American Government and the Constitution Lecture Four
The U.S. Constitution authorizes state legislatures and Congress to pass laws for the election of representatives to the House of Representatives and the Senate, and for picking members of the Electoral College (also called "presidential electors"). As you should expect by now, it is Article I that contains the provision for electing candidates to Congress (the House and Senate), and it is Article II that contains the provision for electing the members of the Electoral College to choose the next president.
Article I, Section 4, clause 1 states:
|“||The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations ....||”|
Article II, Section 1, clause 4 states:
|“||The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.||”|
The above sections of Articles I and II grant authority primarily to the States, but also to Congress, for determining rules for electing the members of the House, Senate, and Electoral College. The States determine who will be allowed to vote and the times on Election Day when the polling booths will be open for voting. Congress retains some power, such as establishing when Election Day is for electing politicians to the House, Senate, and Electoral College.
The following provisions in federal law establish that the elections of the representatives in the House and Senate, and the presidential electors, shall occur on the Tuesday after the first Monday in November, which is known as "Election Day":
2 U.S.C. § 7 establishes that:
|“||The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.||”|
2 U.S.C. § 1 provides that:
|“||At the regular election held in any State next preceding the expiration of the term for which any Senator was elected to represent such State in Congress, at which election a Representative to Congress is regularly by law to be chosen, a United States Senator from said State shall be elected by the people thereof for the term commencing on the 3d day of January next thereafter.||”|
3 U.S.C. § 1 provides that:
|“||The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.||”|
49 out of the 50 States in the United States use the "common law" tradition based on English law. Under the common law, courts create and refine legal rules by deciding thousands of cases. What is "trespass"? Under the common law, "trespass" is defined by court decisions over the years. For example, someone's liability for chopping down a tree that he thought was on his own property, but actually was on his neighbor's property, is established by many court decisions under a common law system rather than by highly specific laws passed by the legislature.
One State, Louisiana, uses a completely different system: a civil law system based on French law. Under the civil law system, the legislature passes thousands of laws and virtually everything in court is decided based on what the laws say, rather than what prior decisions held. A judge is supposed to interpret and apply directly the applicable laws passed by the legislature, rather than worry about what prior courts held.
Louisiana did not become a State until 1812, and four years earlier it had adopted the Napoleonic Code from France. Louisiana was also influenced by Spanish law, which is likewise a civil law system.
Many things in Louisiana are different from everywhere else in the United States. The counties in Louisiana are called "parishes", for example. Louisiana has been governed by a total of 10 different flags in its colorful history. When the Civil War began, Louisiana was even an independent nation for 6 weeks prior to becoming part of the Confederacy.
Elections in Louisiana were different from other States. Beginning in the 1970s, Louisiana began holding an "open primary" in October of election years, with everyone (including all the Republican and Democrat candidates, and candidates in the other smaller political parties) on the same primary ballot. All voters, regardless of their party registration, were entitled to vote on that day for whomever the like. In the other States, the primary day is for voters who belong to each party (e.g., Republican or Democrat) to vote only for a candidate in their own party. But in Louisiana, everyone voted in the primary using the same overall ballot, and they voted for anyone they wanted. A Republican voter could vote for a Democrat, and vice-versa. That is different from most States, where the voters in a primary election only vote for candidates in their own political party, in order to nominate them for the general election.
If no candidate for a particular office, such as a House or Senate seat, received a majority of the votes in the Louisiana primary elections in October, then there would be another election between the two top vote-getters (called a "run-off"). This subsequent election would be on Election Day, the Tuesday after the first Monday in November, when the rest of the Nation votes.
But if a candidate did win a majority on the Louisiana primary election day in October, then he was declared the winner and there would not be a run-off on Election Day.
One problem: the law passed by Congress requires that elections for the House, Senate, and President be on the Tuesday after the first Monday in November. After nearly two decades of Louisiana's unusual system, the Supreme Court ended it by declaring it to be in violation of federal law concerning the timing of elections, in Foster v. Love (1997), because Louisiana was electing many congressmen in October rather than on Election Day.
Originally, people could vote only at polling booths on Election Day, and voting by mail or on other days shortly prior to Election Day were not allowed. Indeed, Election Day was a national, unifying moment, and even a government holiday in some states (including New Jersey). President Abraham Lincoln and his allies in Congress were the first to allow widespread "absentee voting" for servicemen during the Civil War, because President Lincoln was terrified he might lose reelection in 1864 unless the Union soldiers could vote against his pro-peace opponent, the fired Union General George McClellan (who later became a governor of New Jersey). Lincoln won reelection based on the overwhelming support of Union soldiers, with an estimated 78% of their votes being in support of Lincoln's reelection. But absentee voting was limited to people who could not show up at their polling booth on Election Day, due to commitments like serving in the military or being outside of the country.
Only in the last 15 years has "early voting" become legal and popular in many areas of the Nation. In some States, most of the voting is now done by voters at their convenience prior to Election Day (i.e., prior to the Tuesday after the first Monday in November). In Ohio in 2012, there was 35 days of early voting during which nearly 1.8 million votes were cast (31.0% of the votes cast in the 2008 election). By the time of Election Day, the outcome in Ohio may have been already a foregone conclusion, and known to anyone who analyzed the voting patterns of who voted early. Then the votes on Election Day probably did not change the outcome. Is this what the Framers had in mind, an election won before Election Day?
Since states have begun to allow more expansive early voting, Democrats have used a variety of approaches to push voters to the polls with instructions of how they "should" vote. This has included busing casino workers directly from their jobs, during the day, to polling booths under the supervision of union bosses. In so-called "Souls to the Polls" campaigns, Democrats encourage predominantly African-American churchgoers, who primarily vote Democratic, to be driven directly from church on Sunday to polling booths.
Ohio shortened its early voting from 35 days to 28 days for the November 2014 election, including only two Saturdays and one Sunday. Democrats, feeling that a shorting of early voting was disadvantageous to their side, sued to preserve the 35 days of early voting. A federal district judge reinstated 35 days of early voting, and an appellate panel of 3 Democrat-appointed judges affirmed in a decision rendered just prior to the beginning of the period. The panel upheld the district court's decision that, under the particular circumstances of Ohio, the reduction of early voting periods that African-Americans had come to rely upon violated Section 2 of the Voting Rights Act, even though 28 days of early voting are far longer than most other states, and the system of little or no early voting in other states is perfectly legal.
Then Ohio did an emergency application to the U.S. Supreme Court, which is rarely granted. But in a remarkable 5-4 decision by the U.S. Supreme Court on Monday, September 29, 2014, it blocked the lower federal court decisions from taking effect, and the Supreme Court allowed Ohio to shorten its early voting period from 35 to 28 days for the November 2014 election.
In North Carolina, a federal court rejected a request by challengers to block for the November 2014 election portions of a law passed in 2013 that, among other things, limited the number of days of early voting (while guaranteeing the same number of hours of early voting as there were in 2010). The Court of Appeals held that, even if the challengers could show they were likely to succeed on their challenges, it was too late to reinstate expanded early voting for the November 2014 election.
While an average person might support the concept of early voting for the convenience of the voter, not everything that "sounds good" is really good after all. The more early voting there is, the less significant Election Day itself is. Some studies show that early voting actually reduces overall "turnout" by voters (the percentage of people who are eligible to vote who then actually do vote). The reduction in voter turnout is probably due to the loss in focus on Election Day. Fewer people would be interested in the Super Bowl also if it occurred over many days, rather than one evening.
It may be convenient to voters to allow early voting, but greater convenience is not the goal of fair elections. It would be more convenient in jury trials to allow jurors to cast their vote and leave before the trial is over, but that would lead to unjust results. Aren't elections just as important as jury trials? Yes, and it does not make sense to allow most people to vote before the campaigns are concluded. In some cases (like Ohio), people were voting before the candidates even finished holding all of their televised debates!
The structure of the Constitution, in establishing three co-equal branches of government, implies a right by one branch of government to stand up against and refuse some demands made by another branch of government. Otherwise one branch of government would be subservient to another.
President George Washington himself, in his first term as president, established the power of "executive privilege" for the Executive Branch by initially refusing to comply with a demand made by Congress for him to provide controversial documents to it. This power of "executive privilege" is not expressly located anywhere in the Constitution, but it is implied by the fact that the Executive Branch is not subservient to the legislative or judicial branches of government.
The House of Representatives was investigating an embarrassing defeat of the U.S. Army by Native Americans in the Battle of the Wabash in 1791, which occurred in territory that is now part of the State of Ohio. President George Washington and his advisers refused to give documents which were requested by the House, because of the separation of powers inherent in the Constitution. Eventually President Washington did provide the documents, however.
In recent decades, every president since Richard Nixon has used the executive privilege to withhold certain information from another branch of government. Indeed, the privilege has been invoked 25 times since 1980.
But the executive privilege is not an absolute power. Its strength is the greatest when the privilege is used to keep secret information about foreign affairs within the scope of the president's duties as Commander-in-Chief. President George Washington's initial use of the privilege (before he turned over the documents to the House of Representatives) had to do with "foreign" relations: military issues between the United States and hostile American Indians.
When the documents do not relate to foreign affairs, courts have ordered a president to produce them to the courts. See, e.g., United States v. Nixon (1974), in which a unanimous U.S. Supreme Court rejected a claim by President Nixon to executive privilege. The Court ordered the President to stop withholding documents that the President wanted to keep secret. The documents related to a criminal case that ultimately caused President Nixon to resign, rather than be impeached by Congress.
A rarely used example of "checks and balances" by one (or two) branches of government against the third is the power of impeachment. Congress may impeach and remove from office high-ranking officials in the Executive Branch and the Judiciary.
Article II, Section 4 of the Constitution states that:
|“||The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.||”|
The concept of "impeachment" is based, like much of American law, on an English tradition dating back hundreds of years before the Constitution. In the 1300s the Parliament in England had the power of impeachment against misbehaving ministers of the King. "Impeachment" is the removal from public office of someone who has engaged in misconduct. Alexander Hamilton explained in Federalist No. 65 that impeachment is the remedy for the "misconduct of public men, or in other words from the abuse or violation of some public trust.”
The Constitution gives the power of impeachment to the House of Representatives, and power to the Senate to act on that impeachment by removing a public official from his position. Contrary to what most people think, "impeachment" itself does not remove the person from public office. Impeachment is like "indicting" someone, or filing charges against him. The Senate must then decide whether to remove him from his public position.
Only a majority vote in the House is required to impeach a public official. A two-thirds vote in the Senate is required in order to actually remove him from office.
Throughout American history, there have been only two impeachments of American presidents, and only one impeachment of a Supreme Court Justice. In all three cases, there was not a two-thirds vote in the Senate to remove the person from office, so he remained in power. The impeached officials were Presidents Andrew Johnson (1868) and Bill Clinton (1998), and Supreme Court Justice Samuel Chase (who earlier was one of the signers of the Declaration of Independence).
But the likelihood of impeachment did cause President Richard Nixon to resign first. And the impeachment of Presidents Johnson and Clinton did weaken their credibility and make it difficult for them to continue to exercise power.
Other officials have been impeached and removed from office by Congress. There have been a total of 20 impeachments by the House, 15 of whom were federal judges. Eight of the impeached federal judges were then removed from office by a vote of at least two-thirds of the Senate. A Senator himself was once impeached by the House in 1797, and then expelled by the Senate. Ironically, that impeached Senator (William Blount) was an original signer of the Constitution!
Notice that the president has no role in the impeachment power. This is another example of authority given only to the legislative branch. The Chief Justice of the United States, however, does preside over the removal proceeding in the Senate once an impeachment is ordered by the House, if the officer impeached is the President. In all other cases, the Vice-President (as President of the Senate) presides over the trial.
What is the source of the phrase "high Crimes and Misdemeanors"? George Mason, a delegate from Virginia to the Constitutional Convention, suggested it. In English law it means crimes against government that were committed by public officials.
Many States have used impeachment proceedings under their own State constitutions in order to remove high-ranking government officials. In 2009, the Illinois House of Representatives impeached, and the Illinois Senate unanimously removed from office, the Governor of Illinois Rod Blagojevich on corruption charges.
Perhaps the most fundamental of all rights under English law, dating back many hundreds of years prior to the U.S. Constitution, is the right to "a writ of habeas corpus." Known as the "Great Writ," the writ of habeas corpus is a court order requiring government to justify why it is imprisoning someone. A "writ" is an "order" by a court commanding someone, particularly a government official, to do something. The writ of habeas corpus commands a government official to bring the imprisoned person into court and explain why the person is being imprisoned.
The Framers were so protective of the Great Writ that they put in the Constitution itself, as Article I, Section 9, clause 2:
|“||The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.||”|
Notice that this right is in the original Constitution prior to the addition of the Bill of Rights (the first ten Amendments). The Great Writ was considered by the Framers to be a more basic right than freedom of speech or the press.
"Habeas corpus" is Latin for “you should have the body,” and it refers to the right of a prisoner, or someone acting on his behalf, to seek an order by a court to bring the person (the "body") from jail to the court in order to determine if he is being imprisoned properly. In other words, this right protects against unjustified imprisonment. This right enables prisoners to demand to be brought before a judge, in order for the judge to command their release from jail. It is this right that allows a prisoner to argue before an impartial tribunal for his release from jail. Without this right, government could imprison anyone they want, at any time, without any review of the imprisonment by an impartial decisionmaker.
Habeas corpus is the oldest and probably the greatest of all rights under English law, protecting against illegal imprisonment since about 1300. The effect of this habeas corpus right is that government cannot imprison anyone without a valid reason. Government must either present its charges for jailing someone, or set him free. This right of habeas corpus prevents government from imprisoning someone without bringing charges against him.
Opponents of the Constitution were furious that the document gives Congress even a limited power, such as during foreign invasions, to suspend the habeas corpus privilege. Alexander Hamilton, a supporter of the Constitution, agreed that the writ of habeas corpus was essential to safeguard against "the favorite and most formidable instruments of tyranny" - imprisoning people without justification. William Blackstone, the great English law scholar, described the writ of habeas corpus as "the glory of the English law." The exception provided by the Constitution for suspending the right of habeas corpus was supposed to be rarely used.
Thomas Jefferson, in his first inaugural address (March 4, 1801), said the United States was “the world’s best hope” partly because:
|“||freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation.||”|
As the U.S. Supreme Court has emphasized, "The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”
One of the first laws passed by Congress, the Judiciary Act of 1789, granted the power to federal courts to free prisoners from federal jails based on habeas corpus. Later Congress extended federal court power to free state prisoners also. But Congress reduced the rights of prisoners to habeas corpus in 1996, by passing the Antiterrorism and Effective Death Penalty Act (AEDPA) to limit applications by prisoners for habeas corpus relief to their first year of imprisonment following a final ruling against them in their criminal case. This law also required federal courts to defer more to state court decisions, thereby decreasing the number of times those decisions are overturned and a prisoner is released.
A decade later, Congress passed the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 to terminate any habeas corpus rights for enemy combatants who were being imprisoned, including those jailed at Guantanamo Bay, Cuba, due to the Iraq and Afghanistan Wars. But the U.S. Supreme Court partially overturned these laws by ruling that those enemy combatants held at Guantanamo Bay must have some habeas corpus rights by virtue of American sovereignty over the territory.
President Abraham Lincoln suspended habeas corpus for several years in order to win the Civil War, and his lengthy suspension of such a basic right has been criticized to this day.
Abraham Lincoln's Suspension of Habeas Corpus
The Constitution does not grant any power to a president to suspend habeas corpus, and Abraham Lincoln surely knew that. But he suspended it anyway, first along military transportation routes in Maryland, and later throughout Union for many years during the Civil War. Chief Justice Roger Taney, who sympathized with the South, held in 1861 while presiding on a Circuit Court (not in his role as the Supreme Court Chief Justice) that only Congress, and not the President, could suspend habeas corpus. President Lincoln simply ignored the decision, and Chief Justice Taney admitted that he had no way of enforcing his view. Congress passed the Habeas Corpus Act in 1863 to permit the president to imprison people without complying with habeas corpus rights of prisoners. But the law did require federal courts to order the release of any prisoners who had not been formally charged with crimes, and who were simply being jailed without any stated reason.
In one famous case, a Southern newspaper editor was imprisoned for repeatedly criticizing military officials during Reconstruction in Mississippi. Congress, then controlled by northerners who were angry at the South and who feared a decision in favor of a southerner in this case, passed a law in 1867 to take away from federal courts their authority to hear these cases. But the Supreme Court reasserted its power anyway, by holding that it retained authority to hear these habeas corpus cases on appeal under the Judiciary Act of 1789.
Massive illegal immigration from China in the late 1800s caused another habeas corpus controversy, with one federal judge in northern California hearing more than 7,000 cases requesting writs of habeas corpus for imprisoned Chinese immigrants. Thousands of these writs of habeas corpus petitions were granted to the prisoners, but ultimately the Supreme Court took away from the lower federal courts much of their power to grant habeas corpus relief to illegal immigrants. Then federal district courts were required mostly to abide by decisions made by immigration authorities to deport someone, which at that time typically meant sending the detained person back to China.
The "Fourth Branch" of Government
Recall that the three branches of government are legislative (Article I), executive (Article II) and judicial (Article III). This remained true from the ratification of the U.S. Constitution until the 1900s. Then, particularly during the Great Depression and the New Deal, a so-called "Fourth Branch" of the federal government arose, leading to the "administrative state" that we have today. This "Fourth Branch" is an offshoot of the Executive Branch.
In 1790, there were only about 1,000 employees of the federal (national) government (other than the military). Now there are nearly 3 million federal government employees working in 69 agencies and 383 sub-agencies, not including the military. There are 15 different federal departments. This is the "administrative state." They are loosely under the control of the president, but in practice the president has very little authority over them. He cannot even fire most of them.
These federal agencies decide ten times as many cases as the federal courts decide.
The Constitution says nothing about a "Fourth Branch" of government, and some have argued that the administrative state is unconstitutional. But the Supreme Court has upheld the constitutionality of agencies, and in 1984 ruled that courts should even defer to agency decisions, in the decision of Chevron U.S.A. v. Natural Resource Defense Council (1984). This Chevron decision has become one of the most-cited of all rulings, because federal agencies are making so many decisions that affect so many people.
Here are some examples of agency decisions affecting ordinary people:
- An administrative agency known as the Election Assistance Commission (EAC) maintains a federal voter registration form. Decisions of the EAC determine what the contents of the form are. The EAC decided that an oath and checkbox is sufficient proof of citizenship for applicants using the federal form, despite how easy it would be for people to falsely claim to be an American citizen. Kansas and Arizona, however, have state laws requiring documentary proof of citizenship (such as a birth certificate). A conservative, Kansas Secretary of State Kris Kobach, brought a federal lawsuit seeking to have the EAC include instructions for Kansas and Arizona voters to include stronger, documentary proof of citizenship, such as a birth certificate, in order to reduce voting by illegal aliens.
- An administrative agency known as the Consumer Financial Protection Bureau is authorized under the Dodd-Frank Act to restrict the use of pre-dispute arbitration clauses in financial contracts, based on the results of a study it is currently (as of 2014) conducting. This could have a profound effect on the availability of a streamlined forum where consumers can bring legal claims against banks, as well as the availability of financial products that may be made possible due to the savings that result from arbitrating disputes rather than expensively litigating them.
- The Internal Revenue Service (IRS) promulgated a rule under Obamacare that will provide government subsidies to individuals purchasing health insurance on Obamacare insurance exchanges, whether they are run by States or by the federal government. Some challengers argue that the literal text for Obamacare allows the federal government to provide for subsidies on only state-run exchanges, not federally-run exchanges. Many people have signed up for health insurance under Obamacare on federally-run exchanges, and are receiving subsidies from the federal government which may not be allowed by law. Litigation is pending to resolve this.
- The Federal Aviation Administration made a rule requiring airfare advertisements to have the total airfare (including taxes) be displayed more prominently than any other price, and required airlines to refund most tickets without charge if cancelled within 24 hours of booking. These regulations survived a court challenge by Spirit Airlines and Southwest Airlines, which objected to this interference with how they would prefer to do business.
The Pendleton Act (1883)
For roughly the first 100 years of the United States, jobs in the federal government were filled based on "political patronage," whereby the political party that won the presidency would pick other members of the same political party to fill the jobs. "To the victor goes the spoils" was a saying that justified this type of favoritism. In short, it was the "spoils system" that allowed an incoming president to fire any federal worker and replace him with one of his political supporters. In 1829, for example, President Andrew Jackson fired many federal workers, particularly in the postal system, and replaced them with people who had helped him become president.
The Pendleton Act, passed in 1883, ended much of that. It established a new "merit-based" system for most jobs in the federal government, which prevents an incoming president from replacing existing government workers. The Pendleton Act requires that most federal jobs be filled based on merit, rather than politics. The exceptions are the top-level positions, such as the heads of the departments, who report directly to the president and thus must be able to get along with him. Those top-level jobs are still filled based on political patronage. A Democratic president picks Democrats to fill those jobs, and a Republican president picks Republicans.
Each of the 50 States has its own State Constitution. Many are much longer than the U.S. Constitution, with far more detailed provisions. But all the State Constitutions guarantee a republican form of government. Most have a "separation of powers" provision similar to the U.S. Constitution.
The New Jersey Constitution is more than 27,000 words long, which is more than six times longer than the U.S. Constitution. The New Jersey Constitution separates the powers of government in its Article 3, Section 1:
|“||The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.||”|
Answer any five out of the following six questions:
1. Which two provisions of the Constitution establish the rules for elections of members of the House and the Senate, and election of the president, and what role do they leave for the States?
2. What is the "Fourth Branch" of government? Include in your answer another common name for it.
3. Explain what habeas corpus is, and how the Constitution protects it. Are there any exceptions where habeas corpus rights may be suspended? If so, then include an example from American history.
4. What is Executive Privilege, and what is your view of it? Is it protected in the Constitution?
5. What is your view of early voting? As part of your answer explain what it is.
6. Explain briefly the process of impeachment and removal from office as provided by the Constitution. Has it ever been used?
Answer any two out of the following three questions:
7. What is your view of President Abraham Lincoln's suspension of habeas corpus rights?
8. Explain what the Supreme Court decided in its Foster v. Love decision, and how that ruling may help explain the Supreme Court's separate decision recently to allow Ohio to reduce its long period of early voting.
9. What is your view of the "spoils system," and how the Pendleton Act ended it?
- The Framers did not misspell "choosing" when they wrote "chusing"; Shakespeare used the same spelling for the word in many of his works. - a good internet source for the works of Shakespeare in their original spellings. Most other attempts to claim that there is a "mistake" in the Constitution are also not really mistakes at all.
- The Magna Carta in 1215 had a protection similar, but not identical, to habeas corpus: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land."
- The Federalist No. 84 (A. Hamilton).