into the criminal justice system that deprives children of their “fundamental right to education.” He lamented the desperate overreach of lawmakers and educators years ago to create zero tolerance policies that, rather than make schools safer, has redefined “rather normal behavior” as criminal activity so that instead of sending children to the principal’s office for misbehavior, students are removed from the educational environment entirely. “The costs are enormous.” And those that pay the most are students of color, students with disabilities, and LGBT youth. 

  • August 23, 2012
    BookTalk
    The Parties Versus the People
    How to Turn Republicans and Democrats into Americans
    By: 
    Mickey Edwards

    By Mickey Edwards, a former member of Congress who represented Oklahoma’s 5th congressional district for 16 years


    The underlying principle of America’s Constitution is pretty straight-forward. Americans are to be citizens, not subjects. Governments tell their subjects what to do but citizens tell their governments what to do. In the United States, that fundamental hallmark of citizenship is accomplished by (a) placing most of the major powers of the federal government in the hands of the national legislature, and (b) giving the people the right to determine who will serve in that decision-making capacity. Leaving the people with that power to determine what government shall and shall not do, and further arming them with specific restraints on government both within the original text and the subsequent Bill of Rights, the Founders gave citizens powerful weapons with which to defend their liberties.

    They had not, however, counted on the pernicious effects of a modern political party system which renders almost moot the separation of powers at the heart of the constitutional check on executive overreach. America’s leading Founders (among them, Washington, Adams, Jefferson, and Madison) warned repeatedly against the creation of the kind of political parties we know today; limited and shifting factions were one thing but permanent factions were something altogether different, something to be feared. If there is one notable feature of today’s party system it is the extent to which American civil liberties are jeopardized by the tendency of congressmen to willingly defer to presidential claims of extra-constitutional authority if the President and congressman share a common partisan identity.

    My own personal experience with that problem came when President George W. Bush began to regularly claim the authority to disregard clear federal law – legislation that had become binding law with his own signature – because he felt it impinged on his own broad definition of executive powers and because, well, it would be inconvenient to have to actually veto legislation that combined provisions he agreed with and those he found troublesome, even though the veto is the only remedy constitutionally provided to the President when he finds parts of the legislation distasteful. 

  • July 11, 2012
    Guest Post

    By Erin Ryan, a Fulbright Scholar in China. She is a professor of law at Lewis & Clark Law School, where she will return this summer. Ryan is also author of Federalism and the Tug of War Within. Read her previous guest post “Health Care Reform and Federalism’s Tug of War Within.”


    In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the various arguments about how the commerce and tax powers do or don’t vindicate the individual mandate. But the most immediately significant portion of the ruling –

    and one with far more significance for most actual governance – is the part of the decision limiting the federal spending power that authorizes Medicaid. It is the first time the Court has ever struck down congressional decision-making on this ground, and it has important implications for the way that many state-federal regulatory partnerships work.

    The Spending Clause authorizes Congress to spend money for the general welfare. Congress can fund programs advancing constitutionally specified federal responsibilities (like post offices), and it can also fund state programs regulating beyond specifically delegated federal authority (like education).  Sometimes, Congress just funds state programs that it likes. But it can also offer money conditionally – say, to any state willing to adopt a particular rule or program that Congress wants. In these examples, Congress is effectively saying, “here is some money, but for use only with this great program we think you should have” (like health-insuring poor children).