Is it Time for More Than Just “Thoughts and Prayers”?

This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is the first of those blog posts, this one written by 2L Michael Van Kleunen.

Since the high school shooting in Parkside, Florida, we have seen an arguably unprecedented response from citizens and politicians speaking out on the topic of gun control and the extent to which a policy should be implemented. However, the National Rifle Association (NRA) and other gun rights groups have maintained a strong stance against policies that limit the proliferation of guns in the United States, basing their argument on the Second Amendment.

These groups have profoundly affected political rhetoric and the subsequent legislative landscape for decades. Recent polls have shown a majority of Americans would like to see Congress pass some kind of gun control legislation. But why has it taken so long for such policies to move forward? One key reason is the amount of campaign contributions issued to politicians who occupy vital positions that, inherent in their position, facilitate the creation and passing of legislation. (more…)

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Marquette Law Review Article Featured in Prescription Painkiller Exposé

In cooperation with 60 Minutes, the Washington Post has published a fascinating new story about the behind-the-scenes efforts of actors in the pharmaceuticals business to soften regulatory enforcement at the just the time that the nation's opioid problems were reaching epidemic proportions. The story would be an engaging read for anyone, but Marquette folks may note a particular point of interest: the Post prominently quotes a forthcoming article in the Marquette Law Review. According to the Post story, the federal Drug Enforcement Administration has long had authority…

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Should the Senate Give Advice and Consent on Special Envoys?

Potograph of an antique globe of the world showing the continents and nations circa the 1800s.Last month the Senate Foreign Relations Committee passed the Department of State Authorities Act, Fiscal Year 2018, part of which would effect a major change in the law of foreign affairs appointments. With Congress’s summer recess now coming to an end, it’s worth considering the constitutionality of the proposed change and contemplating the Trump Administration’s potential response.

The key provision concerns ad hoc diplomats. Section 301 would require the Senate’s advice and consent for the appointment of “any Special Envoy, Special Representative, Special Coordinator, Special Negotiator, Representative, Coordinator, or Special Advisor.” On my reading, accompanying language suggests that this requirement would apply regardless of whether the positions in question already exist, regardless of whether Congress has authorized them by statute, and regardless of whether appointments have already occurred. As an enforcement mechanism, Section 301 would bar the obligation or expenditure of funds for any covered position to which an appointment is made without advice and consent. The only exception is for positions that extend for short periods of no more than six months and are certified by the Secretary of State as “not expected to demand the exercise of significant authority pursuant to the laws of the United States.”

This strikes me as a pretty big deal. Anytime the President seeks to designate an envoy to address a pressing issue, he would have to obtain the Senate’s approval. The Senate would thus be statutorily positioned to vet a whole new class of nominees, scrutinize and publicly debate the policies these individuals will implement, and, in extreme cases, block appointments that appear problematic. An optimistic take is that such an arrangement would promote meritocracy and encourage greater deliberation in the use and selection of ad hoc diplomats. The more pessimistic view is that Senate involvement would interfere with the conduct of foreign relations by introducing an additional source of delay and partisanship.

Whatever one makes of the practical merits of Section 301, there’s a sensible constitutional objection: Article II confers on the President the power to conduct foreign relations, the executive branch has invoked this power to justify a common practice of unilateral diplomatic appointments, and Congress has largely acquiesced. Indeed, ever since the Foreign Service Act of 1980, Congress has expressly accepted that the President may appoint envoys without advice and consent for special missions of up to six months in duration, as long as the President notifies the Senate Foreign Relations Committee in advance. In purporting to end this practice, Section 301 arguably violates the separation of powers. (more…)

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The Teachings of Elections Past

john_quincy_adams_-_copy_of_1843_philip_haas_daguerreotypePart Five of a Six Part series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.

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

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

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

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

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

As to a run-off presidential vote, this has happened only once since 1804. (more…)

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

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

“Do we have to?” Ribble replied.

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

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

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