Education, politics and life - not so random thoughts

I have not been posting much recently.  I have wondered if anything I might share was worth either my time to write it or your time to read it, and had come to the conclusion that I had little of value to share.  I have  been very busy with a new semester, with activities on NCLB  and Yearlykos offline, and with local political activity.  But in the past few days some things have come together in a way that brought me up short, forced me to think in a more focused fashion.  These things cross the range of items in the title of this post, so I will make an attempt to put them together in a cogent fashion.  What I write may still not be worth the time I spend doing or the time you spend reading, if you bother to keep reading.  But I will write it, and then it is up to you to decide if you wish to read further.
My AP government students have been examining restrictions on presidential power.  I had them read two opinion of Robert Jackson, his dissent in Korematsu and his concurrence in Youngstown.  In the former Justice Jackson objected to the removal of those Japanese Americans who were US Citizens, seeing it as a denial of due process, and as effectively a Bill of Attainder and corruption of blood.  It is clear he would accept the idea that a national of a nation with whom we were at war could legitimately be interned, but was repulsed by the idea that family members who were US citizens should therefore also be interned.  Many of the students I teach are either not yet citizens themselves, are citizens but were born overseas, or were born here of immigrant parents.  In my three AP classes those categories cover about 1/3 of my students.  Some who are Muslim have been very upset by some of the actions this administration has taken in the aftermath of 9-11. 

It was the concurrence in Youngstown, however, that did the most to clarify my thinking.  Jackson's opinion sets up a three category test for examining conflicts between the President and Congress.  In category 1, the President's powers are at their maximum, because Congress has authorized, explicitly or implicitly, the actions upon which the executive is embarked.  I explained to my students that an explicit authorization would be passage of legislation to empower the executive, and implicit might be the voting down of legislation that would limit executive authority.  The second category would be when the Congress had neither authorized nor prohibited, and one could argue the existence of overlapping authority between the two branches.  Such situations are perhaps the most contentious Constitutionally, as I pointed out to my students.  The final category would be when the Congress had rejected or limited executive authority in the domain in which the presidential action was done or proposed.  In the case at hand, the steel seizure, Jackson argued that three specific statutes addressing protection of private property made clear that Truman's actions fell in the third category.  In such a situation Presidential powers were at their weakest, and he supported the Court decision declaring the steel seizure unconstitutional.

Because this was a concurring opinion, it did not originally have the force of precedent.  But because SCOTUS has consistently relied upon this 3-category classification in subsequent cases involve disputes between the first two branches, it effectively governs rulings on such disputes until SCOTUS reverses or limits it reach.

The people running the current administration may be venal, self-aggrandizing, personally and/or politically selfish, but they are not stupid.  In preparing to cover this material I came to the realization that they very carefully tried to stay within Jackson's framework, so that they could argue that nothing they did fell into the 3rd category, in which presidential power would be at its nadir.  Any time they ran such a risk they would pull the plug and change the subject, or try to cut a deal.  This has been true since Florida in 2000.

I asked my students to imagine they were lawyers, and they realized the forthcoming judgment (criminal or civil) might clobber their client.  What would they do?  These very bright students immediately responded that they would try to cut the best deal they could and not let the case go to judgment.  I then took them back to Florida.  There was an argument about whether overseas absentee ballots received by the 10th day after the election but lacking a post mark could be counted.  The Bush campaign, represented by Ben Ginsberg, was arguing that in the hurry to get shipboard mail out it would not be the fault of the servicemen if ballots were simply placed in the mailbag without being canceled.  Remember, the Bush campaign was trying to maximize its advantage from the military vote to protect it against a recount.  But the judge in Leon County hearing the case pointed out that the consent decree which allowed ballots that had been postmarked by election day and received within the next ten days should probably be read as only applying to the election in which it was issued, and that proper interpretation of the law would mean that any ballot not received by election day should not be counted.  He had telegraphed his ruling.  Ginsberg realized the implication:  were that ruling issued and a chunk of military absentees rejected, the facts on the ground might well show Bush trailing.  He quickly cut deals with as many Republican voting supervisors as he could and pulled the suit.  Thus in a sense, even thought we are talking courts and not Congress, he was able to keep the situation in category 2 and not category 3.

We have seen a similar pattern with the handling of Padilla, with pulling the charges of terrorism and transferring the accused from the 4th circuit to facing ordinary criminal charges in  Miami, an action that infuriated Michael Luttig, who attempted to stop the transfer.  We can argue that a similar pattern involving the Congress can clearly be seen in when the administration abandoned its opposition to a cabinet Department of Homeland Security.  Remember, originally the administration strongly opposed Lieberman's proposal, and instead established an office headed by Tom Ridge in the White House - such an office did not require its leaders to be subject to Senate confirmation nor would the actions of such an office be subject to the same kind of Congressional oversight as would a cabinet department.  But when it became clear that Congress had sufficient votes to force creation of a department, the administration dropped its objections and tried to get as much of what it wanted (such as removal of employee protections) in the drafting of the bill.

What is far more important is how often the administration has succeeded in getting Congressional authorization, even if not by normal procedure.  Here the recent disclosure of the dismissal of US Attorneys and the discovery that the administration can replace them for the rest of Bush's term without Senatorial confirmation is illustrative.  Congress HAS authorized this, because Specter - at the administration's request - inserted the provision while the Patriot Bill was in conference committee.  Like many recent provisions of law, the form has been fulfilled when the conference report was accepted by both chambers, but the principle of two chambers each having a chance to independently examine and debate proposed legislation was deliberately bypassed, perhaps because the administration knew that it would not in normal order get the authority it sought.  And yet it can now rightly claim that should it choose not to submit the replacements to the Senate it is acting in a way explicitly sanctioned by the Congress, and thus the presidential powers to so act are at their zenith within the scheme proposed by Jackson.

The title of this diary is about education, politics, and life, and I claim that my thoughts are not so random.  I frequently approach both politics and life through my experiences in the classroom.  I am not a lawyer, rather I teach government to high school students.  I do so because government and the processes that connect with it, including elections, politics, lobbying and the like, have a direct effect upon the lives my students live now and will be able to live in the future.  I have chosen this subject not only because of my own fascination with the subject, but because I also believe I have the potential to inspire my students to the kind of participation that can make a difference. I do not believe that our system of government can survive absent active and informed participation.  Let's examine the last two adjectives, active and informed.

At least on the surface it is relatively easy to be an active participant.  One can register to vote and vote.  One can volunteer for a campaign, or even run for office oneself.  One can join an interest group, or perhaps directly lobby political figures as an individual (something I have been known to do and which I offer as a model to my students).  Our participation in the blogosphere is also a way to be active, perhaps using our words to influence or challenge or inspire others, or to point them at resources of which they might not otherwise be aware.  We can use this mechanism not only to inform, but to challenge, and to organize.

But that activity of little value if it is not informed, or if it results in actions taken without full understanding.  It may even be destructive if we elect politicians who vote without knowing about what they are voting.  We might fulfill the external form of citizens picking our representatives to make decision on our behalf, but they cannot fulfill the intention of that role if they do not have the opportunity - or perhaps the willingness - to understand fully the implications of the provisions on which they are asked to decide.  Further, we will not be able to depend upon the Courts to interpret the intent of such provisions because if they are simply inserted in conference reports, there is no legislative history to which the Courts can turn to see what Congress intended, and this effectively empowers the president to interpret such provisions any way he sees fit.  To argue that Congress could then say "NO" by revising or revoking such authority is not feasible, because the President can simply veto any such attempt, and so long as party loyalty outweighs  institutional loyalty, as has been the case for the last 6 years in a Republican dominated Congress and still seems accurate for a sufficient number of Republican members and senators today, the President retains the trump card.

So let me bring this diary to a focus.  There is something clearly missing in the agenda that our new Democratic Congress has been addressing.  I would like to see BOTH the House and the Senate adopt rules that would prohibit the addition in conference of an item that has not been debated and passed by the chamber from which the member proposition the insertion comes.  The purpose of the conference is to resolve differences between versions of the bill, not to write new bills or insert extraneous material.  I have little hope of seeing this  restriction become an official part of the procedure, but I would hope the leadership would require members that are Democrats to abide by such a set of restrictions.

Let me return to education.  I see a similar set of patterns now arising in schools, in addressing education policy.  We know that NCLB has non-germane provisions such as military access and access for the Boy Scouts despite their homophobia, provisions that have NOTHING to do with the underlying purpose of the bill.  We are seeing groups jockeying for advantage as the reauthorization of the law comes up for consideration in this session.  As a member of the National Council of the Social Studies I was saddened to see the organization take the position of trying to get social studies explicitly included in the reauthorization because while I understand the concern - we are receiving students in high schools now who have not had social studies instruction in elementary and/or middle school because it is not part of the testing scheme under NCLB - I know that the price paid for such inclusion will inevitably be an expansion of the ill-considered testing scheme to things like history and government, and teachers will further lose the ability to connect with students at a level of meaning and connection with their lives as they must prepare students for relatively low level recall tests.  And any further expansion of what is tested will inevitably also restrict those subjects still not tested - art, music, etc. - to the impoverishment of the school experience of students who have no access to such subjects outside of school.  We will in fact be further leaving them behind.

I have addressed education and politics.  And life?  As a teacher of government and one who is something of a political activist clearly I know how these issues affect my life.  That is less a concern than what I see more broadly:  if we do not address how we legislate, if we do not restore our political and governmental processes to be more transparent, more inviting to a larger expanse of citizens, they will not participate, which will inevitably have the effect of activists seeking narrow advantage and resulting in policies that will impoverish the range of possibilities for the greater portion of our populace.  And here I think there is a caution for those of us active in the electronic communities such as dailykos.  We cannot be so focused on winning at any cost that we turn off or dissuade participation by others because we disagree - on a candidate, on a policy.  If our approach is not one of inclusion and openness, we then perpetuate the kind of environment that results in midnight provisions empowering presidents beyond the reach of Congress or the Courts. 

We MUST be active.  We must pay attention.  We can use a forum such as this to sound alarms, to inform, to challenge.  But if we anger or insult, we diminish the audience which we could otherwise reach with our alarms, our information, our challenges. 

Enough of my thoughts.  I see a connection, even if I am incapable of expressing it as clearly as I might like, or as concisely as you, one who has read this far, would have desired.  What do you think?  How do you respond?  A diary such as this has value only insofar as it invokes a response.  That can be agreement, or disagreement, concurrence or dissent:  after all, that is how I began, with a dissent and a concurrence from Robert Jackson.  What say you?  I will read what you write.

Peace.

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