November 1, 2008
The Teaching Assistant
Hello Fellow Professors! This week there is a lot to report. In fact, there is so much to report that it must be categorized by topic. This week's Teaching Assistant topics will be organized by the order in which they appear in the Constitution-
Article II - Executive Branch
There is much activity in the executive branch, as we would expect at this time in the presidential election cycle. There are three stories regarding the current denizens of our executive branch. First, Salim Hamdan has been in the news lately, as prosecutors attempted to seek a new sentence for Hamdan, arguing that the sentencing judge did not have the authority to give Hamdam credit for time served in pre-trial confinement. However, according the Wall Street Journal's Law Blog, a military judge denied this request. Consequently, Hamdan could be released as soon as December - but the operative word here is "could." The WSJ further notes that if Hamdan is declared an "enemy combatant," he could continue to be held at least until the end of the hostilities in Afghanistan. This would be an interesting addition to your discussion of this case in your course.
Second, from the "in case you missed it" files, last week President Bush sent U.S. special forces troops into Syria. While the details remain unclear, apparently the troops were sent into the area in search of an individual assisting the opposition in Iraq. Eight people were killed. The Constitutional implications are many. First, was the War Powers Resolution violated? If the number of troops was small, arguably, it was not, but if this is so, then this is an inherent flaw in the WPR. Second, our president launched an attack against a sovereign nation against a nation that has usually been our ally in the region. Sandy Levinson of Balkinization has a great assessment of the consequences of the action here.
Third, as my co-bloggers and I have reported, there is a tendancy for administive activity to increase in the waning days of an outgoing president's administration. Well, there is more - apparently, there is a practice of political appointees changing their status from political appointees to career employees. This practice - known as "burrowing in" is described in detail in this Mother Jones piece. Students might be interested to learn about the practice and how it effective circumvents some of the appointment powers of the incoming president.
Now on to the stories regarding those who hope to occupy the executive branch. First, Governor Sarah Palin's interpretation of executive authority is making news again. Recently, she reiterated her claim that the Vice Presidency is an office that has expansive powers. Over at Findlaw, Vikram Amar analyzes the issue, and though he concludes that the issue is more complex than one initially might think, Governor Palin is likely incorrect. Over at the Volokh Conspiracy, Johnathan Adler links to Glen "Instapundit" Reynolds' piece in the New York Times which takes an opposite view. Nevertheless, both pieces agree that a person who holds a position of power in the executive branch cannot simulateously serve as a powerful individual in the legislature.
Second, as is de rigeur each leap year in November, there are proposals for modifying our "beloved" electoral college system of voting for electors, rather than allowing the popular vote to decide. The American Constitutional Society has a great piece wherein James Rooney discusses a proposed compromise - states should direct their electors to vote for the candidate that recieves a majority of the popular vote. The proposal is more detailed and complicated than this, but it is interesting reading and your students will no doubt be interested in this topic in the next week.
Not to be outdone, the judiciary is also creating news. Yesterday, the D.C. Circuit ruled in the case of C-SPAN, et al. v. Federal Communications Commission. In sum, C-SPAN seeks to challenge regulations that will require cable companies to carry both analog and digital versions of broadcast channels beginning in February 2009. The court concluded that the petitioners lacked standing. The court found problems with the petitioners' assertions of injury, causation, and redressibility.
Fourteenth Amendment/Individual Rights
Finally, there are two stories about individual rights. First, on the equal protection front, the WSJ reports that South Carolina's Supreme Court held that an attorney's assertion that he struck a juror in a civil case because the prospective juror's dreadlocked hairstyle made counsel "uneas[y]" was insufficient to pass the Batson test. Most critical for Con Law purposes, the court rejected the notion that dreadlocks were race neutral because worn by people of various races and religions. Rather, the Court stated:
Regardless of their gradual infiltration into mainstream American society, dreadlocks retain their roots as a religious and social symbol of historically black cultures. For this reason, we hold that counsel’s explanation that the juror’s dreadlocks caused him “uneasiness” was insufficient to satisfy the race-neutral requirement in the second step of the trial court’s Batson analysis.
There was also a strongly worded dissent. The full opinion can be found here.
Second, in a case that may have some bearing on fundamental rights analysis, Eugene Volokh reports that a Pennsylvania appellate court recently held that in custody disputes, the court will not make any presumptions that would promote public school education over home schooling. Rather, the court will continue to use the best interest of the child standard. This case is interesting, as the choice of schooling falls within the fundamental right to raise one's children as one sees fit, but here, it also conflicts with the right of custodial parents (and non-custodial parents) to inculcate a child with certain values.
That's all for this week. (And honestly, isn't it enough?) See you next week!
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