The Law, Continued

For Monday: Lowi, ch. 9.

Election in Wisconsin

The Court System

• Guide to Supreme Court decisions
• Tocqueville (p. 270): “There is hardly a political question in the United States which does not sooner or later turn into a judicial one”  
• NATIONWIDE INJUNCTIONS

Edwards v Aguillard

Amicus briefs

Decision and opinions

Edwards v. Aguillard oral argument (start around 26:00)

From Topkis's comments -- an example of the value of slow reading:

Now, this bill was of course drafted by a theologian, or somebody versed in apologetics.

There's an amusing bit of evidence on that subject in the very language of the bill.

The bill keeps using... the Act keeps using the term "evidences" in the plural.

We lawyers never speak of "evidences" in the plural. We speak of "evidence", the singular.

And I got nagged by it, and I looked it up the other day.

And of course the only dictionary reference to "evidences" is to Christian apologetics: the evidences for Christianity. This is a matter of theological disputation.

Tocqueville (p. 267): "Nothing could be more obscure and out of reach of the common man than a law founded on precedent…. A French lawyer is just a man of learning, but an English or an American one is somewhat like the Egyptian priests, being, as they were, the only interpreters of an occult science."

• SCOTUS demographics
• The Senate and Supreme Court nominations

Debate over court makeup

Judicial activism (Lowi 2665-268)

Clarence Thomas:



In hearings, senators try to get judicial nominees on the record.  NOTE WHAT ALITO SAYS (START AT 18:45) ABOUT STARE DECISIS.





Merrick Garland and "the Biden Rule" 

Gorsuch and the nuclear option 

KBJ

Blue Slips and Senatorial Courtesy (Lowis 247-248)

The Law

 For next time:  

• Edwards v. Aguillard (482 U.S. 578 (1987)), https://supreme.justia.com/cases/federal/us/482/578/case.html. Read the syllabus, skim and sample the opinions.  See background materials here:  https://www.oyez.org/cases/1986/85-1513.

Two words to know about the law:  legal fees.

Some basic distinctions

Statutes, Regulations, Judge-made law

The Dangers of the Law

• Tocqueville (p. 267): "Our written laws are often hard to understand, but everyone can read them, whereas nothing could be more obscure and out of reach of the common man than a law founded on precedent.”
• How many federal crimes are there?
• Prosecutorial discretion
• Three felonies a day
• Costs
• Most district attorneys  are elected officials.
• "In most developed countries, particularly in continental Western Europe, Canada, and Japan, prosecutors are resolutely nonpolitical and nonpartisan. They are expected to make decisions about individual cases on their merits, without regard to public attitudes, opinions, and emotions or to politicians’ preferences or priorities. In the United States, however, local chief prosecutors in 45 states are elected (Perry 2006).1 In the federal system, US attorneys are appointed on the basis of partisan and sometimes ideological criteria. American prosecutors sometimes openly and unashamedly take media reactions, public opinion, and political considerations into account when deciding what cases to prosecute and how to handle them."
• Most sheriffs are elected officials.
• Many states elect judges -- key Wisconsin race is under way right now.

Trials and Juries

• Less than three percent of criminal cases go to trial.  The rest end in plea deals.
• The "joy" of jury duty
• My jury experience
• Also watch this clip from the 1959 movie Anatomy of a Murder. Read background here, which explains why law school profs show this clip in courses on criminal law.  Note: the scene includes brief references to sexual assault.
• Tocqueville (p. 275):

Juries invest each citizen with a sort of magisterial office; they make all men feel that they have duties toward society and that they take a share in its government. By making men pay attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.

Juries are wonderfully effective in shaping a nation’s judgment and increasing its natural lights. That, in my view, is its greatest advantage. It should be regarded as free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law, lessons which the advocate’s efforts, the judge’s advice, and also the very passions of the litigants bring within his mental grasp. I think that the main reason for the practical intelligence and the political good sense of the Americans is their long experience with juries in civil cases.

Civil, Criminal, and Public Law (Lowis, 242)

• Even if they win acquittal in a criminal cases, defendants might still face civil suits. See O.J. Simpson

State and Local Judges

Federal Judges

Appellate Courts

• Guide to Supreme Court decisions
• The Senate and Supreme Court nominations
• SCOTUS demographics
• Tocqueville (p. 270): “There is hardly a political question in the United States which does not sooner or later turn into a judicial one”  
• 
  

Executive Branch: Issues and Problems

For Monday:

• Lowi, ch. 8,
• Tocqueville, pp. 99-105, 262-276
• Federalist # 78.
• Andrew Guthrie Ferguson,"The Joy of Jury Duty," The Atlantic, May 3, 2013, https://www.theatlantic.com/national/archive/2013/05/the-joy-of-jury-duty/275444/?gift=JqLFv2rfr5Q2GTT9QDUdQi_Rf3tIVFo9U8TEWaBD76g&utm_source=copy-link&utm_medium=social&utm_campaign=share/

Atlantic article and The Signal Chat

Robert Gates (Sec Def under Bush 43 and Obama), Duty: Memoirs of a  Secretary at War, p. 82.

The secretary of defense is second only to the president in the military chain of command (neither the vice president nor the chairman of the Joint Chiefs of Staff is in the chain at all), and any order to American forces worldwide goes from the president to the secretary directly to the combatant commanders (although as a practical matter and a courtesy, I routinely asked the chairman to convey such orders). More important than any of the meetings, the secretary makes life-and-death decisions every day—and not just for American military forces. Since 9/11, the president has delegated to the secretary the authority to shoot down any commercial airliner he, the secretary, deems to be a threat to the United States. The secretary can also order missiles fired to shoot down an incoming missile.

What does it mean that information is classified?

FROM DOD:

Review from last time:

Things that federal bureaucracies do (categories overlap).  It's complicated!

• Administer programs that provide cash or subsidies to a category of people (Social Security, Medicare, Medicaid, TANF, veteran benefits).
• Collect revenue
• Protect national and homeland security
• Intelligence community
• Military
• Department of Homeland Security
• Enforce crminal law
• Manage and protect environment & natural resources (e.g., Interior, EPA, NOAA)
• Gather and publish data
• Regulate business (FCC, FTC, Antitrust Division) --

Tocqueville (p. 692) on "The Sort of Despotism Democratic Nations Have to Fear"

It provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principle concerns, directs their industry, makes rules for their testaments, and divides their inheritances. Why should it not entirely relieve them from the trouble of thinking and all the cares of living?…It covers the whole of social life with a network of petty, complicated rules that are both minute and uniform, through which even men of the greatest originality and the most vigorous temperament cannot force their heads above the crowd. It does not break men’s will, but softens, bends, and guides it; it seldom enjoins, but often inhibits, action; it does not destroy anything, but prevents much being born; it is not at all tyrannical, but it hinders, restrains, enervates, stifles, and stultifies so much that in the end each nation is no more than a flock of timid and hardworking animals with the government as its shepherd.

Volume of federal regulations: 10,000 Commandments, p. 26. 

 Cost of regulation and benefits of regulation

Control of bureaucracy and the Principal-Agent Problem (Lowi, 222):  "Deep State," iron triangles, issue networks

• Independent Regulatory Commissions and Humphrey's Executor
• Unitary executive theory and its critics
• Take your pick from Article II
• Vesting clause: "The executive Power shall be vested in a President of the United States of America"
• The Take Care clause; " he shall take Care that the Laws be faithfully executed"

Executive Branch

Third assignment

For next time, Tocqueville, 690-695

From last time:

• Organization of Policy at the White House
• Trump White House

Bureaucracy: the complex structure of offices, tasks, rules, and principles of organization that large-scale institutions use to coordinate the work of their personnel.

A hierarchical organization with a division of labor and specialization.

• Cabinet departments (e.g., the Department of Agriculture)
• Independent agencies: agencies that are not part of a Cabinet department but do not have Cabinet status themselves (e.g., EPA).
• Government corporations: government agencies that operate more like  businesses (e.g., US Postal Service)
• Independent regulatory commissions: rule-making bodies that technically have some insulation from politics (such as the Federal Election Commission)

Bureaucrats are agents of elected officials who have discretion in how they do their jobs.

Who works for the federal government? (only about 4,000 are political appointees).   Note: civilian payroll is only about 5% of federal spending.

After Congress passes law, the bureaucracy drafts rules:

• Federal Register (will come back on Wednesday)
• Code of Federal Regulations.
• Red Tape!

• FAFSA
• Tax forms (tax auditor in the movies)
• Immigration forms

Things that federal bureaucracies do (categories overlap).  It's complicated!

• Administer programs that provide cash or subsidies to a category of people (Social Security, Medicare, Medicaid, TANF, veteran benefits).
• Collect revenue
• Protect national and homeland security
• Intelligence community
• Military
• Department of Homeland Security
• Enforce crminal law
• Manage and protect environment & natural resources (e.g., Interior, EPA, NOAA)
• Regulate business (FCC, FTC, Antitrust Division)

Third Assignment, Spring 2025

Choose one:

1.  Explain how a specific federal policy or program has directly affected you or someone close to you.  Was your experience typical?

2.  Explain how a specific judicial decision has directly affected you or someone close to you. Was this experience typical?

3. With a focus on DOGE, write a brief update to chapter 7.  In what ways would the textbook authors have to revise their analysis of bureaucracy? 

4.  Courts have blocked or delayed many of the current administration's executive actions. Pick one such case.  Explain the arguments on each side with reference to the concepts of "judicial activism" (Lowi 265) and judicial review (Lowi 255).  Which side is likely to prevail in the end?

Instructions:

• Document your claims. Do not write from the top of your head. Cite the specific rules, statutes, or judicial decisions that you are discussing.
• Essays should be double-spaced and no more than three pages long. I will not read past the third page.
• Essays should be in the form of Word documents.  Do not submit pdfs or Google docs.
• Cite your sources with endnotes in Chicago/Turabian style. Endnote pages do not count against the page limit.
• Do not use ChatGPT or any other generative AI. Misrepresenting AI-generated content as your own work is plagiarism.  It will result in a referral to the Academic Standards Committee.  
• Watch your spelling, grammar, diction, and punctuation. Errors will count against you.
• Turn in essays to  Canvas by 11:59 PM,  Monday, April 7:  note the extra time. (If you have trouble with Canvas, simply email your essay to me as an attached Word file.) I reserve the right to dock essays a gradepoint for one day’s lateness, a full letter grade after that.

Presidency II

"Air midterm"

For a week from Monday, read Lowi, ch. 7

What the real Oval Office looks like

Tocqueville 127: "In America the President cannot prevent the making of laws; he cannot escape his obligation to execute them."  IS THAT STATEMENT STILL TRUE?

Executive actions: orders, proclamations, memoranda

Legislative presidency

• Vetoes
• Federalist 73"But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other."

• SAPs

The 25th Amendment

Presidential Succession Act

Congress checking the president: NAIL:

• Nominations
• Appropriations
• Investigations/Impeachment
• Legislation

Organization of Policy at the White House

Trump White House

"Air Midterm"

Relax. This “air midterm” does not count toward your grade; do not even turn it in. Instead, use it to appraise your own progress in the course. Try out this test, either in your head or on paper. If you flounder, then you should take more care with class sessions and assigned readings.

I. Identifications. Explain the meaning and significance of the following items. Each answer should be a brief paragraph. What is fair game for an identification?

• Items that we have discussed in class or on the blog;
• Items that appear in bold or italics in the readings;
• Items that cover several pages in the readings.

1. Natural rights
2. Great Compromise
3. Eminent domain
4. Dual citizenship
5. Social Gospel
6. The Lemon Test
7. Fourteenth Amendment
8. Executive agreements
9. Indian Citizenship Act
10. Divided government
11. Mores
12. Executive orders

II. Short answers. Each should be a brief paragraph.

1.  Briefly explain: “Religion, which never intervenes directly in the government of American society, should therefore be considered as the first of their political institutions, for although it did not give them the taste for liberty, it singularly facilitates their use thereof."

2. Briefly explain: “[O]f those men who have overturned the iberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”

3. Which constitutional amendment was a repsonse to the Antifederalists’ concerns that a strong central government would encroach on the power of the states? How did the amendment address those concerns?

III. General Essays. Each answer should take 3-4 small bluebook pages.

1.  According to Tocqueville, what are the main causes that check majority tyranny and maintain a democratic republic in the United States? Does the system work as he described it?

2. Explain how the Constitution gives power to the president

IV. Bonus questions (one point each) Very briefly identify the following:

• Pam Bondi
• Liz Cheney
• Eleni Kounalakis
• Angela Alsbrooks
• Rosaline Friedman

Presidency I

 For next time

• Tevi Troy, "How the White House Makes Policy," National Affairs, Winter 2025, https://www.nationalaffairs.com/publications/detail/how-the-white-house-makes-policy

On a lighter note... The presidency clip that everybody always remembers long after they have forgotten The Federalist.

Federalist 70 "The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers."

How a president differs from a prime minister:

Federalist 71. "It is one thing to be subordinate to the laws, and another to be dependent on the legislative body.

ARTICLE II  

Delgated powers and tariffs

Expressed  and "inherent" powers

Military

• Use of force overseas
• War Powers Act and AUMFs
• Nuclear War
• Federalist 8: "It is of the nature of war to increase the executive at the expense of the legislative authority."
• Democracy in America: "If executive power is weaker in America than in France, the reason for this lies perhaps more in circumstances than in the laws. It is generally in its relations with foreign powers that the executive power of a nation has the chance to display skill and strength. If the Union’s existence were constantly menaced, and if its great interests were continually interwoven with those of other powerful nations, one would see the prestige of the executive growing, because of what was expected from it and of what it did."

Judicial

• Pardons
• DOJ (Nixon tape transcript, pp. 15-16)

Diplomatic "receive ambassadors"

• Diplomatic recognition

Executive and the "unitary executive" theory

Executive actions: orders, proclamations, memoranda

Legislative

• Vetoes
• Federalist 73"But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other."

• SAPs

The 25th Amendment

Presidential Succession Act

Congress checking the president: NAIL:

• Nominations
• Appropriations
• Investigations/Impeachment
• Legislation

Congress II

 For Monday:

• Lowi, ch. 6 
• Hamilton, Federalist # 70, 71, 73 
• Tocqueville, pp. 121-138.

"Air Midterm"

About last night...

Hill leadership

• House
• Senate

Edmund Burke:

 In all bodies, those who will lead, must also, in a considerable degree, follow. They must conform their propositions to the taste, talent, and disposition, of those whom they wish to conduct: therefore, if an assembly is viciously or feebly composed in a very great part of it, nothing but such a supreme degree of virtue as very rarely appears in the world, and for that reason cannot enter into calculation, will prevent the men of talent disseminated through it from becoming only the expert instruments of absurd projects!

Leadership Activities

• Legislation
• Whips and for real (Scalise is now majority leader)
• Communication:  Johnson v. Thune
• Campaign Activity; Hill Committees 
• Literally "paying your dues"

Bill becomes law  -- an example

C-SPAN

Markup

Bicameralism

Tocqueville (p. 200):  "When one enters the House of Representatives at Washington, one is struck by the vulgar demeanor of that great assembly...A couple of paces away is the entrance to the Senate, whose narrow precincts contain a large proportion of the famous men of America."

Federalist 63: As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

Separation of Powers

Federalist 47: "From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,'' or, "if the power of judging be not separated from the legislative and executive powers,'' he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other."

Federalist 48: The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.

BUT DOES THE SYSTEM WORK WITH POLARIZED AND NATIONALIZED  PARTIES? 

Boehner & Bachmann

There are bipartisan bills:  Franken and service dogs

BESIDES PASSING BILLS, MEMBERS OF CONGRESS:

• SERVE AS CONSTITUENT CONCIERGES
• MAKE APPEARANCES IN THE CONSTITUENCY
• MAKE SPEECHES
• DO MEDIA INTERVIEWS
• ISSUE PRESS RELEASES AND SOCIAL MEDIA POSTS
• HOLD HEARINGS:  FRANKEN REFLECTIONS
• CONDUCT OVERSIGHT 

Congress I

Tonight: submit assignments via Canvas.  If you have trouble, just email them to me as attached Word files.  NO PDFS.

Tomorrow:  watch Trump address to Congress.

Wednesday:

• Hamilton, Federalist # 47, 48, 57, 63.
• Tocqueville, 196-230.
• Boehner and Franken readings on Canvas (email me if you have trouble opening them.)  Don't worry:  they are fun readings.

Research

What is representation?

Substantive:  delegate v. trustee (Lowi 139)

Demographics: race and ethnicity

Federalist 51

• Separation of Powers: "Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place."
• Bicameralism: "In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit."

Hill leadership

• House
• Senate

Leadership Activities

• Legislation
• Whips and for real (Scalise is now majority leader)
• Communication:  Johnson v. Thune
• Campaign Activity; Hill Committees 
• Literally "paying your dues"

Edmund Burke:

 In all bodies, those who will lead, must also, in a considerable degree, follow. They must conform their propositions to the taste, talent, and disposition, of those whom they wish to conduct: therefore, if an assembly is viciously or feebly composed in a very great part of it, nothing but such a supreme degree of virtue as very rarely appears in the world, and for that reason cannot enter into calculation, will prevent the men of talent disseminated through it from becoming only the expert instruments of absurd projects!

Civil Liberties and Civil Rights

 For next Monday:

• Lowi, ch. 5. 

Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

• Privacy and test cases
• Roe and Dobbs

Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

• States have "powers," not "rights."

Seneca Falls

• Frederick Douglass was there
• And he was speaking out for the rights of people from China -- in 1867

Civil War Amendments

• Amendment XIII Section 1. Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction. 
• 2024 CA ballot measure.
• Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 
• Amendment IV, Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
• Amendment XV Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

War and civil rights

• Emancipation Proclamation, 15th Amendment, and Black soldiers
• Women's suffage and World War I
• Indian Citizenship Act and World War I
• World War II 
• FDR and A. Philip Randolph  (a not-very-audible audio) and the FEPC
• Desegregation of the armed forces
• The Cold War and the 1964 Civil Rights Act
• The 26th Amendment and Vietnam

• Selma the movie(at 2:00):  vs. the actual conversation between LBJ and MLK (first few minutes, skip to 6:00)