29 May 2009

Are Justices Too Powerful?

Back in February the Washington Post printed a provocative article, which began:
If we had it to do all over again, would we appoint Supreme Court justices for life? Allow the chief justice to keep the job forever? Let the court have the final word on which cases it hears and those it declines?
If you are interested in the answers that more than a few law professors in the United States give to these question, I encourage you to read the rest of the article.

26 May 2009

Immunity from Criminal Prosecution

Students in my constitutional law courses know (or will know) that the President probably enjoys absolute immunity from criminal prosecution while he is in office. Most legal scholars maintain that the President must first be impeached before he can face criminal charges. But as this post over at the always informative Jurist website notes, judges do not enjoy the same kind of immunity from prosecution. U.S. Federal District Court Judge Samuel Kent recently was convicted of obstruction of justice related to a sexual harassment complaint filed against him. He is now serving 33 months in prison. However, Kent is still a federal court judge. Remember, the only means for removing judges in the federal system is via the impeachment process. This process, as one would expect, has already been started for his removal.

24 May 2009

Why Marbury Still Matters

Students of American Constitutional Law learn that Article III, the part of the Constitution that created the Supreme Court, did not actually give the Court the power to review the constitutionality of actions taken by the other two branches of government. This power was derived from the court decision, arguably the most important decision in American history, Marbury v. Madison. Newsweek recently had an interesting story explaining why Marbury is still relevant some 200 years later.

21 May 2009

More of the Same, Part 2

A few days ago I wrote about how the Obama Administration is defending of surveillance practices it inherited from the Bush Administration. But it's not just spying that apparently will remain the same. The much maligned practice of extra-ordinary rendition (the prisoner transfer program the involves kidnapping suspect terrorists and moving them to countries that have a . . . well . . . different view of torture than most western countries) apparently will also remain the government's anti-terrorism arsenal. The Los Angeles Times has more.

1 in 7 return to "terrorism"

The New York Times had a fascinating article in yesterday's paper about an internal U.S. Department of Defense report that claims 1 in 7 of the former Guantanamo detainees returns to "battlefield" against the United States. The article also talks about the dilemma facing the Obama Administration over what to do with the rest of the detainees still at Guantanamo. Some, according to experts, cannot be released and will have to face trial. But now members of Congress are balking at the idea of bringing some detainees back to the U.S. mainland for trial. In the article, F.B.I. director, Robert S. Mueller III, said that moving detainees to American prisons would bring with it risks including “the potential for individuals undertaking attacks in the United States.”

This quote left me wondering. How can moving people into American prisons increase the potential for individuals to undertake attacks in the U.S.? Does he mean the individuals who would be put in prison might engage in attacks? Or does he mean that now terrorists will have even more incentive (hard believe that is possible unless one thinks that people like Bin Laden have gone soft on the U.S.) to attack the U.S.?

17 May 2009


During a recent Constitutional Law lecture in Münster, a student asked who was counted for purposes of determining a state's population with regards to apportionment of the House of Representatives. As students in most of my classes have learned (or been reminded of) at some point or another, the number of representatives each state has in the House of Representatives is determined by the population of a given state. Most students are surprised to learn that every ten years a recount of the entire U.S. population is conducted via something called a census (this recount, incidentally is required by the Constitution). But I digress.

So who counts when determining a state's population? Everyone. That's right, citizens and non-citizens, legal residents and illegal residents, registered voters and non-registered voters, adults and children. Everyone. More information is provided here by our friendly Census Bureau (the fine folks who conduct this decennial recount).

As an aside, as part of my search for this answer, I came across information concerning a movement here in Germany back in the late 1970s to introduce a census. Apparently a planned census in 1983 was halted by the Bundesverfassungsgericht. More can be found here.

16 May 2009

The End of Affirmative Action?

The election of Barack Obama as President has some people wondering the whether programs that give preferences to racial minorities to correct for past discrimination are still necessary. National Public Radio recently hosted a half-hour discussion on the topic of Affirmative Action in the aftermath of the historic 2008 Presidential Election.

14 May 2009

How Big Must A Jury Be?

Popular culture has ingrained the belief in us that all juries have 12 people serving on it (the classic film "Twelve Angry Men" being the prime example of this). But the United States Supreme Court has repeatedly made it clear that having 12 people on a jury is not required by the U.S. Constitution. Two American law professors explain why it should be required.

Obama Nominee Blocked by Senate Republicans

Today's Washington Post contains an article about how members of the Republican Party in the U.S. Senate were able to block President Obama's nominee for Deputy Secretary of the Interior. The article provides a nice illustration of a few things that I have already addressed in many of my courses. First, that the President has the power to appoint officers of the Executive Branch. Second, that this power is not absolute because the U.S. Senate must confirm the President's choice. Third, that because of special rules that exist in the U.S. Senate, rules that are not found in the Constitution itself, a minority of Senators can block action in the Senate using something called a filibuster. As students may recall, the filibuster is basically non-stop debate. The Senate cannot vote on the matter at hand until the debate is finished, and under the rules of the Senate a filibuster can only be stopped if at least 60 Senators vote to stop it. The Democrats in the Senate were only able to muster 57 votes in favor of ending debate and thus the fillibuster worked in stopping the full Senate from voting on the confirmation. Take a look at the Post article for more.

12 May 2009

The More Things Change . . .

the more they stay the same, so the old saying goes. But is that true when it comes to spying on Americans? Put another way, did the election of Barack Obama as President change the surveillance tactics of the U.S. government? Not really, according to Wired's David Kravets.

11 May 2009

Banning the Flag

Can a public high school prohibit students from wearing T-shirts bearing the Confederate Flag? According to the Sixth Circuit Court of Appeals, the answer is yes. The court's decision, which is relatively easy reading, can be found here.

Court Says Florida Cannot Make Foreign Policy

Understanding who has what power in the United States can sometimes be confusing. Determining which branch of the federal government has what power is the easy part (O.K., not really). But more complicated are questions like: When does Congress have the power to regulate activity and when does that power belong to the states? But there is one area that the courts have been pretty consistent on when it comes to the question of who has the power: foreign policy. A recent case out of Florida provides a very nice example.