It is certainly true that, in his “New Nationalism” speech, Theodore Roosevelt developed the theme that elite special interests had come to dominate government at all levels, thereby turning government into a tool for their own narrow purposes. President Obama is hoping that a return to this theme will resonate with voters today. However, while the connection between President Obama and Theodore Roosevelt has been widely reported, few commentators have recognized that these same ideas actually can be traced back to an earlier Republican president . . . Abraham Lincoln.

First of all, let us consider Theodore Roosevelt’s defense of an active federal government. In his “New Nationalism” speech in 1910, Roosevelt argued:

The absence of effective State, and, especially, national, restraint upon unfair money-getting has tended to create a small class of enormously wealthy and economically powerful men, whose chief object is to hold and increase their power. The prime need to[day] is to change the conditions which enable these men to accumulate power which it is not for the general welfare that they should hold or exercise. We grudge no man a fortune which represents his own power and sagacity, when exercised with entire regard to the welfare of his fellows. . . . We grudge no man a fortune in civil life if it is honorably obtained and well used. It is not even enough that it should have been gained without doing damage to the community. We should permit it to be gained only so long as the gaining represents benefit to the community. This, I know, implies a policy of a far more active governmental interference with social and economic conditions in this country than we have yet had, but I think we have got to face the fact that such an increase in governmental control is now necessary.

In Roosevelt’s view, the great industrialization of the America economy following the end of the Civil War had created an unprecedented degree of economic inequality. This economic inequality created a threat to democratic self-government:

At many stages in the advance of humanity, this conflict between the men who possess more than they have earned and the men who have earned more than they possess is the central condition of progress. In our day it appears as the struggle of freemen to gain and hold the right of self-government as against the special interests, who twist the methods of free government into machinery for defeating the popular will. At every stage, and under all circumstances, the essence of the struggle is to equalize opportunity, destroy privilege, and give to the life and citizenship of every individual the highest possible value both to himself and to the commonwealth.

The solution, according to Roosevelt, was for the federal government to police the private markets on behalf of the “have-nots,” in order to ensure that the “haves” do not use their concentrated economic power for objectives that are destructive to the common good. Theodore Roosevelt returned to this theme of the federal government as a counterpoint to the economic elite in his “Autobiography.” In that book, he summarized the evolution in his thinking that led to the “New Nationalism” speech:

[A] few men recognized that corporations and combinations had become indispensable in the business world, that it was folly to try to prohibit them, but that it was folly to leave them without thorough-going control . . . They realized that the government must now interfere to protect labor, to subordinate the big corporation to the public welfare, and to shackle cunning and fraud . . .

The more active federal government that Roosevelt envisioned did, in fact, come into being. The combination of two World Wars, and the response to the Great Depression, led to a more powerful federal government and the subordination of corporate power to government control. However, in recent decades the overarching trend has been towards deregulation and a reduction of government power. The result has been a reduced government role in policing the economy, and an increased anxiety on the part of workers and retirees who feel that they are at the mercy of market forces. It makes sense, therefore, that President Obama would return to progressive themes that speak to similar anxieties that existed during the Roosevelt era.

However, historian Heather Cox Richardson of the University of Massachusetts, Amherst has traced Roosevelt’s idea of an active federal government back to an even earlier Republican: Abraham Lincoln. In a 2010 article published in the Marquette University Law Review, entitled “Abraham Lincoln and the Politics of Principle,” Professor Richardson argued that Lincoln created a new idea of an activist federal government that focused on promoting economic progress for individuals. She points to Lincoln’s policies in support of homestead legislation, the creation of the Department of Agriculture, and the Land-Grant College Act.

Professor Richardson considers Lincoln’s speech in Milwaukee on September 30, 1859 as the first time that Lincoln publicly espoused his vision for an active federal government. He spoke of a federal government that did not leave poor laborers to their own devices, but rather that provided those born into the lower economic strata with the land and the education that these economically disadvantaged Americans could use as tools in order to better their condition. She summarizes:

Lincoln’s concern about the growing power of Southern slave owners in the 1850s convinced him that the government must not privilege an economic elite. Rather, it must leave the economic playing field free for hard-working individuals to rise. By 1859, the idea of government support for individuals had combined with his conception of a “nonpolitical” politics to suggest that ‘equality’ might mean something more active than simply staying out of the way of the man on the make. For decades, men had called for government promotion of individual economic advancement, an idea that Republicans like Lincoln were ready to adopt.

One important policy initiative of Lincoln’s was the promotion of higher education for all, not just for the wealthy. In 1862, Congress passed the Land-Grant College Act, using public land to fund state universities. A second important policy initiative was the establishment of a federal Bureau of Refugees, Freedmen, and Abandoned Lands in 1866 to create homesteads for freed slaves and poor whites in the aftermath of the Civil War. The purpose of this law was to break the hold of the Southern elite on the Southern economy, by promoting self-sufficiency for small farmers.

The fate of the so-called Freedman’s Bureau is telling. After President Lincoln’s death, President Andrew Johnson repudiated the idea that the federal government had any legitimate role to play in promoting economic advancement for the average worker. He attacked the Freedman’s Bureau as a giveaway of tax dollars to the “indigent.” Johnson also attacked the Freedman’s Bureau as a federal program that spent tax dollars exclusively for the benefit of blacks, when the reality was that the legislation was intended to foster farm ownership for poor whites in the South as well as poor blacks. As Professor Richardson summarizes: “Johnson’s equation – that government activism equaled special help for blacks paid for by hard-working taxpayers – became the equation that opponents of government activism have used ever since.”

Tomorrow morning, leaders of the current Republican Party will undoubtedly assail President Obama’s State of the Union address on the grounds that it engages in “class warfare” and divisiveness. However, it is worth recalling that the idea that the federal government should take the lead in reducing economic inequality in our society is an idea that has deep Republican roots.

Al-Awlaki’s assassination continues to draw heavy criticism both in the U.S. and abroad because he is believed to be the first U.S. citizen targeted and killed by the executive branch of the federal government without regard for Fifth Amendment due process.  Ron Paul published an op-ed in the New York Daily News expressing his outrage at al-Awlaki’s execution.  Paul, in response to what he calls the illegal murder of a U.S. citizen, is calling for President Obama’s impeachment.

The legality of the extrajudicial assassination of al-Awlaki was the subject of a civil suit in 2010.  After learning that his son had been placed on a CIA/Joint Special Operations Command “kill list”, al-Awlaki’s father brought suit in the U.S. District Court for the District of Columbia against President Obama, Secretary of Defense Robert Gates, and CIA Director Leon Panetta.  In an attempt to enjoin the executive branch from killing his son, al-Awlaki introduced several claims based in both constitutional and tort law.  The court’s lengthy opinion begins with a compelling recitation of the questions presented:

How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen –himself or through another — use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for “jihad against the West,” and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified? When would it ever make sense for the United States to disclose in advance to the “target” of contemplated military action the precise standards under which it will take that military action? And how does the evolving AQAP relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?

Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 8-9 (D.D.C. 2010).

Before contemplating the more compelling issues, the court first decided the issue of standing.  Al-Awlaki’s father lacked “next-friend” standing because he failed to provide an adequate reason justifying why Anwar could not appear in court on his own behalf.  His father claimed that if Anwar presented himself to authorities he would be exposed to attack.  The court disagreed, citing public government statements indicating that if al-Awlaki surrendered peacefully he could not be executed without due process.

The court also denied third party standing, holding that Anwar’s father could not show that a parent suffers an injury in fact if his adult child is threatened with a future extrajudicial killing.  Anwar’s status as an adult was of particular importance because a parent does not have a constitutionally (or common law) protected liberty interest in maintaining a relationship with his adult child free from government influence.

Prudential standing was denied because, among other reasons, the court refused to “unnecessarily adjudicate rights” that it believed al-Awlaki did not wish to assert himself.  The court noted that al-Awlaki made numerous public statements professing his contempt for the U.S. legal system.  Al-Awlaki did not believe that he was bound by U.S. laws because, in his view, they are contrary to the teachings of Allah.  I personally find it difficult to believe that a person would not want to contest his own assassination, but it also seems unlikely that al-Awlaki would wish to assert legal rights in a court system that he did not recognize as authoritative, especially in a country that he openly despised.

Ultimately, the most compelling issues were not addressed because the court found that judicial review was inappropriate.  The court held that separation of powers and the political question doctrine prohibited interfering with the executive branch’s orders with respect to military action abroad.   Meaningful review was deemed impossible, because it would require an unmanageable assessment of the quality of the President’s interpretation of military intelligence and his resulting decision (based upon that intelligence) to use military force against terrorist targets overseas:

[T]his Court does not hold that the Executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” (citation omitted), the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an “operational” member of AQAP, (citation omitted), presents such a threat to national security that the United States may authorize the use of lethal force against him. This Court readily acknowledges that it is a “drastic measure” for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a “terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009,”(citation omitted) But as the D.C. Circuit explained in Schneider, a determination as to whether “drastic measures should be taken in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking.” (citation omitted) Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims, the Court finds that the political question doctrine bars judicial resolution of this case.

Al-Aulaqi, 727 F.Supp.2d at 52-53.

It is unfortunate that the Aulaqi case never made it beyond the issue of standing, but perhaps that was the proper outcome.  Although Awlaki was a U.S. citizen (and a citizen of Yemen), he was also clearly a member of al-Qaeda.  Shortly after 9/11, Congress passed the Authorization for Use of Military Force (“AUMF”).  The AUMF provides that:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…in order to prevent any future acts of international terrorism against the United States…

Everyone (except for the guy who leaves “9/11 was inside job” comments beneath every news article on the internet) knows that al-Qaeda is the organization that planned and committed the terrorist attacks that occurred on 9/11.  Al-Awlaki was indisputably a member of al-Qaeda.  The Executive’s killing of al-Awlaki was certainly aimed at preventing future acts of international terrorism against the United States.  If the AUMF can be read as authorizing al-Awlaki’s killing, then it would appear that the President assassinated him with congressional approval.  In that scenario, Justice Jackson’s concurrence in Youngstown would indicate that the President was acting at the highest ebb of his authority.

Still, many columnists and politicians like Ron Paul believe that Obama’s decision was illegal on due process grounds.  Might Ron Paul be engaging in political grandstanding?  I do seem to remember hearing something about an upcoming election.  On the other hand, the AUMF only authorizes necessary and appropriate force.  In his suit against the Executive, al-Aulaqi suggested that imminence is the key factor in determining whether lethal force is justified.  It would have been interesting to find out what legal standard the court would apply to the use of lethal force on foreign soil against a member of al-Qaeda holding U.S. citizenship, but that issue was never addressed.

Was the force used against al-Awlaki necessary and appropriate?  It seems difficult to determine without a meaningful presentation of evidence against al-Awlaki.  Personally, I don’t think I’ll hold my breath waiting for the day that the general public is offered an explanation as to why al-Awlaki couldn’t be captured and tried in a U.S. courtroom.  It is troubling to know that the President can order the extrajudicial execution of a U.S. citizen based upon secret evidence.  On the other hand, it has been said that the Constitution is not a suicide pact, and it’s comforting to know that the President is tracking and killing those who are actively trying to kill Americans.

After reading the al-Aulaqi opinion, I was left feeling unsatisfied with the court’s decision to defer to the other branches of government, but I understood why it did so.  In many ways, the moral issue of al-Awlaki’s murder leaves me feeling the same way.  I think it’s unfortunate that al-Awlaki was not indicted, captured, and tried in Federal court.  I also understand that applying traditional due process to a terrorist abroad might create a logistical nightmare and place many innocent lives in danger.  Is this a slippery slope?  If so, wouldn’t requiring the judicial approval of military strategy abroad be just as slippery?  Either way, I respect those who speak out in favor of due process.  I also wonder how many of those people, if faced with the same choice as the President, would choose differently.

This almost certainly doesn’t put Ratner in the mainstream of American opinion, but it is consistent with what Ratner has advocated as president of the Center for Constitutional Rights, a New York-based non-profit organization, and as an attorney who has played key roles in defending the legal rights of prisoners at the military prison at Guantanamo Bay and in opposing interrogation techniques Ratner considers torture.

Ratner visited Eckstein Hall last week to speak to about 20 people at a lunch session of the American Constitution Society for Law and Policy, Milwaukee Lawyer Chapter.

Ratner realizes where the preponderance of American opinion lies on the killing on May 1 of bin Laden. “No one really cares whether he was lawfully killed or not,” he said. “People wanted him killed.”

President Barack Obama said justice was done. But to Ratner, justice being done would have meant putting bin Laden on trial. “The US has never actually put out the evidence that he (bin Laden) was” the master planner behind the attacks on September 11, 2001, against the World Trade Center in New York and the Pentagon in Washington, D.C., Ratner said.

Ratner said his organization has strongly advocated using the law enforcement model in approaching terror suspects, which is why it has led efforts to give those detained at Guantanamo rights such as habeas corpus. The US Supreme Court has ruled in favor of extending at least some rights to those at Guantanamo in cases in which Ratner played a role.

Ratner had little praise for President Obama’s work on issues such as using techniques many consider torture in dealing with terrorism suspects.  “We all had these great hopes for Obama,” he said. But two years after Obama became president and said he wanted to close Guantanamo, the military detention operation there looks more permanent than ever, Ratner said.

Ratner said that on the issues that are his priorities, Obama “has not been great.”  He gave the president credit for eliminating the secret prisons US agents had operated around the world. But Obama said at one point that the US should look forward, rather than backward, when deciding whether to consider action against those who gave permission to engage in extreme techniques for questioning terror suspects during the administration of President George W. Bush. Ratner called that “one of the most disingenuous statements I could hear. “ He said, “He’s looking forward to a country that may well torture again.”

All of this bears on two recent news stories: first, regarding Governor Walker’s bill requiring executive review of administrative rulemaking, and second, the budget repair bill’s adjustment of several positions in the executive branch from civil service to gubernatorial appointment.  The February bill on administrative rules requires that all regulations from state agencies be reviewed by the governor’s office before entering into force. Democrats opposed this bill on the grounds that it violates the “separation of powers,” the proper relationship between the executive, legislative, and judicial branches. State Senator Lena Taylor objected that the bill “breaks down the wall of independence around independent agencies.”  More recently, this week Democrats slammed the budget repair bill’s reclassification of several positions from civil service to gubernatorial appointment.

For instance, Assembly Minority Leader Peter Barca issued a release focused on the bill’s reclassification of the legal counsel at the Wisconsin Employment Relations Commission – the release characterized WERC as an “impartial,” “independent,” and “nonpartisan agency” at various points. The release closes with a quote attacking “self-declared CEO Walker.” The Journal Sentinel and Wisconsin Outdoor News also ran stories criticizing the “politicization” of these top positions at state agencies: chief legal counsel, spokesman, and legislative liaison.

The Wisconsin Constitution only creates three branches of government – legislative, judicial, and executive. There is no fourth branch called “independent agencies.” All executive power resides in the Governor (there are interesting wrinkles on the state level with elected cabinet officers, something that doesn’t exist at the federal level). The governor IS the CEO of Wisconsin government. And all officials in executive agencies are responsible for implementing the agenda which the people of Wisconsin elected the governor to advance.

It especially makes sense that policy-making and advocacy positions like legal counsel, spokesman, and legislative liaison are personally in line with the Governor’s policy agenda. The Governor’s executive power is specified in the Constitution – the civil service and independent agencies are nowhere to be found in that document.

Charles Evans Hughes (1862-1948) was one of the great luminaries of American Law.  He is the only individual to have served two separate stints on the Supreme Court (1911-1916 and 1930-1941, the latter as Chief Justice).  He also served as Secretary of State in the Harding and Coolidge administrations, and he and William Howard Taft are the only two men in American history to have both served on the Supreme Court and have been a major party nominee for president of the United States.  However, unlike Taft, who was elected president  in 1908, Hughes lost the presidential election of 1916 to incumbent Woodrow Wilson, although in terms of electoral votes, it was one of the closest elections in American History.  (Wilson won by an electoral vote margin of 277-254.  Had less than 2,000 Californians switched their votes from Wilson to Hughes, Hughes would have become the 29^th president of the United States.)

Hughes’ connection to Marquette came shortly after the 1916 election.  Although Woodrow Wilson ran for re-election with the slogan “He kept us out of war”[World War I], barely a month after the beginning of his second term, the U.S. declared war against Germany and the other Axis powers.  The declaration of war led to a mobilization of the American economy under the direction of the national government that was without precedent in American history, and at least some observers questioned the constitutionality of the actions of the Wilson Administration and Congress.

By the summer of 1917, Hughes had returned to the private practice of law in New York City, but he quickly came to the defense of the policies of his former rival.  In an address entitled “War Powers under the Constitution,” delivered to the American Bar Association at its annual meeting on September 5, 1917, Hughes endorsed the broad interpretation of presidential power embraced by President Wilson.  The address was widely hailed by those who supported the American war effort and thousands of copies of the address were distributed to newspapers and other groups by the ABA.

The address was also published as the lead article in Volume 2, Issue 1 of the Marquette Law Review, which appeared only a few months after the address was first delivered. The law review had been founded only the year before, and the journal received a major boost in credibility and visibility with the presence of Hughes already famous address in what was only its third issue.

As the Law Review itself noted at the opening of the issue, “The Marquette Law Review starts its second year as a legal publication with a great deal more confidence than it did the previous year.”  Being able to attract contributors of the stature of Charles Evans Hughes was indeed a reason to feel confident.

How it was that the Marquette Law Review acquired the rights to be the only law review to publish Hughes’ address is not clear.  The Review itself revealed no such information, although in an editorial it did thank Hughes for granting it permission to publish the address.  None of Hughes’ biographers make any reference to a Marquette connection; however, one is tempted to speculate that the connection came through faculty member Carl Rix, who was the law review’s faculty adviser in 1917, and who was an active member (and a future president) of the American Bar Association.

While Rix may be the connection, he did not attend the 1917 ABA meeting which was held in Saratoga Springs, New York.  In fact, that year only two lawyers from Milwaukee, Edward Fairchild and W. A. Hayes, attended the annual meeting , and neither had any connection to the Marquette Law School.

It may simply have been that some enterprising member of the law review staff came up with the idea of contacting Hughes and offering to publish his address.

In any event, its publication brought the law review a great deal of attention, and forever established a linkage between Marquette and Charles Evans Hughes.

Additionally, women are generally viewed as effective communicators while employing “feminine” communication styles, but have been chastised for taking on styles normally attributed to men. For example, Hillary Clinton has received continual criticism for talking too assertively. (For more on this, see my book chapter with others on gender, politics and negotiation or  my article comparing Clinton’s experience to female lawyers)  On the other hand, female candidates who are perceived as likable might also be trivalized.  (See a great Newsweek article from early July, Too Hot to Handle.)

Parker’s article seems to suggest, contrary to Campbell’s findings, that men are subject to equal amounts of criticism. What do you think? Would you agree that Obama’s style, in comparison to past presidents and to the stereotypical male politician, is “feminine” and that he is suffering as a result of that adoption? Is this sentiment true of other men who adopt the “listener” style?

Cross posted at Indisputably.

The one obvious consequence of this provision is to enhance the influence of the smaller states in the selection of the president.   Because of this provision, smaller states are disproportionately represented in the Electoral College.  For example, the 12 smallest states today—Alaska, Delaware, Hawaii, Idaho, Maine, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, Vermont, and Wyoming together account for only 17 (of 435) representatives in the House, or 3.9% of the total.  However, in the Electoral College, thanks to the “Senate bump,” the same states account for 41 electoral votes, or 7.6% of the total of 538.

Would the history of American presidential elections have been different, had this non-democratic element not been added to the Electoral College formula in 1787?  What if Electoral votes were calculated only on the basis of the number of representatives in the House of Representatives?  Have some presidential candidates been elected only because they captured the electoral votes of a disproportionate number of small states?

It turns out that the answer to the last question is yes, although the results of only three of the fifty-six presidential elections have been effected.  Not surprisingly, the three affected elections are also the three closest in American history.   

The first was the Hayes-Tilden Election of 1876.  Widespread voter intimidation and corruption in the South made it impossible to determine which of the conflicting returns from South Carolina, Florida, and Louisiana were accurate, and Congress ended up establishing a special Election Commission composed of Senators, Representatives, and Supreme Court justices to sort out the mess.  Apart from the merits of the Commission’s decision, the official count produced the closest finish in history, with Hayes edging Tilden by a single electoral vote, 185-184.  However, Hayes carried 21 states to Tilden’s 17.  Had it not been for the assignment of two additional electoral votes to each state, Tilden would have prevailed, the rulings of the Electoral Commission notwithstanding, 150-143.

The second affected election occurred in 1916 when Democrat Woodrow Wilson ran for reelection against Charles Evans Hughes who stepped down from the Supreme Court to run for president.  In an election in which Wilson’s slogan was the ironic “He kept us out of war,” Wilson edged Hughes by a margin of 23 electoral votes, 277-254.  In sharp contrast to the late twentieth and twenty-first century pattern, the Republican Hughes’ support was concentrated in urban areas in the North and Midwest, while Wilson was strongest in the smaller states of the West and South.  Wilson ended up carrying 30 states to Hughes’ 18, and if the two additional votes were to be subtracted for each state, Hughes would have prevailed 218-217.

The third election was the 2000 presidential election in which George W. Bush defeated Al Gore, albeit not without great controversy, by a margin of 271-266 electoral votes.  (The total electoral vote was 537  because one Gore elector refused to cast his ballot.)  As in 1916, but with the parties switched, Bush carried most of the smaller states while Gore’s support was stronger in the larger, more urban states.  With the two electoral vote bump removed, Gore would have won 225-211.

If we view the “Senate bump” in the Electoral College as undesirable, nothing short of a constitutional amendment can completely remove it.  A dramatic increase in the size of the House of Representatives, which is within the power of Congress, could have almost the same effect, in that the value of the extra two votes would be minimized, if there were, say, 870 members of the House of Representatives rather than 435.  However, a much larger House of Representatives does seem to be an item on anyone’s political agenda.

That the Electoral College with its strange features has survived for more than two centuries (and with no modification since 1804) is more than anything else a tribute to the stability of American politics and the narrowness of the American political spectrum.  Compared to most European countries, the left and the right in American politics are so close together that presidential elections usually have little real effect on the direction of the country.  The Electoral College may produce an occasional unfair result, but so far the consequences of the unfair results have not been significant enough to inspire a large numbers of Americans to demand change in the current system.

By common agreement, the Presidential term of James Knox Polk ended at noon on March 4, 1849. March 4 was a Sunday that year, and the decision was made to delay the inauguration of Zachary Taylor, the hero of the recently concluded Mexican-American War and the newly elected President, until Monday, March 5. Polk completed his final presidential duties on Sunday morning and then departed from Washington that afternoon.

Who then was President between noon on March 4, when Polk departed, and noon of March 5 when Taylor finally took the oath of office? 

Under the presidential succession statute in effect in 1849, the President Pro Tempore of the Senate was to assume the office of President of the United States if neither the President nor the Vice-President were able to do so. During the 30th Congress, David Rice Atchison, a senator from Missouri, had been the President Pro Tem of the Senate, and on the morning of March 5, 1849, he was reelected to the same post for the 31st Congress. Legend has it that Atchison spent the day of March 4 in bed, recovering from his participation in several parties held on the evening of March 3.

At the time, no one seemed to have noticed that the office of President had fallen vacant, and there is no contemporary evidence that Atchison himself suggested to anyone that he was the President. However, later in life — Atchison was only 32 on March 4, 1849, and he lived until 1886 — he frequently claimed that he had been President of the United States for one day.

The question of whether or not Atchison had actually been President was raised by a handful of commentators in January 2009, when Chief Justice Roberts botched the oath of office taken by President Obama. Obama retook the oath, correctly, the following day, but if a proper recitation of the oath is a prerequisite to becoming President of the United States, then who was President on January 20, and who was president on January 21? (Since Vice-President Biden had been sworn in at that point he presumably would have been next in line.)

There are, however, a number of problems with the claim that Atchison was President of the United States on March 4, 1849. First of all, he failed to take the oath of office, and the Constitution specifically states that the President must either swear or affirm the prescribed oath.

Even more problematic is the fact that Atchison was technically not the President Pro Tempore of the Senate on March 4, 1849. Under the practices of the day, the office of President Pro Tempore of the Senate was understood to expire when the current Congress recessed for the final time. The first order of business for the new Congress was to elect a new President Pro Tem, although it was not unusual for the Senate to reelect the previous holder of the position.

The Thirtieth Congress recessed on March 3, 1849, so Atchison’s term ended the day before Polk’s presidential term expired at noon. Moreover, his new term as President Pro Tem of the Senate during the 31st Congress did not begin until the morning of March 5. Consequently, if Atchison was eligible to serve as President, it was only during the time between his swearing in on the morning of March 5, and Taylor’s taking the oath of office at noon.

Actually, by this logic, Atchison’s already truncated presidency would have ended with the swearing in of Vice-President Millard Fillmore shortly before noon, and Fillmore’s presidency would have ended a few minutes later when Supreme Court Chief Justice Roger Taney swore in President Taylor. Ironically, Atchison terminated his own presidency (under this theory) when he, as the newly elected President Pro Tem of the Senate, swore in Vice-President Fillmore. (Fillmore, of course, became President “again” in July 1850, when Taylor died in office.)

As it turns out, the Sunday presidential inauguration problem has occurred a number of times in American history. Logically, it should occur once every 28 years or so, since there are seven days to the week and inaugurations occur every four years.

The problem first occurred on March 4, 1821, when James Monroe was President. His inauguration for his second term was delayed for one day, and no one at the time appears to have noted any gap in the presidency. John Gaillard of South Carolina, who served as President Pro Tem continuously from January 25, 1820, to December 2, 1821, never claimed to have been President on March 4, 1821.

The second incident was the one involving Taylor and Atchison. The third came in 1877, following the Hayes-Tilden race, the most contested presidential election in American history. Although the results of the election were not finally determined until Friday, March 2, Hayes, for religious reasons, refused to be sworn in on Sunday, March 4. Several Republicans, including outgoing President Ulysses S. Grant, feared that disgruntled Democrats might attempt to disrupt the inauguration ceremonies, so they encouraged Hayes to take the oath of office as soon as possible. Consequently, Hayes took the oath of office on Saturday, March 3, the day before the end of Grant’s term. He also took the oath a second time (without incident) at a public ceremony on Monday, March 5.

In 1917, Woodrow Wilson delayed his second inauguration until March 5, but as had been the case with Monroe a century earlier, there was no evidence of contemporary claims that the presidency had fallen vacant.

In 1933, the 20th Amendment to the Constitution moved the presidential inauguration date to January 20. The first conflict with the new date came on Sunday, January 20, 1957. President Eisenhower, who had been reelected the previous November, took the oath of office privately on Sunday, and then was publicly inaugurated the following day. Ronald Reagan took the same approach when the date of his second inaugural fell on Sunday, January 20, 1985. Either President Obama or his replacement will have to deal with this issue in three years, as January 20, 2013, will fall on a Sunday.

The logical answer here is that the newly elected President becomes President on the appointed day, whether or not he (or she) has an inaugural ceremony or takes the required oath. The supposed problem of a gap in the presidency in 1849 should remind us that for all of their wisdom, the Founding Fathers did not think of everything, and there are times when the Constitution requires us to use common sense to implement its central provisions.

A picture of the Plattsburg, Missouri tombstone of David Rice Atchison—which proclaims him “President of the United States for One Day”—can be found here.

I am indebted to Sean Samis for calling this anniversary to my attention earlier today.

The answer for many populists was easy—the veterans should not be swindled by greedy money men.  However, Treasury Secretary Alexander Hamilton knew that the price of the government breaking a contract was far more costly to a young nation’s character than the ephemeral outrage that many veterans felt.  As Hamilton told President Washington, “[t]he general rules of property, and all those general rules which form the links of society, frequently involve in their ordinary operation particular hardships and injuries.  Yet the public order and the general happiness require a steady conformity to them.  It is perhaps always better that partial evils should be submitted to than that principles should be violated.”

Because history has a way of repeating itself, it should come as no surprise that the debate over contract rights versus populist sentiment has returned with a vengeance.  The first sign of trouble came last March when President Obama urged Congress to sever the retention bonuses owed to several AIG derivative traders.  The outrage was understandable: AIG had gone belly up and was only kept afloat by the public dole.  However, the retention bonuses were agreed to before the TARP bailout; abrogating them would violate a clear contractual obligation.

This did not stop some members of Congress from seeking to pass a Bill of Attainder to recoup the bonuses via the tax code.  Congressman Barney Frank even threatened AIG CEO Edward Liddy with a subpoena if Liddy did not hand over the names of the AIG employees who received the bonuses.  Just what, pray tell Congressman, did you intend to do with those names? 

Not to be outdone on the outrage meter, Republican Senator Charles Grassley stated “I would suggest the first thing that would make me feel a little better toward them [the AIG executives] is if they follow the Japanese example and come before the American people and take that deep bow and say, ‘I am sorry,’ and then either do one of two things: resign or go commit suicide.  And in the case of the Japanese, they usually commit suicide.”  Goodness.

But the low moment came in May during the Chrysler bankruptcy proceedings.  The Obama administration was attempting to spare Chrysler from bankruptcy court by selling Chrysler’s assets to a new company owned by the United Auto Workers (UAW) and Fiat.  The only problem for the administration was that a group of plucky Chrysler bondholders refused to sell their assets on the grounds that they could get a better deal in bankruptcy court.  Because these bondholders were secured creditors, they were entitled to first priority under bankruptcy law rules.  These bondholders rightly pointed out that they owed their shareholders the fiduciary duty to hold out for the best deal possible.

But bankruptcy court would have been bad for the UAW (as it was a junior creditor), so the Obama administration brought out the brass knuckles.  Thomas Lauria, the attorney for the group of bondholders, stated that his clients were threatened by the Obama administration into taking a haircut.  For a brief moment, it appeared as if the bondholders would fight it out in court, but eventually they relented in the face of governmental pressure.  Lauria said that his clients decided against a legal battle once they concluded they could not “withstand the enormous pressure and machinery of the U.S. government.”  Bankruptcy Judge Redfield T. Baum quipped that the bondholders had about as much of a chance of winning against the federal government as “the gentleman in Tiananmen Square when the tank came rolling in.”

As we dig ourselves out of the Great Recession, investors must cope with an additional risk: the threat of government abrogation of legal rights for political reasons.  Even Warren Buffet bemoaned the Chrysler situation: “If we want to encourage lending in this country, we don’t want to say to somebody who lends and gets a secured position that the secured position doesn’t mean anything.”

 Russell Kirk once noted that “[u]pon the foundation of private property, great civilizations are built.”  Ignoring these rights is how they fall.

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.