In the concurring opinion of Justice Jackson, he lays out three "over-simplified" groupings of situations in which a President's may doubt his own power, or be challenged by others. The first situation occurs when the President is acting along with Congress, and here his power is at its maximum. The second is when the President acts when there is no congressional grant or denial of authority specifically stated, therefore he is acting within his own discretion. The third is when the President acts against the implied will of Congress, therefore Jackson states that the President's power is at its "lowest ebb."
By stating these three situations, Jackson seems to understand that the President does not need the consent, or even the approval, of Congress to make decisions or act. However, he does not appear to be to fond of this notion. He says that the Court comes into play when the President is in "a zone of twilight" or when he is acting against the will of Congress. During these times, the court's role is to make sure that the presidents actions are constitutional.
In relation to the Youngstown Sheet and Tube Co. case, Jackson's opinion seems to lean towards the idea the Truman acted wrongly. However, his wrongdoings are specific to this case and Jackson makes it clear that the president should have complete control over his role as Commander in Chief, so much of Jackson's opinion is concurrent with the U.S. Constitution, because he is quite skeptical of giving the President too much power. Thusly, he supports the same sort of checks and balances that are outlined in our Constitution.
Wednesday, April 13, 2011
Monday, April 11, 2011
A Doctrine, or not a Doctrine?
Obama and Clinton had very similar speeches. Clinton's reasons for action were to protect innocent people, to prevent war, for peace, and to give people their freedom, which are pretty much the same as Obama's. Both men are trying to get the U.S. to back foreign intervention by appealing to citizen's emotions and sympathy. They both place an emphasis on haste of action as well. Clinton says that "ending this tragedy is a moral imperative" and Obama says that we cannot "turn a blind eye to these atrocities," both appealing to a moral obligation we should feel for other freedom (which is an appropriate way to make our selfish selves feel guilty). Basically, the overall reason for action in both cases is not because it is necessarily in our interest, or going to benefit us in any way, but rather to assure the same rights and freedoms that we enjoy to those around the world.
Obama's speech was far too specific to be a doctrine. He spoke only of the conflict in Libya and what role we would take there in this particular instance. Obama also put alot of emphasis on the fact that this was an allied attack and that the U.S. would be taking a supporting role by letting NATO and our foreign allies take a more robust stance. By making this address specific enough as to avoid making a doctrine, he is leaving room for interpretation when dealing with other conflicts, such as the ones in Darfur, and the Ivory Coast. The speech was good for setting out our plan in Libya, not in foreign altercations altogether-- or a "recalibration of national military strategy."
I think it is smart for Obama to make his military agenda vague, rather than propose a doctrine. By doing so, he creates the ability to make foreign military action unique. Therefore, it is hard to tell what he would have the U.S. do in other situations, and while this middle-grounded approach may be vexing, its not like we have been the bastions of good foreign military intervention so why not leave things up in the air. Obama put an emphasis on the short number of days it took for us to achieve our goals in Libya (31 to be exact), which perhaps foreshadows his desire to act fast, or faster than we have in the past, when dealing with foreign conflicts. And while there are many other conflicts going on internationally (Ivory Coast, Yemen, Syria) we cannot act on all of these and do an efficient job, so presidential discretion on which are the most threatening/important must be implemented.
As for Clinton's speech, it is kind of doctrine-ish. While it is somewhat specific to the conflict in Kosovo, he also says that if America is going to be prosperous and secure, Europe needs to be prosperous and secure. By stating this, Clinton seems prepared to act upon any conflict that may arise and threaten one of our "key" U.S. allies and eliminate all threats of drawing these key players into a wider conflict. By creating a doctrine, Clinton had us intervene in many more countries than Obama has and had America take a more dominant active role in foreign conflict. While Clinton's speech on the conflict in Kosovo had us take a more active role in all foreign conflict than Obama's on Libya, they both place an emphasis on acting out of compassion and in haste to avoid the mistakes we have made in the past by waiting to intervene.
Obama's speech was far too specific to be a doctrine. He spoke only of the conflict in Libya and what role we would take there in this particular instance. Obama also put alot of emphasis on the fact that this was an allied attack and that the U.S. would be taking a supporting role by letting NATO and our foreign allies take a more robust stance. By making this address specific enough as to avoid making a doctrine, he is leaving room for interpretation when dealing with other conflicts, such as the ones in Darfur, and the Ivory Coast. The speech was good for setting out our plan in Libya, not in foreign altercations altogether-- or a "recalibration of national military strategy."
I think it is smart for Obama to make his military agenda vague, rather than propose a doctrine. By doing so, he creates the ability to make foreign military action unique. Therefore, it is hard to tell what he would have the U.S. do in other situations, and while this middle-grounded approach may be vexing, its not like we have been the bastions of good foreign military intervention so why not leave things up in the air. Obama put an emphasis on the short number of days it took for us to achieve our goals in Libya (31 to be exact), which perhaps foreshadows his desire to act fast, or faster than we have in the past, when dealing with foreign conflicts. And while there are many other conflicts going on internationally (Ivory Coast, Yemen, Syria) we cannot act on all of these and do an efficient job, so presidential discretion on which are the most threatening/important must be implemented.
As for Clinton's speech, it is kind of doctrine-ish. While it is somewhat specific to the conflict in Kosovo, he also says that if America is going to be prosperous and secure, Europe needs to be prosperous and secure. By stating this, Clinton seems prepared to act upon any conflict that may arise and threaten one of our "key" U.S. allies and eliminate all threats of drawing these key players into a wider conflict. By creating a doctrine, Clinton had us intervene in many more countries than Obama has and had America take a more dominant active role in foreign conflict. While Clinton's speech on the conflict in Kosovo had us take a more active role in all foreign conflict than Obama's on Libya, they both place an emphasis on acting out of compassion and in haste to avoid the mistakes we have made in the past by waiting to intervene.
Wednesday, March 9, 2011
The Myth of Judicial Objectivity
The modern federal judicial nomination process is as follows:
When there is an open judicial position, the president nominates someone and typically consults with key senators before announcing his nominee. Once he announces his choice, the nomination is sent to the Senate Judiciary Committee where information, records and qualifications are found and researched. After this, the Judiciary Committee votes on the nomination and may either recommend that he/she be confirmed, rejected or may give no recommendation to the Senate. Then the Senate debates the nomination, with a vote of 3/5 in order to end debate. Then the Senate needs a simple majority to confirm the nominee. So in short, the Senate has the final say.
Due to the fact that a president is given the power to select nominees, the filling of judicial positions has become quite political. It is often not about who is the most qualified and impartial, but about ideologies and partisanship. These appointments are used as political playing cards in order to get ahead in the game. However, I do find the whole process appropriate. I believe it is beneficial to give the Senate the ultimate say in whether a nominee is actually confirmed or not.
Since there isn’t much hope to rid the judicial nomination process of partisan-based decisions, I believe the court needs to be political, but I also believe that some magic balance needs to be made. Perhaps we should have a fairly equal ratio of democrats to republicans. By doing this decisions can be made more rationally and through healthy debate. Nominating people like Elena Kagan is a poor decision because she is moderate. It is hard to decide on which side of issues she will fall, therefore she is in the middle and if we nominate people like that, conformity is bound to take effect. If all decisions are made unanimously, then there will be less chance for dissent, however dissent is often a good thing. For example, when the United States decided to invade the Bay of Pigs many of the president’s advisors had foreseen failure, but no one was willing to stand up in protest therefore they conformed and well we failed…miserably. While that does not have to do with the judicial nomination process, it still illustrates my point that dissent, therefore polarization, in the court is something that needs to be done if the judiciary is going to be political and be somewhat objective-ish. Just because a Supreme Court nominee has no outstanding political record does not mean that they are not political beings because we are all opinionated and political.
Since we are all opinionated, we are political whether we realize it or not. Therefore I do not think it should be the job of the president to try and hide this. I think by suppressing the myth of objectivity kind of undermines the American public. Are we really that naïve? Well I guess maybe, but I would hope not. I think we need to accept the fact that impartiality is most likely not going to happen, so by creating a partisan balance, we may hope to reach a more objective decision, rather than one decided by a single political party.
Wednesday, February 16, 2011
Representation
There has been much debate about presidential power within our country for decades. Not only is the limit of the executive’s power under scrutiny, as seen in the Taft v. Roosevelt debate, but the type of representation that the president should provide is also a complex issue. I want the president to act as a politico, rather than a trustee OR a delegate, because if the president is a politico you are able to get the best of both worlds.
Since a politico acts as both a trustee and a delegate depending on the popular saliency of the issue at hand, he is able to make decisions that the people are pushing for, but is also able to step in and make decisions that he thinks are best for the people. The findings in the Canes-Wrone and Shotts piece provide a good example as to when the president should act as a delegate. Issues that constituents think about routinely such as crime, education and economy should be represented by a delegate who will take into consideration the will of the people, since they are the ones who are the most directly effected. Things like the federal reserve, nuclear energy and foreign policy should probably not be up to the popular will of the people and should be looked after by a trustee who will make more informed, conversant decisions.
However there are some cons to this type of representative. If the executive is acting as a politico, according to its definition he is supposed to act in accordance to the popular salience of an issue. Sometimes a representative’s constituents may push for a popular policy to be passed but is it really always the best decision. Sometimes people are blinded by their own opinions and while appeasing the majority is always a popular thing to do, it may not be what is always best for the country. He should strive to represent all citizens, but that’s not very realistic. He should definitely represent just the electorate, but maybe an aim at all citizens with a stronger focus on those in his political party. While I’m sure there are some people of the opposite political party who voted for the president in power, it is largely due to his political party who elected him.
In the case of the president, I do not think he should be expected to be descriptively representative. Descriptive representation should be present in congress, but isn’t a president supposed to try and represent the will of all constituents? Just because a president is from Tennessee doesn’t mean that he should give special interest to his constituents in Tennessee. Therefore, the president should probably use substantive representation. His constituent’s political needs should always be placed somewhere in the forefront of his mind. While they may not always need the things that are best for them, he should still keep in mind what is important to them and try and act in their best interest.
Sunday, February 6, 2011
Roosevelt vs. Taft
Theodore Roosevelt's "stewardship" theory was based off the idea that the president could do anything that the Constitution did not forbid. He believed the president to be a "steward" of the people and "to do all he could for the people." By exercising this type of power Roosevelt believed he was able to do what was necessary for the country and what it demanded. To watch out for the "common well-being" of the nation, Roosevelt believed this type of informal power had to be utilized.
William Taft's "literalist" theory was based upon the idea that the president could not do anything that the Constitution did not permit. He believed that a president's "jurisdiction must be justified and vindicated by affirmative constitutional" provisions, or else those powers do not exist. Taft argues that by giving the executive informal powers is not only limitless, but also unsafe, creating the potential to invade upon private right.
Both Taft, and Roosevelt, make valid points in their views on presidential power. I think that many people would flip flop between the two theories depending upon the president that held office, but in a general sense, I would tend to side with Roosevelt's argument. Certain circumstances call for certain actions which could not have been fathomed by the Framers, so by limiting executive power to that of which only resides in the Constitution would be an unwise call. Times of emergency, like war or natural disaster, call for hasty actions that may not be constitutional provisions. By giving the president room to move outside of the Constitution provides for a better working democracy. Everything the people demand is not going to be within the limitations of the Constitution.
Going back to Taft's argument, I believe that a president's informal powers must be limited as well. Since there is no clear definition of what the common good is, how can anyone really know if a president's actions are in accordance with this ideal? For example, presidents like Richard Nixon, who obviously overstepped their boundaries and abused executive power, need to have some limitations, but it's hard to draw the line where. If a president's power is too limited people may be unhappy with the government's abilities, but if it is loose it runs the risk of being too powerful. I think overall it is a tough question as to where to draw the line.
Ultimately, as I said before, Roosevelt's argument probably makes the most sense, of course with certain limitations. Just because something falls somewhere in between what is legal and what is illegal doesn't always make it right. There can be deviance without having broken laws.
William Taft's "literalist" theory was based upon the idea that the president could not do anything that the Constitution did not permit. He believed that a president's "jurisdiction must be justified and vindicated by affirmative constitutional" provisions, or else those powers do not exist. Taft argues that by giving the executive informal powers is not only limitless, but also unsafe, creating the potential to invade upon private right.
Both Taft, and Roosevelt, make valid points in their views on presidential power. I think that many people would flip flop between the two theories depending upon the president that held office, but in a general sense, I would tend to side with Roosevelt's argument. Certain circumstances call for certain actions which could not have been fathomed by the Framers, so by limiting executive power to that of which only resides in the Constitution would be an unwise call. Times of emergency, like war or natural disaster, call for hasty actions that may not be constitutional provisions. By giving the president room to move outside of the Constitution provides for a better working democracy. Everything the people demand is not going to be within the limitations of the Constitution.
Going back to Taft's argument, I believe that a president's informal powers must be limited as well. Since there is no clear definition of what the common good is, how can anyone really know if a president's actions are in accordance with this ideal? For example, presidents like Richard Nixon, who obviously overstepped their boundaries and abused executive power, need to have some limitations, but it's hard to draw the line where. If a president's power is too limited people may be unhappy with the government's abilities, but if it is loose it runs the risk of being too powerful. I think overall it is a tough question as to where to draw the line.
Ultimately, as I said before, Roosevelt's argument probably makes the most sense, of course with certain limitations. Just because something falls somewhere in between what is legal and what is illegal doesn't always make it right. There can be deviance without having broken laws.
Wednesday, January 26, 2011
State of the Union Address
In President Obama's State of the Union address given last night he hit many important points and set some pretty ambitious goals. The state of the union address is not only to set the agenda for congress, but to inform and please the public about the goals he hopes to achieve. By going public with his agenda, Obama has the potential to get the approval of both congress and the American public.
I think the overall tone of his speech was about boosting the economy, but how could it not be after the recession that we have been through? He began by addressing innovation, infrastructure and education. He made the message clear that we need to be supporting new research and innovations equating this goal to a modern space race. We must invest in things like biomedical research and clean energy technology. By doing such things, Obama points out that we will not only be strengthening security, but creating countless new jobs. Along the same lines he makes the point that this all starts by restoring educational values, we can only achieve such innovations and new technologies if people are hard at work learning and creating ways to do such things, and not just those who are already educated, but people of all ages must work towards these achievements. He says that by eliminating the taxpayer's money that goes to oil companies and redirecting it towards research in fuel and electricity, hopefully we will have cleaner air and a million electric cars on the road in the future. Then Obama turns the focus to the problems in our businesses. He says that by doing things like keeping business within our borders and by creating a small business tax credit, more jobs will be restored to hard working Americans. Obama also hopes to freeze government spending for the next three years. The last main point Obama makes is to end "don't ask, don't tell" and allow those who are gay/lesbian to serve their country.
Many of the things proposed by Obama in his agenda would be achieved through informal power. He does assert his formal power when he threatens congress that he will veto and hopefully end all earmark legislation. Other than his veto power, the other aforementioned goals would either be achieved through informal powers and through congress. Not only does he exercise informal powers through his address, but his overall role of "agenda setter" is an informal power.
While Obama's speech was one of optimism and hope, we all know that the agenda may never actually be put into action. Many of his goals will go unattended and those that do begin in congress will most likely die there as well. Since many of the goals set my the president last night are vital to our economy and out overall success as a nation, I will try to remain as Obama was last night...hopeful.
I think the overall tone of his speech was about boosting the economy, but how could it not be after the recession that we have been through? He began by addressing innovation, infrastructure and education. He made the message clear that we need to be supporting new research and innovations equating this goal to a modern space race. We must invest in things like biomedical research and clean energy technology. By doing such things, Obama points out that we will not only be strengthening security, but creating countless new jobs. Along the same lines he makes the point that this all starts by restoring educational values, we can only achieve such innovations and new technologies if people are hard at work learning and creating ways to do such things, and not just those who are already educated, but people of all ages must work towards these achievements. He says that by eliminating the taxpayer's money that goes to oil companies and redirecting it towards research in fuel and electricity, hopefully we will have cleaner air and a million electric cars on the road in the future. Then Obama turns the focus to the problems in our businesses. He says that by doing things like keeping business within our borders and by creating a small business tax credit, more jobs will be restored to hard working Americans. Obama also hopes to freeze government spending for the next three years. The last main point Obama makes is to end "don't ask, don't tell" and allow those who are gay/lesbian to serve their country.
Many of the things proposed by Obama in his agenda would be achieved through informal power. He does assert his formal power when he threatens congress that he will veto and hopefully end all earmark legislation. Other than his veto power, the other aforementioned goals would either be achieved through informal powers and through congress. Not only does he exercise informal powers through his address, but his overall role of "agenda setter" is an informal power.
While Obama's speech was one of optimism and hope, we all know that the agenda may never actually be put into action. Many of his goals will go unattended and those that do begin in congress will most likely die there as well. Since many of the goals set my the president last night are vital to our economy and out overall success as a nation, I will try to remain as Obama was last night...hopeful.
Wednesday, January 19, 2011
Changing the Constitution
I believe the Constitution is something many Americans are familiar with, yet have little idea of what it actually means. I have read it many times and done many assignments about it, but yet I'm still a little confused by some of it's language myself.
If I was given the power to change Article II, I would begin in Section 1. In this section it is stated that, "No person except a natural born citizen," may obtain the position of President. This seems absurd, especially in today's society. I can see why the Framers would have made this distinction when they were creating the Constitution due to the fear of British rule/influence, but today it seems that any citizen should be able to become president. If they have gone through the process of becoming a citizen, it shouldn't matter if they are born here, a citizen is a citizen. Personally, I would want the person that it the most well qualified governing the country and such things are not dependent on where some one is born. I do agree that there should be a requirement for age and years of residency, but leadership is not only found in America. I'm 100% sure that there are far more qualified people out there, who are not American, that could run this country better than many of our past presidents.
But is there really any hope that the Constitution will be changed any time soon, if ever? I do hope so, although I'm not too optimistic. Other than changing the citizenship requirement i do not have too many other problems with Article II. I do think there could be more specification of the crimes eligible for impeachment. It states that a president can be impeached for "other high crimes," however I'm not quite sure what these "high" crimes are. I guess I'll go ponder that now...
If I was given the power to change Article II, I would begin in Section 1. In this section it is stated that, "No person except a natural born citizen," may obtain the position of President. This seems absurd, especially in today's society. I can see why the Framers would have made this distinction when they were creating the Constitution due to the fear of British rule/influence, but today it seems that any citizen should be able to become president. If they have gone through the process of becoming a citizen, it shouldn't matter if they are born here, a citizen is a citizen. Personally, I would want the person that it the most well qualified governing the country and such things are not dependent on where some one is born. I do agree that there should be a requirement for age and years of residency, but leadership is not only found in America. I'm 100% sure that there are far more qualified people out there, who are not American, that could run this country better than many of our past presidents.
But is there really any hope that the Constitution will be changed any time soon, if ever? I do hope so, although I'm not too optimistic. Other than changing the citizenship requirement i do not have too many other problems with Article II. I do think there could be more specification of the crimes eligible for impeachment. It states that a president can be impeached for "other high crimes," however I'm not quite sure what these "high" crimes are. I guess I'll go ponder that now...
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