How much is at stake? Included in the material was a list of how much each state could potentially receive. For Wisconsin, the figure was $150 million to $250 million.

It is unlikely Wisconsin actually will get that much. It appears there are some points where Wisconsin will score well (atmosphere for creating charter schools), and other points where Wisconsin will not do well (track record on closing achievement gaps, such as the one between white and black students).

Each state’s application will be judged by committees still being formed. The rubric assigns points to each of more than a dozen areas of interest, with a total of 430 possible points. Among the areas carrying high point potential: “Improving teacher and principal effectiveness based on performance,” 58 points; “turning around the lowest-achieving schools,” 40 points; and “ensuring successful conditions for high-performing charter schools and other innovative schools,” 40 points.

Make no mistake — this will be a competition. President Barack Obama made that point in his speech last week in Madison and Secretary of Education Arne Duncan underscored it in interviews accompanying the release of the final rules. Obama said this was much different than the usual federal program that makes sure everyone gets something. Duncan said there will be more losers than winners in the process. Furthermore, the final say on the grants lies with Duncan. Congress does not have to approve, which will reduce the interest in appeasing anybody (or everybody).

States have until mid-January to submit applications for the first of two rounds of awarding grants. That’s a big reason why Gov. Jim Doyle has been pushing for fast action by the Legislature on a range of proposals related to education. Some were approved last week, but the fate of others — the more controversial ones — remains to be seen. Still no word on whether there will be a special session of the Legislature in the next several weeks to consider ideas such as giving Milwaukee’s mayor the dominant power in governing Milwaukee Public Schools.

Is it required that Wisconsin approve mayoral control in Milwaukee to win Race to the Top money? There is nothing in the final rules that says you have to have mayoral control. But Duncan has a lot of latitude to make decisions on his judgment, and he is firmly partial to mayoral control. Doyle and Milwaukee Mayor Tom Barrett say that, as a practical matter, Duncan and the people who will score the grant applications will want to see approval of overhaul of MPS governance as a sign that Wisconsin is serious about change.

One: Obama said, “I’ve got to be honest, we’ve got to do a better job of moving bad teachers out of the classroom, once they’ve been given an opportunity to do it right.” His calls for recruiting higher-quality teachers and rewarding top teachers better didn’t get applause, but this line did. Secretary of Education Arne Duncan said in a telephone interview after the speech that this didn’t surprise him — it happens wherever the president speaks about education, he said. Raising the quality of teachers, in large part by doing more to identify quality teachers (and those who aren’t) is one of the highest, but most difficult, priorities for Obama and Duncan. And moving out the ones who really aren’t good at it is especially difficult, particularly given the defensiveness of teachers’ unions when such issues come up.

Two: His call for overhauling the way testing is done nationwide. 
He said he didn’t want to see more testing. “What we want to do is finally get testing right.” he said. This drew applause, and so did a line about getting test  results back to teachers in a short enough time to be useful. Wisconsin’s current testing regimen means students are taking the annual tests this month, but schools won’t get results for several months. This is hugely unpopular in the state, with educators arguing it leaves results almost useless to them. One of the highest priorities for a revamping of the state testing system is speeding up the cycle.

Three: His call for parents to do more to be part of the education process. ”Lifting up American education is not a task for government alone.  It will take parents getting more involved,” Obama said. (He then digressed into an anecdote about his daughter Malia struggling with tests in science, which also clearly struck a chord with the audience.) Duncan said the call for parents to do more also consistently generates warm reactions. A subject of huge importance but formidable complexity, parent involvement is getting more attention from educators across the U.S., including in Milwaukee. There appears to be a growing belief that schools can do more than simply throw up their hands when it comes to parents, and that strategies exist to lead many parents to become better allies of their children’s education.

Although Arthur is frequently seen as Millard Fillmore primary competition for the title of “Most Obscure President in U.S. History,” the circumstances of his birth have raised questions eeriely similar to those asked about President Barack Obama by the birthers. 

Before 1880, Chester Arthur was a minor New York City politician who was a protégé of Sen. Roscoe Conkling of the Empire State.  Although he was a prominent lawyer, he had never run for, let alone held, elective office at any level.  Nevertheless, at the 1880 Republican Presidential Convention in Chicago, he was added to the Republican national ticket as the running mate of presidential candidate James Garfield.  Arthur was selected to balance the slate geographically — Garfield was from Ohio, part of the Midwest in an era when regions mattered — and to placate Sen. Conkling, a presidential aspirant himself and the leader of the Stalwart faction of the Republican Party.

In 1871, President Grant, with Conkling’s blessings, had appointed Arthur to the lucrative position as Collector of the Port of New York.  However, seven years later, he had been removed from that position by President Rutherford B. Hayes, as part of a presidential effort to crack down on the spoils system.  Although there was no evidence of real corruption at the custom house while Arthur was Collector, it was also clear that Arthur had no objections to padding the Collector’s payroll with loyal Republicans. Once elected, Arthur remained loyal to Conkling and the spoils system, and he and Garfield clashed repeatedly on questions of federal appointments, which led Garfield to ban Arthur from the White House.

However, on July 2, 1881, Garfield was assassinated by Charles Guiteau, a deranged supporter of Conkling, who, after shooting the president, shouted, “I am a Stalwart of the Stalwarts . . . Arthur is president now!”  Guiteau’s two shots actually did not prove to be fatal, and Garfield lived until September 19, when he was finally done in by a combination of infection and poor medical care. 

Although he was a product of, and, at least initially, a supporter of the spoils system, as president Arthur actually turned out to be fairly progressive and a strong supporter of civil service reform.  In 1883, he signed the Pendleton Act, which established the first Civil Service Commission.  Although he sought his party’s presidential nomination for 1885, he was not renominated by the Republican Party.  Even so, he left office widely respected by members of both parties.  Even Mark Twain begrudgingly acknowledged that “it would be hard indeed to better President Arthur’s administration.”

Questions of Arthur’s eligibility for the nation’s highest office surfaced during the 1880 campaign.  Arthur was the son of an Irishman who emigrated first to Canada and the then to the United States, and who finally became a naturalized United States citizen in 1843, fifteen years after his son Arthur’s birth in 1829.  Arthur’s mother was a United States citizen born in Vermont but whose family emigrated to Canada where she met and married her husband.  By the time of Arthur’s birth, his parents had moved back to Vermont. 

The controversy over Arthur’s citizenship status centers around the place of Arthur’s actual birth.  By one account he was born in his family’s home in Franklin County, Vermont.  If this was true, then he was clearly a natural born citizen.  On the other hand, the competing account has it that he was born during his pregnant mother’s visit to her family’s home in Canada. 

If the latter story is true, then Arthur was technically foreign-born, and in 1829, citizenship in such cases passed to the child only if the father was a United States citizen, and, of course, at this point Arthur’s father was still a citizen of the British Empire.

The principal advocate of the “born in Canada” theory was Arthur’s fellow New York lawyer Arthur P. Hinman who was hired in 1880 by the Democratic Party to investigate Arthur’s ancestry.  Hinman initially undermined his owned credibility by embracing an argument that Arthur was himself born in Ireland and didn’t come to the United States until he was fourteen years old.  That story was patently false and easily disproven. 

However, Hinman later discovered acquaintances of the Arthur family in Canada who told him the story of Arthur’s accidental Canadian birth.  Convinced that he now had proof of Arthur’s foreign citizenship, he published his findings in 1884 in a short book entitled How a Subject of the British Empire Became President of the United States.  Hinman’s book appeared near the end of Arthur’s presidency, and no official action was ever taken on the basic of his alleged evidence.

Arthur himself always insisted that he was born in Vermont, but he may not have known the place of his birth. By the time he was six years old, his family had left Vermont for New York, and he never lived in the Green Mountain State again.  It is possible that his parents considered the circumstances of his Canadian birth to be personally embarrassing and never shared the details of the story with him.

An investigation by the Boston Globe earlier this year — no doubt inspired by the Birther controversy — confirmed that there are no official records regarding Arthur’s birth in either Vermont or in Canada.  See Boston Globe, “Chester Arthur Rumor Still Lingers in Vermont,” August 17, 2009.

We will probably never know if Arthur was really eligible to be president of the United States in 1881.

Furthermore, his call for college football to institute a playoff system to determine the champion of what most people still call Division 1A football has fared no better.  Although such a change has admittedly not been a top priority of Obama’s administration, he did quite openly throw his support with those opposing the current BCS championship system (based on polls and giving priority to the teams that make up the six so-called BCS conferences)  both during the campaign and after he was elected. 

Support for Obama’s position seemed to congeal at the end of the 2008-09 college season when the BCS formula left undefeated University of Utah out of the BCS championship game and undefeated Boise State and Texas Christian University (which would finish the season ranked #7 in the country in the AP poll) out of BCS bowl games altogether.

On January 9, 2009, eleven days before Obama’s inauguration and the day after one-loss Florida defeated one-loss Oklahoma for the BCS championship, Rep. Joe Barton of Texas, the ranking Republican on the House Energy and Commerce Committee, introduced a bill that would prohibit as a “deceptive practice” the promotion of a postseason NCAA Division I football game as a national championship game unless it was the final game of a traditional playoff.   Barton represented a district that abutted Fort Worth, the home of TCU, and his bill was co-sponsored by fellow Texas Republican Michael T. McCaul and the peripatetic former Black Panther Bobby Rush (D-IL), whose constituents include Barack and Michelle Obama.  

Six days later, Democrat Neil Abercrombie of Obama’s native Hawaii proposed a somewhat less dramatic approach when he introduced a nonbinding resolution calling for a playoff system and for a Justice Department investigation into the legality of the BCS system under the federal antitrust laws.  Abercrombie’s resolution was endorsed by Lynn Westmoreland (R-GA), Jim Matheson (D-UT), and Michael K. Simpson (R-ID), all of whom represented districts lacking teams in BCS conferences.  The following day, a third bill was introduced, this time by Republican Gary Miller of California.  Rather than label the BCS system a fraud (as Barton’s bill would do) Miller’s proposal denied all federal funds to schools in the Division I Football Bowl Subdivision unless the championship game resulted from a playoff system.   

However, the movement to force the NCAA to adopt a playoff system quickly ran out of steam once the new president was inaugurated.  Although  Barton and Miller endorsed each other’s bills and Abercrombie’s resolution, and Abercrombie signed on as a co-sponsor of Miller’s bill (but not Barton’s), only two other congressmen, Ken Calvert (R-CA) and  John Carter (R-TX), subsequently endorsed any of the above legislation.  Barton and Miller’s bills both died in committee in January while Abercrombie’s resolution was apparently tabled in March.  Hearings conducted in May by the House Energy and Commerce Committee’s Commerce, Trade and Consumer Protection Subcommittee attracted almost no attention.

The idea that Congress might intervene on behalf of a playoff was briefly revived in July when Sen. Orrin Hatch of Utah, the ranking Republican on the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights held hearings on the legality of the BCS system.  Although Hatch’s hearings primarily focused on the possibility of the Justice Department prosecuting the NCAA under the federal antitrust laws, they appeared also to revive the idea of direct congressional intervention.  During the Hatch hearings, Congressman Barton, who had earlier denounced the BCS as a form of Communism, predicted that if the NCAA did not adopt a playoff system by the start of the next season, Congress would intervene and impose one itself. 

Well, the NCAA did nothing, and Congress followed suit.   The president, presumably, was busy with other matters. 

Given the reluctance of Congress to interfere with the sports industry, even after 50+ years of investigatory hearings, in matters of franchise relocation, expansion, pay television, and performance-enhancing drugs, it would have been shocking had it been moved to act in regard to what is clearly a matter of style rather than substance. 

But now that he has two strikes, the president should be careful before he takes another swing at the sports industry.

[Thanks to John Foust for bringing several misspellings in the original version of this post to our attention.  Eds.]

Most presidents take the oath of office twice in their lives only if reelected.  Yesterday night, Barack Obama took the oath – again –  from Chief Justice John Roberts because of the miscues during the inauguration ceremony the day before.  The media’s take, thus far, is to poke fun at what is called the “do over,” the “flub heard around the world,” (MSNBC) and the “oaf of office” (courtesy of the New York Post).  Yet at the same time, we are assured that Obama’s first oath was essentially good enough or perhaps even unnecessary for him to assume the presidency because the new term began at noon on January 20, 2009 regardless.  Yale’s Akhil Amar obligingly opined on NBC that the second oath was akin to “wearing both a belt and suspenders.” 

Personally, I’d find it somewhat unsettling if Obama began wearing a belt along with suspenders, so I think it is worth our time to take seriously an event that obviously the President and the Chief Justice took quite seriously.   I am very much impressed that Obama and Roberts thought the oath significant enough to warrant the second ceremony.  Clearly it was not done to deflect the embarrassment of the day before; indeed, the second oath only underscored their abject failure to recite correctly the 35 word oath – hardly a pas de deux.  I also doubt that either Obama or Roberts fretted about the legality of the inauguration ceremony; the second oath was not intended to avoid crack pot law suits.  

Rather, the message sent by both the Chief Justice and the President is that both men so value the words of the oath and their official responsibilities that they are willing to endure a fresh round of chiding and gentle ridicule.   Essentially, the second duet acknowledged the mistake made by two very smart, well-educated men the day before when, apparently, their nerves and wits partially failed them before hundreds of millions of people worldwide.  Imagine that.   Hindsight suggests that they should have just started over on inauguration day, prefaced perhaps with some gentle humor that would have captured this quite human undertaking.  That did not happen.  But the second oath, administered by the robed Chief Justice in comparative calm and privacy a day later, tells us that they take such matters seriously, that they are willing to acknowledge mistakes and rectify them.  It coincided nicely with Obama’s call to “restore the vital trust between people and their government” and to inaugurate “a new era of responsibility – a recognition, on the part of every American, that we have duties[.]”  

Obama’s second oath is, one hopes, a sign that he will candidly acknowledge and correct the missteps and mistakes that will inevitably occur as he “faithfully execute[s]” the sworn duties of his office while acting to “preserve, protect, and defend the Constitution of the United States.”   The oath is a small duty, but Obama’s attention to it augers well that he will closely attend to his more daunting responsibilities.

Update:  Jessica Slavin mistakenly took initial credit for this wonderful post when she posted it on behalf of Professor Dan Blinka this morning.  Sorry Dan!

Given these conditions, it is curious that some have anticipated one of the most prominent pieces of reform that will come on the heels of the inauguration to be the Freedom of Choice Act.  First introduced in 2004, its substantive provisions prohibit the government (defined as a “branch, department, agency, instrumentality, or official (or other individual acting under color of law) of the United States, a State, or a subdivision of a State”) from:

(1) deny[ing] or interfere[ing] with a woman’s right to choose–

(A) to bear a child;

(B) to terminate a pregnancy prior to viability; or

(C) to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman; or

(2) discriminate[ing] against the exercise of the rights set forth in paragraph (1) in the regulation or provision of benefits, facilities, services, or information.

What I wish to note here is that this legislation is inconsistent with calls for bipartisanship and unity issuing from President Obama himself during his campaign.  Religious leaders, conservatives, and Republicans are already up in arms over this legislation.  Democrats (and President Obama) know that these groups vehemently oppose the bill.  To make this legislation a priority and equate it in importance with the much-heralded (but in my opinion extraordinarily ill-advised) economic stimulus plan is to destroy any goodwill among conservatives and Republicans that might exist for our new President — and there is quite a bit thanks to his extraordinary foreign policy team.  This is not to suggest that the measure of opposition to a bill should be any gauge of its value.  But for a candidate who spoke much about rising above partisanship, many conservatives would view the President’s signature on this particular legislation as a poke in the eye. 

We understand that in the wake of what are nationally unifying events — the peaceful transition of power and the election of the first African-American to be President — a great undercurrent of worry and fear and uncertainty remains.  President Obama can seize on the energy generated by his historic achievement to further unify the country and work to resolve the most pressing crises impacting our nation.  But that course is not certain, and the path of the next four years might be foreshadowed by the events of the next few months.

I know: there are any number of things lame duck presidents can do that should probably be reviewed and reconsidered before we get to presidential pardons. I also understand that the pardon is a valuable tool that allows the executive branch to swiftly undo so-called “travesties of law,” setting free the wrongly convicted. Yet the Slate article got me thinking about whether it isn’t worth considering a check on this particular executive power sometime soon, both on a state and federal level (though the misuse tends to be more egregious on the federal level).

Is it really fair that Bush is able to pardon (for example) Scooter Libby as he’s walking out the door? What about Clinton and his brother Roger, or Marc Rich? For that matter, assuming you agree that what President Nixon did was criminal, how about Ford pardoning Nixon minutes after Ford took office? There’s a pretty obvious reason why presidents wouldn’t make these pardons until they had one foot out the door: no one would let them get anything else done for the rest of their presidency if they tried this mid-term. But what kind of message does it send to people when Patty Hearst can be pardoned because of who her family is, while a state defendant in the same position serves hard time?

Furthermore, what about the implications of pardoning on the sentencing guidelines and mandatory minimums? In Wisconsin, OWI charges become felonies as of the fifth offense (which is far too high, in my opinion, but that’s a story for another post). As governors have as much power to pardon state crimes as presidents do for federal crimes, what if Governor Doyle pardoned someone’s OWI-fourth conviction? If that person gets convicted again, wouldn’t it be another OWI-fourth? If so, that’s the difference between a misdemeanor and a felony conviction, the difference between a possible maximum sentence of one year versus six years. This problem is only exacerbated at the federal level, where — particularly with drug crimes under the Controlled Substances Act — prior convictions can jump the sentencing thresholds significantly. Really, what’s to stop an outgoing executive from pardoning someone’s prior convictions at the same time that the person is facing current charges? Sure, you can argue that the P.R. would be horrible, but I guarantee you most people don’t think about Clinton’s pardons in calculating his worth as a president now.

Finally (and this is a point I only realized tonight), acceptance of a pardon — at least at the federal level — carries with it an admission of guilt. Hence, in order for people to get pardoned, they have to essentially admit that they committed the crimes for which they’re being pardoned. Now, this isn’t as much of an issue when the pardon goes to someone already convicted (though I’d like to note the irony in pardoning someone for being wrongfully convicted while at the same time making the person agree that he or she did it as part of the pardon.) But what about those people pardoned while facing civil and criminal charges for the same act? If accepting a pardon means admitting guilt, than wouldn’t that work the same way that a guilty plea does (i.e., it basically makes the civil suit an open-and-shut case)? If you’re an attorney representing a client on both cases, how would you advise your client if a pardon were extended? If you do take it, your client’s dodged a criminal conviction, but basically handed a blank check to the plaintiffs in the civil suit; if you don’t take it, your client will have to roll the dice on both cases.

I’m not saying that pardons are an entirely bad thing. I think that anyone could point to completely valid pardons as evidence that the pardon power works. Still, I was raised with the moral viewpoint that if you’re unwilling to say or do something in public, you shouldn’t say or do it in private. Pardoning people as you run away from the conflict seems a bit cowardly to me, and when every president does it as he leaves office just because he can, while rarely (if ever!) doing it while in office, it may be time to review whether the power needs tweaking.

The current neoconservative majority of the United States Supreme Court and the lesser appellate courts will make it difficult for a new presidential administration to bring the change needed to correct the imbalances fostered by the Bush Administration. Because the development of antitrust law is driven more by the courts than by the executive branch (especially when one is trying to open the spigot to allow application of antitrust law to police the marketplace, as against using the government as a bottleneck), the new administration may have little effect in its efforts to rein in the excesses wrought by the Chicago School theorists. Still, like the Bush Administration, the new administration can use its executive branch powers to foster practical doctrines. By challenging the unsupported parts of the Chicago School doctrine (e.g., fear of free riders where none seem to appear) and showing respect for administrative agency determinations, the new administration may enable a revival of antitrust law protection against the abuses in vertical distribution and elsewhere that have been sheltered by the Bush Administration.  A healing of the open rift between the Antitrust Division of the Department of Justice and the Federal Trade Commission that has simmered for many years and finally erupted over the past year may foster more effective cooperation and thereby better protection of the marketplace. 

Still, whenever the Antitrust Division, the FTC, or private parties bring antitrust actions, the judicial theorists are very likely to apply standards set by the Chicago School dogmatists.  Consider the willingness of the neoconservative members of the Supreme Court last year (in Leegin Creative Leather Products, an antitrust case, when addressing a substantive standard of proof that had been actively upheld for almost a century) to abandon the stare decisis standards that had been endorsed by some of the same neoconservative jurists a year earlier in Wisconsin Right to Life.  This augurs poorly for the prospects that their judicial activism will be stilled by a new administration. Indeed, even the ability of the FTC to bring reasoned application of the antitrust laws administratively has been undermined by the neoconservative jurists, who have not avoided treading on the historic fact-finding role of administrative agencies. Although a new presidential administration may change the focus of enforcement by the Department of Justice, it may take many years to undo the actions of the neoconservative majority of the current Supreme Court and of the Bush appointees in the lower-level United States courts.