The Teachings of Elections Past

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Category: Congress & Congressional Power, Constitutional Law, Election Law, Legal History, Political Processes & Rhetoric, Public
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john_quincy_adams_-_copy_of_1843_philip_haas_daguerreotypePart Five of a Six Part series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.

In the run-up to Election Day, maps of the United States will be colored in as red or blue. This so-called “electoral map” is the focus of all the debate, particularly for the presidency, with pundits asking what color the “swing states” will shade. Of course, the maps don’t show green, purple, or even different tints of red or blue. There are only two colors, red or blue. So why is that?

Without getting too far in the weeds, as it were, and from a political science view, the shading is based on the “winner-takes-all” principle. One party wins and everyone else loses. When a party loses, that party is without representation. Weaker parties are pressured to join a more dominant party in hopes of gaining a voice. This leads to party-dominance. Voters learn that, because of party dominance, voting for a third party candidate is ineffectual to the result, and hence alignment into a two-party race between winners and losers.

And, in terms of the presidency, by devising a system of “electors” as opposed to popular vote, history teaches us that an indirect electoral-election scheme can lead to odd results.

The elections of 1876, 1888, and 2000 produced an Electoral College winner who did not receive at least a plurality of the nationwide popular vote. What did this mean? It meant that in 2000, Al Gore received 543,895 more popular votes than George Bush, yet lost the election. The same was true for Samuel J. Tilden (New York) losing to Rutherford B. Hayes in 1876 and Grover Cleveland (New York), the incumbent President, losing to Benjamin Harrison (Indiana) in 1888.

There is also tie-breaker history. Per the Twelfth Amendment, a candidate must receive an absolute majority of electoral votes (currently 270) to win the presidency. If no candidate receives a majority of electoral votes in the election, the election is determined by the House of Representatives. The House chooses the President from one of the top three presidential electoral vote-winners. (A run-off vote for Vice President belongs to the Senate.)

As to a run-off presidential vote, this has happened only once since 1804. Read more »

Ribble Eager to Discuss Issues, Not Presidential Race at Law School Program

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It was more than a half hour into an hour-long conversation with Rep. Reid Ribble, a Republican who represents much of northeastern Wisconsin in the US House of Representatives, when Mike Gousha, the host, said he wanted to talk about the presidential election.

“Do we have to?” Ribble replied.

Well, yes. You can’t exactly ignore it these days. But Ribble made it clear that he would much rather talk about issues that are central to the nation’s future, and he would much rather if everybody else did, too.

That’s why the first 25 minutes or so of the “On the Issues with Mike Gousha” program at Marquette Law School on Tuesday focused on Ribble’s proposals for altering Social Security to assure the system functions well for many decades to come. Read more »

How Many Years Does It Take to Bake a Constitution?

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articles_of_confederation_13c_1977_issueAs the first Tuesday following the first Monday in November approaches — that is, National Election Day — the talking-head debate intensifies over candidates, politics and what is right/wrong with the American system of governance.  There is one missing piece to the debate — context — that is seldom discussed, or understood. Indeed, if the average voter dislikes the candidates and the election process (something I hear a lot), then it’s time to take a step back and look at the big picture question of how we got here. In what I hope will be a six part series, I will attempt to provide context to our system of government, our election process and, hopefully, a little history to evaluate and consider in your next candidate-debate.

Part One – How Many Years Does it Take to Bake A Constitution?

If you polled the average American citizen, asking if they heard of the Declaration of Independence, most would answer yes. The citizen might even know the year and date — July 4, 1776.

But ask the same citizen when the Constitution of the United States was adopted (which technically means when it was “ratified” by the States), and you’ll likely get a blank stare, an “I don’t know”, or a guess — likely July 4, 1776.

The correct answer to that question is: June 21, 1788. Read more »

The Senate Must Consider Supreme Court Nominations in Due Course

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Category: Congress & Congressional Power, Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, U.S. Supreme Court

Ford-Potential-Nominees-to-CourtToday, the Senate Majority Leader, Mitch McConnell, announced the unprecedented decision that the United States Senate will refuse to consider any nominee put forward by President Obama during the remainder of his term in office to fill the current vacancy on the United States Supreme Court.  Senator McConnell said, “My decision is that I don’t think that we should have a hearing.  We should let the next president pick the Supreme Court justice.”

The refusal of the United States Senate to consider any nominee put forth by President Obama is a clear violation of the Appointments Clause of the United States Constitution.  Under the Appointments Clause (Article II, Section 2, Clause 2):

The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . .

The role of the President is to appoint nominees to the United States Supreme Court.  The role of the Senate is to provide their “advice and consent” to the President on the specific nominee.

The meaning is “advice and consent” is clear and uncontroversial.  The Framers of the Constitution recognized that absolute monarchs such as the King of England had abused the power to appoint public officials.  This abuse was due to the monarch’s absolute power to appoint anyone they chose.  In response, the Constitution divided the power to appoint superior public officials and Supreme Court Justices between the Executive (the President) and the Senate.  The Framers of the Constitution diffused the appointment power, just as they diffused several other powers among separate branches of the federal government in order to guard against abuse.

However, the separation of the power to appoint into two pieces is not split 50-50 between the President and the Senate.  Rather, the split is made between the President’s absolute power to select any nominee he or she chooses, and the Senate’s power to accept or reject the nominee.  The intent of the Appointments Clause is to give the Senate a check on the President’s choice, in order to prevent nominations that result from corruption, cronyism, or the advancement of unqualified nominees (i.e., family members).  The Appointments Clause does not give the Senate any role in deciding who or when the President will nominate.

In fact, the Senate has no pre-nomination role at all in the appointment process.  The Senate’s only role under the Constitution arises after the President makes a nomination.  In this regard, it has often been remarked that the power of initiative lies with the President under the Appointments Clause. Read more »

Ted Cruz as a Natural Born Citizen

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Ted Cruz[The following is a guest post from Professor J. Gordon Hylton, a former member of the Marquette Law School faculty.]

The debate continues over the eligibility of Sen. Ted Cruz for the United States presidency under the Constitution’s “natural born citizen” clause in Article II, Section 1. (Art II, §1 provides, in part, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President, neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”)

The question is whether the Canadian-born Cruz, whose mother, but not father, was a United States citizen, qualifies as a “natural born citizen.” Unfortunately, the neither the Constitution itself nor the surviving records of the Constitutional Convention of 1787 define the phrase “natural born citizen,” and the Supreme Court has never offered an authoritative interpretation of the clause.

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Judge Brett Kavanaugh Calls for “Rules of the Road” for Separation of Powers Issues

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Judge Brett M. Kavanaugh

So Dez Bryant of the Dallas Cowboys leaps for a pass as the playoff game with the Green Bay Packers is about to end. He comes down with ball on the one-yard line. Or does he? Or course, you know the answer—he doesn’t, the referees rule, a call that is hotly debated nationwide (and helps the Packers to victory in the Jan. 11 NFL playoff game).

The referee’s call required making a decision on the spot under great pressure and scrutiny. But to Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D. C. Circuit, a big reason the call was made in a way that stood up to later scrutiny was that the rules for deciding what was a legitimate catch were established ahead of time, with thought and clarity.

And that is, in substance, much of the message Kavanaugh delivered in the 2015 Hallows Lecture at Marquette University Law School on Tuesday. The lecture, titled “Separation of Powers Controversies in the Bush and Obama Administrations: A View from the Trenches,” examined five different policy areas where controversies over separation of powers at the top of the federal government have arisen in recent years. In all five areas, Kavanaugh said, it pays off when “the rules of the road” are developed before a crisis comes.  Read more »

Ribble and Pocan: Political Opposites Find the Attractions of Working Together

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Reid Ribble says that when Mark Pocan was elected to the House of Representatives in 2012, Ribble was told by some Republican legislators in Madison he should reach out to Pocan.Ribble said then-Rep. Tammy Baldwin did the same for him when he was elected in 2011.

So Ribble contacted Pocan, and the two developed a friendship that has seen them work together in friendly, civil ways, including in the work of the House budget committee, on which they each serve.

What’s so unusual about that? Only this: Ribble is a Republican who represents the Appleton-Green Bay area in Washington. He is a self-described conservative with a libertarian bent. Pocan is a self-described progressive liberal Democrat who represents the Madison area. (For that matter, Baldwin, who helped Ribble on his arrival and who is now a senator, is one of the most liberal members of Congress.)

You just don’t do that cross-the-aisle stuff in the divisive, highly partisan atmosphere that surrounds Congress.

Or do you? Ribble and Pocan are now leading figures in a growing effort called the No-Labels Problem Solvers, which brings together members in the House and Senate from both parties in informal social settings, just to get to know each other. Ribble was one of the four initial members of the group, which has grown to more than 90, including two other Republican representatives from Wisconsin, Sean Duffy and Tom Petri.

At an “On the Issues with Mike Gousha” session Monday at Eckstein Hall, Pocan and Ribble described the effort and their hopes that it will change the way Congress handles many issues and raise the low-opinion so many Americans have of Congress. Read more »

Two Americas

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The federal government is now shutdown. What happens next is anyone’s guess, especially since we hit the debt ceiling in two weeks and still have to pass an actual budget to fund the government. To get out of the current stalemate, one compromise that has been floated is for Congress to pass a continuing resolution – funding the government until November – along with the “Vitter amendment.” The Vitter Amendment would prohibit Congress from exempting itself from Obamacare. So what is the controversy over Congress and its staffers having to purchase healthcare on the exchanges? What are the issues with Congress exempting itself from Obamacare? And what does it say about our legislature?

In 2009, during the peak of the legislative debate over healthcare reform, Senator Chuck Grassley (R) inserted an amendment in Obamacare that required all members of Congress and their staffers to purchase health insurance on the newly-created health insurance exchanges. Of course, members of Congress wouldn’t be alone in doing this. Starting today, millions of Americans are utilizing the exchanges. Read more »

In Case You Missed It: We’re Still Heading Towards a Debt Crisis

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These past few weeks have seen their share of crisis and controversy in the nation’s capital. But, yesterday’s news from the CBO is significant and should not be missed. It will play a major role in the debt ceiling and budget debates that will highlight the next two months.

Yesterday, the non-partisan Congressional Budget Office (CBO) released its annual report on the long-term budget projections for the federal government. Their conclusion: despite the sequestration cuts and tax hikes on the rich from last year, the United States is still on a path towards a debt crisis because we have not reigned in our spending on entitlements.

According to the CBO, “[t]he $2.1 trillion in spending cuts passed by Congress in 2011 won’t curb the growth of entitlements that poses a fiscal-crisis risk in the next 25 years.” (Bloomberg). Consequently, by 2038, the public debt will be equal to the total output of the U.S. economy. And as The New York Times described it, “lawmakers have been cutting the wrong kind of federal spending as they try to avoid the unsustainable buildup of debt that is projected in the coming decades.”

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Is It Time to Expand the Size of Congress?

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Seal of US House of RepresentativesOn August 8, 1911, President William Howard Taft signed a bill authorizing an increase in the size of the House of Representatives from 391 members to 433. A provision in the bill also provided that two additional members would be added in 1912, following the scheduled admission of New Mexico and Arizona as the 47th and 48th states, and thereby raising the size of the House to 435, which is still the size of the House.

This means that since the admission of Arizona as the 48th state on Valentine’s Day, 1912, the size of the House of Representatives has remained unchanged for the 101.5 years. (The admission of Alaska and Hawaii in 1959 increased the size of the United States Senate from 96 members to 100, but a decision was made at that time to keep the size of the House at 435.)

The 1910 Census reported the population of the United States as slightly more than 92 million people. In comparison, the figure for 2010 was slightly less than 309 million, an increase of more than 330%. This means that every Congressman today represents more than three times as many people as his or her counterpart of a century ago. Read more »

What Difference Did the Constitution’s Three-Fifths Clause Really Make?

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We the PeopleThis is one in a series of posts relating to slavery and the Constitution as part of Marquette University’s observation of the sesquicentennial of the Emancipation Proclamation during the 2012-2013 academic year.

The United States Constitution’s infamous “Three-Fifths Clause” dictated that for purposes of representation in the House of Representatives African-American slaves were to be counted as less than full persons. The somewhat obliquely worded section of Article I, Section 2, provided:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Although this provision has traditionally been cited as evidence that the Constitution was a pro-slavery document (though never actually using the term “slavery”), historians have more recently begun to emphasize the “anti-slavery” aspects of the clause, or at least to argue that it reflects an ambivalence toward slavery among the document’s drafters. Since white women and children, free blacks, and property-less whites were counted as full persons for enumeration purposes, even though they lacked the right to vote, hold office, or serve on juries in most situations, the decision to treat enslaved people differently from others who lacked full citizenship rights was clearly to the disadvantage of those who lived in states with large slave populations.

The actual effects of the Three-Fifths Clause on Southern representation in the House of Representatives were not as significant as one might think. As it turns out, counting slaves as full persons would not have shifted the balance of power in the House of Representatives to the South at any point between the ratification of the Constitution and the onset of the Civil War. Read more »

Does Federal Law Actually Preempt Relaxed State Marijuana Laws?

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Category: Congress & Congressional Power, Constitutional Law, Criminal Law & Process, Federalism, Public, Speakers at Marquette

Federalism & MarijuanaThe Cato Institute’s Ilya Shapiro recently spoke at the Law School concerning the status of relaxed state marijuana laws in light of the federal Controlled Substances Act’s continued prohibition of activities that these state laws now allow. This is a timely question with, it turns out, a less-than-certain answer. More precisely, it demands an answer that is more nuanced, and less categorical, than one might initially be inclined to give.

One’s initial answer is likely that these state laws are preempted—that is, rendered void and unenforceable—because of the federal statute. It is conventional constitutional doctrine, after all, that the U.S. Constitution’s Supremacy Clause makes valid federal law supreme over conflicting state law. Moreover, because the U.S. Supreme Court in Gonzales v. Raich (2005) deemed the federal marijuana prohibition to be a valid exercise of Congress’ commerce power, the specific question of whether state marijuana laws are vulnerable to preemption seems already to have been answered.

Mr. Shapiro makes an important observation, however. Read more »