The life of Economic Substantive Due Process

Economic substantive due process can be understood as the right to be free from burdensome governmental regulations. There are numerous cases that deal with this idea and at one point it was a popular idea. The Supreme Court created its power but, like they sometimes do, they eventually stripped it away. It’s recent definition is different than what it was meant to be when it first debuted on the political stage.

The use of economic substantive due process played an important role for the Supreme Court for about six decades.We saw at the beginning that the court gave more power to the states  in cases like Lochner v New York and Adkins v. Children’s hospital. I would like to focus on Lochner for a second because this was the case that created a firm foundation for SDP and was the case that a lot of Justices referenced in their opinions. The background for the case is New York passed a law called the Bakeshop Act,which limited the amount of hours a baker can work. The Act was put in place to protect the health of bakers. Lochner, owned a bakery in New York and repeatedly violated the act and so he challenged the constitutionality of the law. The Supreme Court ruled in a 5-4 ruling with Peckman giving the opinion that the law was unconstitutional. They stated that it violated the economic substantive due process right to contract, under the 14th Amendment. The thought was that if there was a limit on the amount of hours that an employee then the employer is limited on his ability to contract with them. I think that most people will agree that this decision does not make a lot of sense, but at the time that was the dominating idea. Justice Holmes dissented said in his opinion that the court should let this happen and the good businesses will survive and the bad ones will die out. From the early 1920’s to the late 30’s we see substantive due process dominate the stage.

Then in 1929, the stock market crash ignites the Great Depression. With the election of President Roosevelt the public opinion shifted towards a more regulated economic approach. President Roosevelt presented the New Deal as the answer to the hard times. At first the court had much resistance to the changes and knocked down most of the New Deal legislation. Be then, starting with West Coast Hotel Parrish v. Parrish we start to see the decline of economic Substantive due process. The court shifted gears and repeatedly rejected Substantive due process attacks on both state and local economic regulatory policies. which started the practice of letting the legislative branch determine what was reasonable. Justices would state in their opinions that we need to trust the legislative branch to do their job because they now best in these situations.

In my past posts I have talked about the New Deal and how the Supreme Court was able to influence the executive by pushing back on a lot of President Roosevelt’s New Deal legislation. This more detailed understanding of economic substantive due process shows us that there was “sound” logic behind the resistance and that maybe if President Roosevelt didn’t win, the country would have taken a much different course of action. I think that many Americans and politicians were scared of what would happen if they allowed more regulation to take place, would the government become to powerful? Would business be hindered? What if nationalization started to happen? All of these were valid questions for the time period.

I think that we overlook the person in the office, when we are focusing on the legal side of legislation. But, I think we have to dedicate credit to President Roosevelt, not just the office of the president, because it would be easy for a president to just accept the defeat from the Supreme Court and not push for his policies.

 

 

 

 

 

 

Shaping the Government

After the Great Depression President Franklin Roosevelt created the New Deal initiative to jump start the country’s economy. In order to provide relief, legislation like the Agricultural Adjustment Act, the Fair Labor Standards Act, and the Wagner Act, just to name a few, were put in place. Unfortunately, President Roosevelt’s plan was not met with open arms and there was much resistance from the Supreme Court.

The nickname of the four conservative Justices who opposed most pieces of the New Deal legislation where Justices Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter. This example of the Separation of Powers shows us how the Supreme Court can really limit the power of the president on legislation.

We can look at Black Monday as an example of the Courts unanimous opposition to the New Deal legislation. On May 27, 1935, the court announced unconstitutional decisions on three cases dealing with President Roosevelt’s policies. The cases were Humphrey’s Executor v United States, Louisville Joint Stock Land Bank v. Radford, and Schechter Poultry Corp v. United States.

President Roosevelt was not completely helpless, he had a plan to swing the Supreme Court votes into his favor. This new legislative initiative was called the “court-packing plan” and would have granted the President the power to appoint additional Justices to the Supreme Court for every current member of the court over the age of 70. And there could only be a maximum of 6 new appointees, enough to sway the odds into the New Deal favor.

This interaction between the Supreme Court and the President is a great example of how the branches can influence each other. And how when the ideology of the majority of the court is different from that of the president we see resistance and tension. Are we sure that this much power of the Supreme Court is a good thing? What if President Roosevelt’s New Deal initiative could have helped the country climb out of the economic great depression sooner if they would have been upheld? These are important questions we need to think about in regards to the power of the Supreme Court. I know that earlier in my blog posts I was fully behind having a powerful Supreme Court to maintain justice in our government, but now I am not so sure.

Of course this power struggle is not only between the judiciary and the executive, we can also see problems between congress and the president when they are of different party’s, often road blocking each others legislation. And if they are not actively blocking legislation they are threatening to knock it down or filibuster. Balance of power is very important, but what good is the government if they can not make any progress? Just something to think about.

Congressional-Presidential interaction

There are several different ways that regimes are set up in countries all over the world. The parliamentary system, the presidential system, and the semi-presidential system are the most common among democratic societies. Many people assume that the parliamentary and presidential systems are pretty much the same, but they have important differences. The difference I would like to highlight is the relationship between the executive and the legislature. In a parliamentary system the executive and legislator are fused, meaning the prime minister comes from the parliament. In a presidential system, the executive and legislature are separate, which means the president is elected apart from congress and has its own powers independent of the legislative branch. These differences effect how the government is run, how policy is derived and passed, and how much power each part of government has.

“It is one thing to be subordinate to the laws, and another [for the Executive] to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands.” – Alexander Hamilton, Federalist No. 71

Since there is this separation of power between congress and the president in the United States, there has to be laws and guidelines for the power granted to each branch and the relationship that they have with each other. We can look at the Constitution for some of the ways it shapes the congressional-presidential interaction. Article One and Article Two describe how each branch is to be set up and how it should function, along with the powers specifically granted to it. However, not everything is outlined in the Constitution, so when one branch tries to create a power for itself the third branch, the judiciary, must step in to check the constitutionality of that power.

Sometimes we see congress create power for itself, like the legislative veto that is written into  delegated powers to the president. This clause allows for congress to veto laws that come from the executive, when it is using a delegated power. But sometimes congress tries to create power for the executive, for example, the line item veto. This power would allow a president to strike out a line of a law and still pass it. Both of these laws were brought in front of the Supreme Court and ruled unconstitutional because the constitution has a clear veto process that must be followed.

We can see in just these two small examples how the relationship between the president and congress is important in shaping the powers each of them have. And the important rule that the Judicial Branch plays in maintaining a balance of power and legitimacy in the government. Sometimes they work cooperatively, while other times they are in strong opposition but no matter what they have to work together to run the country.

The reading I looked at for this post was chapter nine, The Senate and the Executive from the book Esteemed Colleagues: Civility and Deliberation in the U.S Senate by Roger Davidson and Colton Campbell.

http://www.jstor.org/stable/pdf/10.7864/j.ctt127z7v.12.pdf?acceptTC=true

Blog Audit

Lets take a chance to review what I have discusses so far in my blogs, and see how ideas have progressed and developed from the beginning of the year. The general topic that I chose to focus on for my blog was the Executive branch. When reading over my posts, I would say about half of them correspond to what we have discussed in class that week. I really enjoy being able to cite specific court cases, which I did more in my first couple posts and then stopped doing. I hope to bring that back in and also add more articles for the reader to also look at the relates to my post.

A lot of my blogs have pertained to power, whether it be powers of the executive branch, or powers of the other branches of government that influence the executive branch. Some of these examples are executive privilege, constitutional avoidance, and judicial deference. These are all broader topics that I have gathered from the book or through law review articles that I have read online. I notice that this is a somewhat different approach from my other classmates, who talk about current events. My post on presidential legacies was my first and only one that referenced current events. I like this post and I think that in these next leg of the class I would like to try and tie current events to the topics we are discussing in class. Maybe, since the Supreme Court has recently started a new session I can use some of their upcoming cases in my blog and talk about how I think they will decide.

This week I would like to discuss and analyze the power that the Supreme Court has. And if they do have too much, is there a need for more checks by the other branches of government. The Supreme Court is the final interpreter of the Constitution and is the final upholder of justice in our political process. Their decisions impact many Americans’ lives and so sometimes their decisions are highly publicized and under scrutiny. Cases on popular issues like gay rights, marriage, legalization of marijuana, and abortion attract attention from all over. The final decision for these issues lay in the hands of a few people, but what if they are wrong. Alexander Hamilton talked about the Judicial branch as being the least dangerous branch, because it was not in charge of money or the military, but what if they were given too much power because of this? Perhaps this harmless branch has given itself too much power throughout the years. So then what happens when a decision that is made by the Supreme Court is not only unjust, but a violation of rights?

There is always the argument that because of lifetime appointments and other safeguards, the Justices will not be influenced by outside forces and will therefore make the right and just decision. But, what if these safeguards that have been put in place are not enough and the Court makes a decision that is fundamentally wrong that the president and the majority of the country disagree with? Nothing can change the decision, the Supreme Court is the final authority over our government and so perhaps there should be more checks on them and maybe the Judicial branch overall.

Now, I write this blog with a couple cases in mind, all of which deal with discrimination in different forms. First, there is the Board of Trustees of the Union of Alabama vs. Garret where the court decided that state employees cannot sue the State for discrimination of people with disabilities under the ADA. Second, is Kimel vs. Florida Board of Regents where they decided that you could not sue the state for discrimination of age? There are laws and Acts that are in place to prevent discrimination and protect the rights of the disabled and elderly, however in both of these cases the courts did not protect these rights. Which gives the state’s power to violate individual’s rights by discriminating against people with disabilities, and there is nothing they (state employees) can do about it.

These two court decisions are scary examples of how the Supreme Court has maybe too much power. Now these two rulings were made in favor of sovereign immunity of states, so that they cannot be sued by individuals. However, in Nevada Department of Human Resources v. Hibbs, which dealt with the Family Medical Leave Act and sex discrimination, they ruled that individuals were allowed to sue. Giving sex discrimination higher priority over other discrimination cases.

These three cases are an example of how the Supreme Court has used its power to grant protection to only certain people. When discrimination is a serious problem in our country and giving states immunity to it is a violation of the rights of people with disabilities.

Judicial Deference

Executive power is a broad outline of powers given to the President to fulfill his duties. During times of war or conflict these powers are often tested. Presidents usually use them to their fullest potential, in ways that may be seen as overstepping their power. While the Judiciary analyzes their actions to make sure they are within their constitutional power. When we look back at cases we sometimes do not understand the Supreme Court’s decision in these instances, because it clearly seems that the power is being overstepped. Often times in these situations there are outside threats or national emergencies that are greater than the threat of the government. So the Supreme Court sides with the president, which is called judicial deference.

We can look at World War II and the steps the government took to ensure safety of the homeland after the bombing of Pearl Harbor by the Japanese. At first there were curfews set for people of Japanese descent to not be out after a certain time. When these were not working the government decided to take it a step further and placed all Americans of Japanese descent in internment camps, taking them away from them everything the owned. At the time this was seen as being necessary in order to protect the country of invasion and attack. It was even upheld by the Supreme Court in Korematsu v The United States (1944), where the majority opinion stated that this was not a racial discrimination but that we were at war and it is hard to know who to trust.

Now we look back at these internment camps and we often forget that we did that to our own people. It is often overlooked in history classes and textbooks because I think it is something we look back on and realize was wrong. There is no way that it wasn’t a racial discrimination, but at the time the fear of invasion was greater than protecting the rights of these Japanese American citizens.

We saw this partly creep up after the terrorist attacks back in 2001 with racial discrimination and racial profiling of men and women from the Middle East and of Muslim religion. At the time the country was mostly in agreement that something needed to be done immediately. But then, a couple years later we pull back and want less government influence

Overall when there is an external threat on the safety of our country, we see an expansion of powers for the president in his role as Commander in Chief. I think this is one of the unique parts of our government which allows flexibility to adjust to what is going on at the time. If the powers were strictly confined and limited then our history may have looked a lot different.

An article from The Yale Law Journal that goes into more detail is “Disastrously Misunderstood: Judicial Deference in the Japanese- American Cases” by Jonathan Justl, which reviews government actions during national emergencies.

Establishing Limits and Balancing Power

The Doctrine of Separation of powers sets up three branches of government to help balance the powers of the government. Each branch has its own powers that allows them to check the other branches. In the United States we often think of each branch as its own distinct institution with its own separate powers, but that is not really true. Many powers are shared by all of the branches like making laws for example. We typically think that it is the legislative branches job to make laws and the executives job to enforce them. But, in reality all three branches can do it. The judicial branch can do through their rulings in cases. Therefore, the lines can become blurred when it comes to who has what powers and that is were limitations are needed.

The Supreme Court has issued many rulings that both limit the powers of the legislative and executive branches.  But, also help balance the power between all three of the branches. Limits usually come out when one of the branches tries to use an inherent or implied power not explicitly written in the constitution.

We can look at two examples where limits were put on powers created for the legislative and executive branch. The first is when President Clinton presented the Line Item Veto Act to congress, which congress passed. This would allow the president to veto one line out of a bill instead of vetoing an entire bill that may be a good legislation. The Courts heard this in Clinton v. City of New York and ruled that this was indeed unconstitutional. The majority said that the veto power was a very specific process outlined in the constitution and striking out parts of legislation violates that veto power. This Act was attempting to amend the constitution through law. An alternative for the president then, is to issue a signing statement along with the law that is basically a presidential note on the legislation.

The other example is the legislative veto, which can be used to veto a law that the executive created with power that congress gave to it. These vetoes exist because they are placed into laws which delegate power to the executive branch. in INS v. Chadha the Supreme Court also ruled that this veto power was unconstitutional, under similar grounds of Clinton v City of New York. The veto process as outlined in the constitution does not list the legislative veto as a power and therefore, it is unconstitutional. These are just two easy examples to understand of how the Judicial branch has limited the powers of the other two branches. Which is its job to maintain a balance of power between all three of the branches.

It is obvious that our government is a lot more complicated than just three branches all separate with their own powers. I believe that when the branches share power and create new powers they are truly carrying out their job to the fullest. I can not imagine what the government would look like if each branch only stayed strictly within the narrow lines of their enumerated powers.

Presidential Legacies

In our country’s history there have been many great men who have sat in the Oval Office, leaving behind legacies to be printed in history books and taught in classes for years after they are gone. However, on the other hand there are many more men who have sat in the same seat that have been forgotten and if you were to hear their name you would not recognize it as being the leader of the most powerful country in the world. It is true that great legacies come out of times of hardships, war, and great change, so for some presidents who sat in office in times of peace and stability they didn’t leave behind any notable legacy. President Lincoln who faced a very difficult presidency is known for his great leadership and ability to hold the country together even when it was amidst a succession.

Many scholars say that there are two versions of the presidency that a president will experience, the first is the active one, where he deals with current issues and unplanned problems. The second, is the one that we actually remember, just highlighted details and a vague summary of events.

President Obama’s legacy will have several notable highlights, one of which will be the Affordable Care Act. The ACA was a monumental win for the Democrats and will definitely find a place in history books and classrooms. But it wasn’t all smooth sailing, the ACA was put to the test twice by the Supreme Court. The fate of Obama’s great legacy was in the hands of nine black robed individuals; and Obama knew it.

In 2012 the Supreme Court first heard National Federation of Independent Business v. Sebelius and decided 5-4 that the Affordable Care Act legislation was constitutional under Congress’s power to tax. They also ruled that it was unconstitutional for the government to pull Medicaid funding to states who did not participate in the expansion. Then in 2015 the Court heard King v. Burwell the court upheld a challenged provision of the law that outlined tax credits to individuals in the states. Thus the Affordable Care Act has survived two Supreme Court cases and looks like it will be a part of President Obama’s legacy in the years to come.

Constitutional Avoidance

This week I will be looking into what constitutional avoidance is and how it relates to the executive branch. The avoidance doctrine, also referred to as constitutional avoidance or avoidance canon, and is used in Constitutional Law. The canon dictates that federal courts should not rule on constitutional issues if the case can be answered in a non-constitutional way. This doctrine comes out of judicial self-restraint and is brought up in discussions about judicial power. However judges do not simply dismiss the case, first they must have a preliminary discussion on the whether or not their is a constitutional question at all in the case.

The Avoidance Canon has also been used as by the courts as self-protections like in  INS v. St. Cyr for example. In this case Congress attempted to strip the courts of certain powers and jurisdictions and to remedy the issue the Supreme Court enacted the avoidance canon.

One of the articles that I looked at was from the Columbia Law Review, which I will link below, and it questioned if the executive branch should practice the same methods of avoidance of which the courts use. Morrison listed several instances in our recent history where the constitutional avoidance doctrine was used by the executive. Here are some of the examples, most of which you have probably heard of, “the initial torture memorandum issued by the Justice Department’s Office of Legal Counsel, the President’s signing statement regarding the McCain Amendment’s ban on the mistreatment of detainees, and the Justice Department’s defense of the National Security Agency’s warrantless wiretapping program.” However, the question isn’t how it has been used, but if the executive branch should have the power at all.

It is understandable for the courts to have this power but does it also include other branches of government? Or is the executive overstepping its power? I think that this is an interesting topic to further investigate because it covers a lot of issues that are important to the entire nation. When the wiretapping controversy first came out, there was a lot of coverage on the developments. The public was very attentive to the information being relayed and people are still very concerned about how it was being handled by the government. Now should issues like this be subject to constitutional avoidance? I am not sure, but I do think that it is a serious conversation to be had.

Ultimately Morrison concluded that several factors go into deciding whether or not the avoidance doctrine justly resides within the executive. For one, many people do not believe that it is in the courts jurisdiction to practice the canon. Therefor, it has no place in the executive. Among the people who agree with the jurisdiction, there is room for interpretation.

Constitutional Avoidance in the Executive Branch by Trevor W. Morrison http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1045&context=lsrp_papers

Another article that I looked at was Constitutional Avoidance, Step Zero by Anthony Vitarelli from the Yale Law Journal

Executive Privilege

This week I would like to discuss Executive Privilege; what it is and how it has changed over the years. The basic idea of executive privilege is that it it grants constitutional power to the president and other members of the executive to withhold information from congress. The fascinating part of this privilege is that it is not written in our constitution, however to many ordinary citizens this idea probably seems common place. Executive privilege is an idea that I have heard about and was aware of but when I decided to research it for discussion I realized it indeed was not mentioned anywhere in the constitution. This constitutional principle is derived directly from a long history of precedent. A precedent embedded enough into our society that some people assume it part of the constitution. This is not to say it has gone unchallenged, many scholars actually reject this principal and argue that it does not exist. Some arguments have even been laid out in Supreme Court case hearings like in Mississippi v. Johnson, the petitioner stated that the president is not above the law and that the Supreme Court has judicial power over all cases under the constitution, not excluding the President. In Nixon v. Fitzgerald it was argued that the checks and balances system advises against the idea of absolute immunity and if absolute immunity does exist then the presidents actions must be defended to be within his authority.  The last argument was presented again in Clinton v. Jones, which acknowledged precedent for immunity, but rejected personal privilege for civil suits or otherwise unrelated to presidential duties. From these few examples we can see that this precedent has been challenged, but in many ways has been upheld with of course limitations being imposed. There has clearly been a balancing act between the branches to create clear, fair, and constitutionally sound precedent. Which seems fairly laborious, it would make more sense if there were legislation passed to clearly define what this power would and would not protect. Even thought the conversation has come up in Congress no initiatives have ever been made.  Maybe the next time that a case is brought forth there will be more motivation to develop a statute. Which we may not see for a while since in recent years presidents have refrained from flexing this privilege for the past controversies surrounding it. This power is mainly associated with political scandals and administrations do not want to be caught up in the wrong image. Overall I think that this is an interesting example of how our government works around issues not explicitly set out in the constitution and that are not clearly defined by the Supreme Court.

An interesting article that I read while researching this topic was The Constitution and Executive Privilege by Mark Rozell which can be found here: http://www.libertylawsite.org/2012/07/12/the-constitution-and-executive-privilege/

Rozell also wrote an article called “The Law”: Executive Privilege: Definition and Standards of Application that was in The Presidential Quarterly