All about Mr. All-Around, Tom Gola

This week in North Philly Notes, David Grzybowski, author of Mr. All-Around, writes about why he wrote about Tom Gola.

“History stands on the legacies of others.”

That’s what La Salle University archivist, Brother Joe Grabenstein told me during my senior year at La Salle University in 2013. With the help of Brother Joe, I had the opportunity to exclusively interview Tom Gola in February of 2013, a month before the Atlantic 10 tournament in Brooklyn, New York. I didn’t know it at the time, but meeting Tom Gola changed my life. If you were to tell me from that meeting I was going to end up writing a book about Gola I would’ve said you’re crazy!

Well, here we are.

Almost 68 months later, I wrote book about Philadelphia’s most beloved college basketball player, Tom Gola.

When I first started this book I knew exactly what I wanted to cover and had a game plan on what stories I really wanted to tell. It was all about execution.

Mr All-Around_smI wanted to show people the behind the scenes aspect of Gola’s life that maybe fans do not know about prior. I wanted to showcase what Gola was like as a player off the court as a father, friend, businessman, mentor and neighbor. One of the more interesting parts of Gola’s life was his time working in the political field in the state of Pennsylvania and Philadelphia. After his time in the NBA, Gola traded in his jersey and shorts for his suit and tie, a opportunity in politics working as a member of Pennsylvania House of Representatives for the 170th district in Philadelphia. Gola would go on to become the Philadelphia City Controller from 1970 to 1974, joining politician Arlen Specter on a joint campaign that revolutionized political marketing within Philadelphia. Its not everyday you see a Philadelphia sports figure succeed in basketball, politics and coaching in the same city he grew up in.

To this day, there is no one that is more “Philly” than Tom Gola. He loved Philadelphia so much that while he played for the New York Knicks in the early 1960’s he decided to live in his Philadelphia home with his family and traveled to and from practices and games. You can’t get more Philadelphia than that.

I firmly believe that Gola’s story is so much more than just Philadelphia based. Tom Gola saved college basketball in the 1950’s after a huge point shaving scandal that involved a lot of basketball programs that tarnished basketball for some time. Gola was the first major college basketball star to come out of that debacle and he took the league by storm, winning the NIT in 1952 and the NCAA championship in 1954, both with the La Salle Explorers.

Tom Gola’s legacy will forever be talked about as one of the best college basketball players in history. Gola will forever be the all-time leading rebounder in NCAA history with 2,201 rebounds. Gola is one of two players in NCAA history to score more than 2,000 points and grab 2,000 rebounds during his collegiate career. To this day, Tom Gola’s name is always brought up in the NCAA and NBA game of today. Thats a sign that his legacy still remains.

Tom Gola’s story needs to be told and I’m happy to be the one to tell his story.

 

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Highlights from the latest–and past–issues of Kalfou, a Journal of Comparative and Relational Ethnic Studies

This week in North Philly Notes, we present the table of contents for the new issue of Temple University Press’s journal, Kalfou, edited by George Lipsitz, as well as some links to sample articles from previous editions of the journal.

Please recommend to your library! • To subscribe: click here  

VOLUME 5, ISSUE 2 • FALL 2018

Kalfou_generic-cover_102015FEATURE ARTICLES • From the symposium “Over the Line: A Conversation about Race, Place, and the Environment,” edited by Ingrid R. G. Waldron and George Lipsitz

No Ordinary Time: Indigenous Dispossession and Slavery Unwilling to Die • George Lipsitz

A Precarious Confluence: Neoliberalism, Race, and Water Insecurity • Michael Mascarenhas

Women on the Frontlines: Grassroots Movements against Environmental Violence in Indigenous and Black Communities in Canada • Ingrid R. G. Waldron

Marginalizing Poverty with Car-Dependent Design: The Story of Two Expulsions • Tristan Cleveland

Indigenous Environmental Justice, Knowledge, and Law • Deborah McGregor

Reconciliation and Environmental Racism in Mi’kma’ki • Dorene Bernard

Dismantling White Privilege: The Black Lives Matter Movement and Environmental Justice in Canada • Cheryl Teelucksingh

Community Mobilization to Address Environmental Racism: The South End Environmental Injustice Society • Louise Delisle and Ellen Sweeney

This Sacred Moment: Listening, Responsibility, and Making Room for Justice • Sadie Beaton

IDEAS, ART, AND ACTIVISM
TALKATIVE ANCESTORS Ida B. Wells on Criminal Justice

KEYWORDS Deflective Whiteness: White Rhetoric and Racial Fabrication • Hannah Noel

LA MESA POPULAR The Dependent Origination of Whiteness • John B. Freese

ART AND SOCIAL ACTION Stanton Heights: Intersections of Art and Science in an Era
of Mass Incarceration • Norman Conti

MOBILIZED 4 MOVEMENT The ENRICH Project: Blurring the Borders between  Community and the Ivory Tower • Ingrid R. G. Waldron

TEACHING AND TRUTH Rules and Consequences • Dave Cash

IN MEMORIAM When Giants Leave the Forest, the Trees Carry Their Songs: Clarence
Fountain, Edwin Hawkins, Walter Hawkins, Aretha Franklin • Johari Jabir

Sample articles from past issues

“A Relatively New Discovery in the Modern West”: #BlackLivesMatter and the Evolution of Black Humanism, Juan Floyd-Thomas, Kalfou 4-1 (2017).

A Precarious Confluence: Neoliberalism, Race, and Water Insecurity, Michael Mascarenhas, Kalfou 5-2 (2018)

No Ordinary Time: Indigenous Dispossession and Slavery Unwilling to Die, George Lipsitz, Kalfou 5-2 (2018)

Prophets and Profits of Racial Science, Ruha Benjamin, Kalfou 5-1 (2018)

 

University Press Week Blog Tour: “The Neighborhood” and Finding Diamonds in Our Own Backyard

Temple University founder, Russell H. Conwell’s speech, Acres of Diamondsoffers a multitude of lessons about the rewards of work, education, and finding the riches of life in one’s own back yard.

At Temple University Press, our books that are connected to the university in some way represent the riches in our back yard. Here is a sampling of our favorite titles about Temple, by Temple professors, or by Temple graduates.

 

About Temple University

Color Me…Cherry & White. The brainchild of Press Marketing Director Ann-Marie Anderson, Temple University’s first adult coloring book features more than twenty iconic Temple University landmarks taken by the University Photography Department and crafted into pages for amateur artists to beautify. The designs stoke memories and provide stress relief as artists create their own colorful impressions of the campus.

Temple University, 125 Years of Service to Philadelphia, the Nation, and the WorldJames Hilty and Matthew Hanson. The first full history of Temple University, lovingly written and beautifully designed, this book provides a rich chronicle from founder Russell Conwell’s vision to democratize, diversify, and broaden the reach of higher education.

The Education of a University Presidentby Marvin Wachman. Marvin Wachman’s parents were Russian Jewish immigrants with little formal education. Yet they instilled in their son the values of education, self-improvement, and perseverance. Because of Wachman’s beliefs in human progress, he learned not only how to survive in hard times, but how to flourish.  The Education of a University President recalls Wachman’s distinguished career in education and his steadfast dedication to liberal values.

By Temple University Professors

The Magic of Children’s Gardens, by Lolly Tai, Professor of Landscape Architecture at Temple University.  In The Magic of Children’s Gardens, landscape architect Lolly Tai provides the primary goals, concepts, and key considerations for designing outdoor spaces that are attractive and suitable for children, especially in urban environments. Tai presents inspiring ideas for creating children’s green spaces by examining nineteen outstanding case studies, including the Chicago Botanic Garden, Winterthur, and the Brooklyn Botanic Garden.

Dancing the Fairy Tale, by Laura Katz Rizzo, Program Director of the Bachelor of Fine Arts Program in Dance and an Assistant Professor of Dance at Temple University. Using extensive archival research, dance analysis, and American feminist theory,Dancing the Fairy Tale places women at the center of a historical narrative to reveal how the production and performance of The Sleeping Beauty in the years between 1937 and 2002 made significant contributions to the development and establishment of an American classical ballet.

Philadelphia Maestros, by Phyllis Rodriguez-Peralta, Emeritus Professor of  Spanish and Portuguese at Temple University. A lifelong fan and scholar of the Philadelphia Orchestra, Phyllis Rodriguez-Peralta paints intimate portraits of conductors Eugene Ormandy, Riccardo Muti, and Wolfgang Sawallisch, using archival material and interviews. She recounts Eugene Ormandy’s performance as a last-minute substitute for guest conductor Arturo Toscanini; Riccardo Muti’s magnetic presence and international fame; and the role of Wolfgang Sawallisch in moving the Orchestra to its grand new hall at the Kimmel Center.

By Temple University Graduates

The Eagles Encyclopedia: Champions Edition, by Ray Didinger.  In this Champions Edition of The Eagles Encyclopedia, Didinger recounts the team’s remarkable, against-all-odds season that culminated in Super Bowl LII where they upset the New England Patriots. He updates his best-selling book The Eagles Encyclopedia with the departure of Coach Chip Kelly and the dawn of the Doug Pederson era. He provides a new chapter on the 2017–18 season and postseason. And he includes dozens of new player, coach, and front-office profiles as well as updates on 2018 Hall of Fame inductees Brian Dawkins and Terrell Owens.

My Soul’s Been Psychedelicized, by Larry Magid. In My Soul’s Been Psychedelicized, Magid presents a spectacular photographic history of the bands and solo acts that have performed at the Electric Factory and at other venues in Factory-produced concerts over the past four decades. The book includes concert posters, photographs, and promotional items featuring both rising stars and established performers, such as Pink Floyd, Jimi Hendrix, Bob Dylan, Bruce Springsteen, Bette Midler, Elvis Presley, Tina Turner, Pearl Jam, and many, many more.

Not from Here, Not from There, by Nelson Diaz. In his inspiring autobiography, Not from Here, Not from There, Judge Nelson Díaz tells the story of his struggles and triumphs as his perspective widened from the New York streets and law school classrooms to the halls of power in Philadelphia and Washington, DC. Whether as a leader in economic development, a pioneer in court reform, or a champion of fair housing, Díaz has never stopped advocating for others. Díaz was happy to be the first Latino to “do something,” but he never wanted to be the last. This story of an outsider who worked his way to the inside offers powerful lessons on finding a place in the world by creating spaces where everyone is welcome.

University Press Week Blog Tour: Arts and Culture

It’s University Press Week and the Blog Tour is back! This year’s theme is #TurnItUP. Today’s theme is Arts and Culture

banner.upweek2018

MIT University Press @mitpress
Is planning a Q&A with our longtime editor Roger Conover (who is retiring next year) and one of his authors Slavoj Žižek , a philosopher and cultural critic, about his career here at the Press.

Athabasca University Press  @au_press
Discusses Frankenstein’s influence on Canadian pop culture with a focus on music. Naturally, the author had to create a mix of all the songs mentioned in the book and so we will be discussing how university presses can quite literally #TurnItUp.

Rutgers University Press @RutgersUPress
Dedicates a post to our new book Junctures in Women’s Leadership: The Arts by Judith Brodsky and Ferris Olin

Yale University Press @yaleARTBooks
Based on the book Essential Modernism, edited by Dominic Bradbury, we’ll have a post by Dominic about how immigrants enrich a country’s art and architecture (discusses a number of artists and architects who arrived in the US at midcentury).

Duke University Press @DukePress
Features some recent collaborations with museums, sharing why these collaborations work for both of us.

University of Minnesota Press @UMinnPress
Adrienne Kennedy will be inducted into the Theater Hall of Fame on Nov. 12th. We’ll run an excerpt from The Adrienne Kennedy Reader.

University of Toronto Press @utpress
Social media specialist Tanya Rohrmoser discusses how social media can be an effective vehicle for communicating research in the arts and humanities

The Working People of Philadelphia, Then and Now

This week in North Philly Notes, we highlight a program entitled, “The Working People of  Philadelphia, Then and Now,” which honors a reissue of Bruce Laurie’s classic labor history,  Working People of Philadelphia, 1800-1850.

The program is one in a series planned in conjunction with the reissuing of 30 out-of-print Temple University Press Labor Studies and Work titles in open access format.

Thanks to a grant from the National Endowment for the Humanities, the Press, in collaboration with Temple University Libraries, will reissue 30 outstanding labor studies books in PDF, EPUB, and MOBI formats and make them freely available online. Chosen by an advisory board of scholars, labor studies experts, publishers, and librarians, each book contains a new foreword by a prominent scholar, reflecting on the content and placing it in historical context.

VannemanLast week, Matt Wray penned an essay for Public Books on  The American Perception of Classby Reeve Vanneman and Lynn Weber Cannon.

He writes, “… the 1987 publication of The American Perception of Class came as something of a shock. Many in the social sciences, particularly those affiliated with the New Left, seemed not to know what to make of the renegade ideas put forth by Vanneman and Cannon, whose central claim was simple and elegant: one should not mistake the absence of class conflict for absence of class consciousness.”

 

The Working People of Philadelphia, Then and Now

On November 7, at 6:00 pm at the Ethical Society, 1906 Rittenhouse Sq. in Philadelphia, Temple Libraries and Temple University Press are presenting a panel entitled, “The Working People of Philadelphia, Then and Now.”

Laurie_Cover_SM.jpgIn 1980, historian Bruce Laurie published The Working People of Philadelphia, 1800-1850. The book has now been reissued and is freely available online thanks to a grant from the National Endowment for the Humanities. This title is part of a larger collection of open access books on Labor Studies and Work published by Temple University Press.

In celebration of its return, please join us for a conversation with historians and Philadelphia natives Francis Ryan and Sharon McConnell-Siddorick. They will discuss questions such as: what was it like to be a worker in Philadelphia in the nineteenth century? How was the Philadelphia working class constituted by race, ethnicity, gender, and occupation? What were some of the major problems, hopes, and aspirations that workers shared? What were the cultures, organizations, and institutions that workers created? In what ways have things changed for the better for Philadelphia workers in 2018, and in what ways are they still struggling?”

Registration is requested https://www.eventbrite.com/e/the-working-people-of-philadelphia-then-and-now-tickets-50361771414

About the panelists for The Working People of Philadelphia, Then and Now.

Speakers:

Francis Ryan is graduate program director at Rutgers University’s Masters in Labor and Employment Relations program in New Brunswick, New Jersey. His book AFSCME’s Philadelphia Story: Municipal Workers and Urban Power in the Twentieth Century was published by Temple University Press in 2011. He is the editor of The Memoirs of Wendell W. Young III: A Life in Philadelphia Labor and Politics, forthcoming from Temple University Press.

Sharon McConnell-Sidorick is an independent historian and author. She attended the University of Pennsylvania on a Bread Upon the Waters Scholarship for returning women and graduated with a degree in Anthropology. She received her Ph.D. in History from Temple University. She is the author of Silk Stockings and Socialism: Philadelphia’s Radical Hosiery Workers from the Jazz-Age to the New Deal (University of North Carolina Press, 2017), and has written for Jacobin, H-Net and Pennsylvania History. She wrote the forward for the new edition of Bruce Laurie’s The Working People of Philadelphia, 1800-1850, published by Temple University Press, 2018.

Moderator:

Cynthia Little began her involvement with public history in the 1970s when she was a doctoral student in history at Temple University. She has worked at the Philadelphia Area Cultural Consortium, the Historical Society of Pennsylvania, and most recently at the Philadelphia History Museum. She has consulted on public history initiatives including for the local tourism industry and the City of Philadelphia. Many of the projects she created have highlighted labor history.

About The National Endowment for the Humanities

Created in 1965 as an independent federal agency, the National Endowment for the Humanities supports research and learning in history, literature, philosophy, and other areas of the humanities by funding selected, peer-reviewed proposals from around the nation. Additional information about the National Endowment for the Humanities and its grant programs is available at: www.neh.gov

The Myth of Sexual Violence as Only a Crime Against Women

This week in North Philly Notes, we re-post Sex and the Founding Fathers author Thomas Foster’s recent article about sexual violence that appeared October 24 in The A-Line.

By Thomas A. Foster

In our national discussions about sexual assault and sexism that swirled around the Brett Kavanaugh hearing, we veered toward the historical view of sexual assault as a gendered crime. Men played a variety of roles in this national drama—as perpetrators of sexual violence, as raging patriarchs who have been angered by the audacity of women to accuse men of sexual violations, and as pro-feminist allies—but they did not figure prominently as survivors of sexual assault or harassment.

Indeed, if men figured as victims at all in our national discussions, it was primarily as targets of lying women, as victims of a “vast conspiracy,” as Brett Kavanaugh phrased it in his opening statement before the Senate Judicial Committee. Or, as President Trump put it: “It is a very scary time for young men in America, where you can be guilty of something you may not be guilty of.”

As an historian of sexuality in early America, I cannot hear such assertions without being reminded that the notion that every man should be concerned about the power of women’s false accusations of sexual violence is a very old one. It has always relied on misogyny and an inversion of the realities of our courts and culture—a paranoid, sexist fantasy that places powerful men in positions of vulnerability and vulnerable women in positions of supposed authority.

The book Look e’re you Leap; or, A History of Lewd Women (Boston, 1762), for example, warned men by deploying tales of rejected women who used false accusations of rape and seduction to have their revenge. Newspapers in eighteenth-century America routinely included similar fictional tales and just as many stories of trials and false accusations of rape to extort money. One problem with this fearmongering, as Tyler Kingkade points out, is that men are actually more likely to be victims of sexual assault than of false rape accusations brought by women.

Senator Feinstein prefaced her hearing remarks with the statistic that 1 in 6 men have been victims of sexual assault. Even with significant underreporting, 1 in 5 sexual harassment charges filed with the Equal Employment Opportunity Commission come from men. Other figures confirm sexual violence against men as a significant problem. The Department of Defense reported that of nearly 20,000 reports of sexual violence in 2014, for example, roughly half were from men. Sometimes recognizing the existence of an issue does not mean that we take it seriously. Just as with comments that dismissed Kavanaugh’s alleged assault, sexual violence against incarcerated men is an open secret. All too often, it is treated as a source of humor.

Part of the reason that men have not been largely recognized as victims of sexual violence is that our nation has yet to move beyond the gendered definition of sexual assault established by previous generations. In colonial America, rape was explicitly a gendered crime and it remained defined as a crime against women for centuries. It was often also seen as a crime against the victim’s male guardian, a violation of one man’s patriarchal authority of a female dependent. It was only in the 1970s that states began revising sexual assault laws to include male victims. Only in 2012 did the FBI move away from its definition of rape as a crime against a “female,” a definition that had been in use since 1930 when it began tracking such crimes. The FBI definition, however, still focuses on “penetration” and excludes men who are forced or coerced to penetrate. When a CDC study in 2012 included men who were forced or coerced to penetrate in its study of intimate partner violence, it found that men and women reported relatively equal rates of non-consensual sex. The media reporting on the study, however, reverted to the soundbite that women were “disproportionately affected by sexual violence.”

The women’s liberation movement was effective at helping us recognize that power is at the center of sexual assault, instead of lust, as had been the previous interpretation. Feminism provides the tools for understanding sexual violence against men, even if popular culture has still largely defined sexual assault as a crime against women. Including men in a broader discourse about sexual violence, one that still takes into account gender, forces us to think more about root causes of sexual exploitation, rather than letting expressions of it define the problem in today’s society. One danger of defining sexual violence as a gendered crime is that vast portions of the country will reduce some of what is discussed to boorish behavior rather than expressions of abuse.

A young man who commits the kind of sexual assault that Brett Kavanaugh was accused of, is not only a man who does not respect women; he is a person who abuses power and authority for personal satisfaction and gain. The Kavanaugh hearing has shown us many things about ourselves, including that we have progressed very little in our understanding of root causes of sexual assault, and, I fear, therefore, even less in our ability to prevent it.

Ask the author: The imperial presidency and the Supreme Court

This week in North Philly Notes, we re-post Ronald Collins’ interview with Kimberley Fletcher, author of The Collision of Political and Legal Timethat appeared on the SCOTUSBlog on October 18. 

Welcome, Kimberley, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your book.

Question: Can you explain why you selected the title you did?

Fletcher: Thanks to you and SCOTUSblog for this wonderful opportunity to talk about my new book, and for your insightful questions.

I wanted a title that clearly reflected how I understand the growth of executive power and authority in foreign policy-making over developmental time. Many attribute the growth of presidential powers in this area to an aggrandizement of authority by the executive, the acquiescence of Congress and the state’s capacity to act under exigent circumstances. And the role of the courts has simply been to sanction this accumulation of power. However, this perspective overlooks the Supreme Court’s institutional positioning to redefine the scope and breadth of presidential powers vis-à-vis Congress. As political questions are transformed into legal disputes, the court can give meaning to values that have profound political consequences (including regime-building). Courts are therefore primed to institute change.

Question: You are a political scientist. Political scientists like the late C. Herman Pritchett (1907-1995) and others bring their own views into the mix of constitutional law in the area of presidential power. Generally speaking, in what ways might your view and that of your fellow political scientists differ from that of lawyers and law professors?

Fletcher: As a political scientist I seek to move beyond tracing how legal doctrine has changed, to include an evaluation of how various forces (both internal and external to the Supreme Court) have been instrumental in shaping constitutional law over developmental time. Specifically, the focus of my research is the intersection of legal studies (examining how law shapes and is shaped by political, economic and cultural forces) and American political development (focusing on the causes and consequences of major transformative periods in American political history). This intersection of law and politics allows for a clearer understanding of how presidential prerogatives in international affairs have been transformed by the courts over developmental time.

Question: You divide executive power in foreign affairs into two basic categories: the pre-1936 view and the post-1936 view. First, tell us a little bit about the pre-1936 view.

Fletcher: It is well documented that as orthodox republicans, the Framers inherited a well-established fear that the greatest danger to liberty lurked in the unchecked ambitions of the executive. Because of their deeply held fear of unilateral presidential power, the Framers embraced the principle of collective decision-making, the belief that the combined wisdom of legislatures is superior to that of a single executive. And the court’s early jurisprudence (pre-1936) reasserted these principles when it decided, in a variety of cases, the dual nature of collective decision-making between the president and Congress (Bas v. Tingy (1800), Little v. Barreme (1804), and the Prize Cases (1863)). The court left little doubt about the limited scope of the executive’s war power as the lion’s share rested with Congress.

Question: Now, please explain the post-1936 view.

Fletcher: The post-1936 view represents a sharp departure from early constitutional foreign affairs jurisprudence. Nineteenth-century deference to Congress in foreign affairs gave way in the 20th century to a distinct judicial conjecture favoring unilateral executive power in international relations. The court in the 1936 case United States v. Curtiss-Wright Export Corp. instituted a new constitutional order, for the first time establishing plenary powers that were not dependent on congressional delegation. The court reasoned that although the Constitution does not explicitly vest in the president the authority to conduct foreign policy, it gives that authority implicitly through the commander-in-chief clause. Although Justice George Sutherland, majority opinion writer, misappropriated Chief Justice John Marshall’s 1800 sole-organ speech and inflated presidential prerogatives, courts, in a series of cases (Japanese internment, Dames & Moore v. Regan (1981) and Regan v. Wald (1984)), have entrenched this new constitutional order, which in turn has institutionalized presidential ascendency.

Ultimately, the Supreme Court, over developmental time, has delineated the constitutional and political space that has allowed presidents to have the authority and the legislature to have the power to cooperate in a way that meets the practical realities of handling the ever-intensifying realm of international relations.

Question: As a historical matter, how does the Supreme Court’s 7-1 ruling in United States v. Curtiss-Wright Export Corp. in 1936 square with the originalism of Justices Antonin Scalia and Clarence Thomas?

Fletcher: Scalia was a staunch originalist and Thomas comes close to this view. And Justices Neil Gorsuch and Brett Kavanaugh (identified as “stalwart originalists”) also follow in this tradition. Originalists maintain that the Constitution is an enduring document and major changes need to be done through the democratic process.

Question: In several important respects, Presidents Barack Obama, George W. Bush and Bill Clinton followed in the power-aggrandizing footsteps of President Franklin Roosevelt when it came to their authority over wars and foreign affairs. Given that, and the virtual abdication of oversight power by Congress, how realistic is it to think the federal courts have any role to play here?

That is, when one combines the enormous powers conceded to the president in cases such as Curtiss-Wright, United States v. Belmont (1937), United States v. Pink (1942), Dames & Moore v. Regan(1981)Regan v. Wald (1984) and Zivotofsky v. Kerry (2015), it seems that the limits the Supreme Court placed on such powers in a handful of detainee cases (e.g., Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (2008)) are paltry by comparison. What is your sense of that?

Fletcher: The federal courts have a sizeable role to play. I believe it is less about the courts ceding power and more to do with the courts advancing and redefining presidential prerogatives.

Yes, Obama, Bush II and Clinton all followed in the power-aggrandizing footsteps of FDR, but it was the CurtissWright court that provided the legal jurisprudence to successive courts and the executive branch to proceed in this vein. While subsequent courts have further empowered the executive to conduct foreign affairs, it is the Supreme Court that remains institutionally positioned to provide any limits to that power. As I show in chapter six of my book, when Bush II challenged the institutional integrity of the court to review presidential actions, the court took umbrage in the detainee cases. When the court is challenged on its supremacy over constitutional interpretation, it confronts the primary commitments of the majority coalition and (re)establishes its institutional legitimacy. So Hamdan and Boumediene both remind presidents that when they challenge the role of the court, it will push back, and it will redefine the scope of executive authority if needed. These cases also show that when both institutions (executive and legislative) violate constitutional guarantees, the court will not approve of such action. With that said, even though the court rebuked presidential prerogatives, these decisions did not adequately address the core war-making powers of the president.

Question: You discuss executive powers in the context of “pragmatic realities.” You note that “exceptional times demand exceptional measures.” In our post-9/11 terrorist world buffeted by cyber terrorism, are not all times “exceptional” ones? After all, if the terrorist threat is constant, do not “pragmatic realities” dictate “exceptional” latitude when it comes to executive powers in this realm?

Fletcher: That has certainly been the claim: In a post-9/11 terrorist world where the terrorist threat is constant, we should afford exceptional latitude to the executive branch to keep our nation safe. Although this argument has enjoyed widespread support, I would ask at what cost? As I argue in the book, it is the court’s responsibility to determine when heightened national security demands the restriction of rights. And the court strikes this balance by evaluating external factors in line with internal norms (see 1952’s Youngstown Sheet & Tube Co. v. Sawyer and the detainee cases). The executive’s claims to unrestrained power and authority during exceptional times are then bounded by the court’s determination of those claims.

Fletcher.Kimberley

Kimberley Fletcher

Question: In a recent essay in the New York Review of Books, Jonathan Stevenson wrote: “Over the past forty-five years, the effective scope of the [War Powers Act] has remained more or less the same. Hawks don’t want to press federal courts to clarify how widely it applies for fear of a ruling that would restrict executive power. Doves are afraid the courts will expand it. The courts themselves are wary, too. They tend to regard disputes between the White House and Congress about the applicability of the act as political questions inappropriate for judicial review.” If so, where does this leave Article III courts and especially the Supreme Court?

Fletcher: First, speaking to the War Powers Resolution of 1973. This act represented an abject surrender of the war power. Ultimately, Congress cannot delegate to another branch the constitutional power to decide war. Statutes, such as WPR, that intend to limit executive authority by requiring legislative oversight have been interpreted in ways that permit substantial presidential autonomy. For example, Clinton was quite aggressive in his use of military force without congressional approval by relying on executive orders and loopholes of the WPR – skirting around the strict reporting requirements by filing separate reports to Congress that regenerated the “sixty-to-ninety-day clock.”

Second, when courts invoke the political question doctrine they abdicate their constitutional obligation to review cases and controversies. That leaves us waiting for the issue to be resolved by the political branches, and, as we know, Congress is unlikely to challenge the executive directly. And, even when legislative members have brought a suit (1979’s Goldwater v. Carter and 2002’s Kucinich v. Bush) the courts have sidestepped the issue, punting it back to the political branches. Consequently, the executive branch continues to circumvent the democratic process as it forges ahead with its foreign policy agenda.

Question: 1984’s Regan v. Wald, concerning the Treasury regulation that barred travel to Cuba, was a 5-4 decision. In his dissent, Justice Harry Blackmun made a strong case that Congress intended to bar the president from expanding the exercise of emergency authority under Section 5(b) of the Trading With the Enemy Act.

Was this a case of the Supreme Court exercising its supremacy in matters of presidential power in foreign affairs, or was it an example of the court yielding to presidential supremacy?

Fletcher: As I discuss in my book (chapter five), this is a clear case in which the court was flexing its institutional muscle.

Dames (1981) and Regan (1984) were decided when the U.S. was involved in the Cold War and the political pressures placed on the administration necessitated a number of wide-ranging policies. Under these circumstances, the court contended that the executive had a significant role in the conduct of the nation’s foreign policy as the president attempted to contain the spread of communism. The court in both cases, re-engineering authority, clearly asserted its prowess in settling which branch and by what measure foreign policy was conducted.

By re-examining Regan in line with Dames, I show the extent to which the court deliberately shifted authority from Congress to the president by finding exceptions to justify and sanction the executive’s broad discretionary authority. For example, the Regan court determined that congressional silence and practice implicitly delegated to the executive the emergency authority to restrict travel unilaterally.

Question: The ability of federal courts to review the president’s powers in the domain of international affairs depends on the existence of a concrete case or controversy under Article III. Absent some concrete injury to a particular person or class of persons, who would have standing to contest the scope of presidential power? See Campbell v. Clinton (D.C. Cir., 2000) (holding that 31 House members lacked standing to contest Clinton’s conduct of the Kosovo war). How much do Article III constraints on litigants limit the Supreme Court’s ability to check presidential power?

Fletcher: To your first question. Courts have noted that to assert an institutional injury the chamber, as an institution (and not a few disgruntled legislators), must show it has been injured. The courts have a mixed history on this issue. For example, in 1939’s Coleman v. Miller the court granted standing to 21 Kansas senators because the court found that the senators represented the Senate’s institutional position. But in other instances, 2000’s Campbell v. Clinton and 2002’s Kucinich, courts have dismissed cases because of a lack of standing; a few legislators cannot represent the entire chamber. It is my sense that over time these cases have become more about challenging executive action as an institution, which in turn would require the congressional chamber to be represented in the case as a collective body and not as a few legislators.

To your second question. It is less about whether Article III constrains the court and more a question of the court claiming that Article III constrains it. By that I mean the court can conveniently determine when Article III constrains its decision-making. It is my view that in many of these cases the court could decide on the merits. A clear instance would be whether the president has the authority to unilaterally terminate a treaty (Kucinich 2002).

CollisionofPoliticalandLegalTime.jpgQuestion: You quote Norman Dorsen for the proposition that “national security has been a graveyard for civil liberties for much of our recent history.” It seems that the court’s 2010 ruling in Holder v. Humanitarian Law Project (upholding a material-support-to-foreign-terrorist-organizations restriction in context of political speech) confirms that. Once any administration invokes the “national security” mantra, isn’t that really the end of the matter when it comes to any meaningful check on that power by way of judicial review?

Fletcher: National security concerns have been expanded to include just about anything, from immigrants, refugees and separating children from migrant parents, to importing steel and aluminum. And once national security is invoked it appears as though that it is the end of the matter, as the administration cannot be challenged. But this rhetoric is a public and legal justification for policies that appear, at times, to have little association between the issue presented and viable threats to the nation. So, the courts can play an important role to determine when these claims are valid. In fact, the U.S. Freedom of Information Act permits courts to review whether national security information is properly exempt from disclosure, but it requires an active judiciary to check unjustified national security secrecy. The Supreme Court can thereby strike a necessary balance and serve as a meaningful check just as I show in several chapters of my book.

I would also add that it is incumbent upon us all — general public, media, Congress and elites — to keep our government accountable when it invokes the national security mantra.

Question: Which of the justices in the current five-member conservative bloc do you think might vote to rein in executive power in the foreign affairs area?

Fletcher: I don’t believe the court will really rein in executive power in foreign affairs unless the court’s institutional authority to review such actions is called into question (see detainee cases). Moreover, as recently as 2015 the court in Zivotofsky v. Kerry entertained no direct challenge to the executive’s claim of presidential prerogatives. Yes, the court appeared to have jettisoned the sole-organ doctrine, but the court in a very significant way, in a number of passages, continued to advance plenary and exclusive presidential powers.

In terms of the conservative bloc, Kavanaugh’s confirmation places him alongside Alito and Gorsuch, with Thomas farthest to the right and Chief Justice John Roberts situated more toward the middle. With this alignment it is hard to imagine this bloc limiting the executive’s authority, but there is always room for renegotiating the extent of presidential prerogatives statutorily. Thomas, for example, remains steadfast in supporting presidential prerogatives: The court should not “second-guess” the decisions of the executive branch (Hamdi (2004)). And Kavanaugh’s paper trail suggests he is not only sympathetic to the office of the president (in matters involving civil suits, criminal investigations or criminal prosecutions), but also that he has a robust view of executive power in the area of national security. For example, Kavanaugh went out of his way in Klayman v. Obama to argue that the metadata-collection program did not necessitate warrants because the executive had ordered the program to combat terrorism.

However, if assessments are correct and Roberts does move to the left (as we saw with his vote to uphold the constitutionality of the Affordable Care Act), then perhaps he might be the one justice to sway the balance. But that is hard to imagine given Roberts’ 2008 dissenting opinion in Boumediene. Here Roberts stated the government had devised a deliberate and careful system of procedures for those detained in the ongoing military conflict.

Question: Executive power extends beyond the particular actions of a sitting president. For example, to an unprecedented degree the Trump administration has left many foreign-policy posts unfilled. The result has been to shrink the State Department. In an interview aired on Fox News, President Donald Trump stated: “Let me tell you, the one that matters is me. … I’m the only one that matters, because when it comes to it, that’s what the policy is going to be. You’ve seen that, you’ve seen it strongly.” Assuming, hypothetically, that practice of leaving vacancies unfilled continued for whatever reasons, what role, if any, does that leave the Supreme Court in shaping the extent of presidential power?

Fletcher: Great question. When State Department positions are not filled we are potentially left with incoherent policies, or policies shaped by an underrepresentation of career foreign service officers. Consequently, we are undermining U.S. diplomacy and thus jeopardizing U.S. leadership globally. Although the lack of appointments may not be disastrous, as positions are filled in an acting capacity, these acting positions are not fully empowered and cannot remain indefinitely.

Presidents, at the end of the day, have largely been determining American foreign policy (with or without State Department help), and the court has aided in shaping the extent of presidential power in this area. This is all too evident with the 2015 Zivotofsky decision: The court determined in that case that the president has the exclusive power to recognize (or not recognize) foreign nations, so the legislature may not require the State Department to indicate in passports that Jerusalem is part of Israel.

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