Moving Beyond Schoolhouse Rock and Understanding Regulatory Processes

This week in North Philly Notes, Sara Rinfret, editor of Who Really Makes Environmental Policy?, writes about why regulations do matter.

Former President Trump often used slogans on the campaign trail to “end bad regulations” or to halt the “war on coal.” These soundbites assisted the Trump administration’s efforts to rollback more than 100 environmental regulations in the United States during his presidency. But, why? Are regulations bad?

Teaching courses on U.S. government to high school or college students often only covers the Schoolhouse Rock‘s version of “How a Bill Becomes a Law.” Unfortunately, we do not spend enough time examining in our curriculum what occurs after a piece of legislation becomes law.

Who Really Makes Environmental Policy?, urges that we must increase our understanding of regulatory processes to document policymaking in the United States less complex, with a myriad of access points for public participation. The book uses illustrative environmental policy case studies to guide the reader through the stages of administrative rulemaking. Unpacking these regulatory stages moves us beyond our Schoolhouse Rock mindset and illustrates how and why Congress delegates its decision-making authority to administrative agencies.

Congress delegates the implementation of policy to administrative agencies because it does not have the time or expertise to do so. This delegation of authority provides administrative agencies the ability to create law through the administrative rulemaking process. The stages of this process can be best understood by learning from the case studies that examine each of the distinct steps, such as rule development, public comment, to post-rulemaking activities. Our regulatory adventure does not stop after the stages of the rulemaking, but it is monitored and carried out by state environmental inspectors who ensure compliance with environmental law. These individuals, for example, ensure a nearby company is not improperly disposing of waste.

Unfortunately, the regulatory process is not discussed enough and often depicted as detrimental to business. Who Really Makes Environmental Policy? dispels this myth by inviting and encouraging the opportunity for students, practitioners and the general public to engage in a clear, step-by-step guide about the stages of the process. Specifically, we argue environmental policymaking is not made in a black hole. Instead, taking the time to understand regulatory processes is another access point for the American public to directly engage in providing input by using electronic platforms such as Regulations.gov.  

Regulations are not bad in general; they protect the air we breathe, the food we eat, and the water we drink. The heavy lifters of environmental policy are career civil servants, your next-door neighbor who works for agencies like the Environmental Protection Agency, Fish and Wildlife Service, or the National Park Service, to name a few. We just need to do a better job of understanding the process, which is the goal of Who Really Makes Environmental Policy? As Regulations.gov clearly states, “Make a difference. Submit your comments, and let your voice be heard!”

Listen Up! Temple University Press Podcast Episode 3

This week in North Philly Notes, we debut the latest episode of the Temple University Press Podcast, which features host Sam Cohn interviewing author Stephen Feldman about his book Pack the Court!

The Temple University Press Podcast is where you can hear about all the books you’ll want to read next.

Click here to listen

The Temple University Press Podcast is available wherever you find your podcasts, including Spotify, Apple Podcasts, Google Podcasts and Overcast, among other outlets.

About this episode

Should Democrats add justices to the Supreme Court if given the chance, whether in 2021 or afterward? Or would Democratic court packing destroy the Court as an apolitical judicial institution? In his new book, Pack the Court!, Feldman has written a defense of Supreme Court expansion—a topic that is very much in the news right now with Democrats looking to pass the Judiciary Act of 2021, a bill that proposes to increase the number of Justices and change the ideological balance of the conservative majority. 

One criticism of court packing is that it will destroy the legitimacy of the Supreme Court as a judicial institution. According to this view, the Court’s legitimacy is based on a law-politics dichotomy: The idea that law and politics must remain separate and independent. The justices must decide cases by neutrally applying the rule of law. If politics infects the Court and its decision making, then Court decisions are tainted. But as Feldman’s insightful book shows, law and politics are forever connected in judicial interpretation and decision making. Pack the Court! insists that court packing is not the threat to the Supreme Court’s institutional legitimacy that many fear.

Temple University Press podcast host Sam Cohn spoke with Stephen Feldman about his new book and expanding the Supreme Court.

What will work eventually look like?

This week in North Philly Notes, we focus on our new and forthcoming Labor Studies titles in honor of Labor Day.

 Workforce Development 

The Many Futures of Work reframes the conversation about contemporary workplace experience by providing both “top down” and “bottom up” analyses.  

America in the 20thcentury

Becoming Entitled examines Americans’ shift in thinking about government social insurance programs during the Great Depression.

Communists and Community shows what role Communists played in the advancement of social democracy. 

Elaine Black Yoneda (forthcoming) presents a critical biography of the Jewish labor activist and feminist pioneer. 

Industrial histories

“A Road to Peace and Freedom recounts the history of the International Workers Order.

From Collective Bargaining to Collective Begging analyzes the expansion and restriction of collective bargaining rights for public employees.

Social justice and social welfare 

Motherlands challenges preconceived notions of the states that support working mothers. 

Labor economics 

Daily Labors and its examination of Black and Latino day laborers’ experience on an NYC street corner.

Sociology of work 

A Collective Pursuit argues that teachers’ unions are working in community to reinvigorate the collective pursuit of reforms beneficial to both educators and public education.

Policing in Natural Disasters shows how disaster work impacts law enforcement officers and first responders.

Making Their Days Happen (forthcoming) explores the complexities of the interpersonal dynamics and policy implications affecting personal assistance service consumers and providers.

For all of our Labor Studies

The Top Five Reasons to Pack the Supreme Court

This week in North Philly Notes, Stephen Feldman, author of Pack the Court! explains why Democrats should expand the number of Supreme Court justices.

Democrats should pack the Supreme Court if and when they have the opportunity. Yet, many object to court packing, arguing that it would destroy the legitimacy of the Supreme Court as a judicial institution. According to this view, the Court’s legitimacy is based on a law-politics dichotomy: The idea that law and politics must remain separate and independent. The justices must decide cases by neutrally applying the rule of law. If politics infect the Court and its decision making, then Court decisions are tainted.

Although many Republicans and Democrats share this view of the Court, it is seriously mistaken. Here, then, are five reasons to support court packing.

1. History of the Court’s Size. History reveals that Congress has repeatedly changed the number of justices based partly on political grounds; seven times by express statute. The Court has fluctuated between a minimum of six and a maximum of ten seats. Nothing in the Constitution precludes Congress from changing the Court’s size. From 1861 to 1869, for instance, politically driven Congresses changed the number of authorized Court seats from nine to ten to seven to nine. Most recently, for more than a year from February 2016 to April 2017, Mitch McConnell and a Republican-controlled Senate Judiciary Committee de facto reduced the Court to eight justices when they refused to open confirmation hearings for Democratic President Barack Obama’s nominee Merrick Garland.

2. History of the Appointment and Confirmation Processes. Despite the usual insistence that politics must be irrelevant to the Court’s business, presidents choose and congresses typically confirm (or reject) Supreme Court nominees based heavily on political considerations. Contrary to conservative claims that Democrats politicized and ruined the confirmation process in 1987, when they refused to confirm Robert Bork, presidents starting with George Washington have seen Congress shoot down their nominees for political reasons. Throughout American history, nearly one-fourth of the Supreme Court nominees have failed.

3. Analytical Argument Against the Law-Politics Dichotomy—Understanding the Law-Politics Dynamic. The law-politics dichotomy is a myth, propagated over the years for professional and political reasons. Contrary to this myth, law and politics dynamically interact in Supreme Court decision making. Law is neither the handmaiden of politics nor mere window-dressing, hiding political machinations. But law should never be understood as being separate and independent from politics, at least in Supreme Court decision making. In most cases, the justices sincerely interpret the relevant legal texts—the Constitution, statutes, executive orders, and so on—but interpretation is never mechanical. The justices’ political ideologies always influence their textual interpretations, so law and politics always intertwine in the adjudicative process. Politics, in other words, shapes the justices’ interpretive conclusions even though the justices focus on the law. Unsurprisingly, then, the justices’ legal interpretations and judicial conclusions ordinarily coincide with their respective political preferences.

If the Court decides cases pursuant to a law-politics dynamic—and the law-politics dichotomy is a myth—then the primary criticism of court-packing vanishes. If Supreme Court decision making is not and never has been apolitical, then court-packing cannot undermine the legitimacy of the Supreme Court as an apolitical institution. Court-packing cannot infect the Court with politics because the law-politics dynamic is already (and always) inherent in legal interpretation and Supreme Court adjudication.

4. Politics of the Roberts Court. Despite claiming to follow the rule of law, the Roberts Court has consistently decided cases in accord with a conservative political agenda. Corporations and the wealthy usually win; the poor might not even get into court. Employers win; unions and employees lose. Whites win; people of color lose. Men win; women lose. Christians win; non-Christians lose. Republicans with entrenched political power win; Democratic voters lose. Gun owners win; everybody else loses.

If the Democrats were to enact progressive legislation—for example, statutes restoring and fortifying voting rights, creating universal health care, strengthening environmental protections and fighting climate change, restricting gun ownership, and protecting documented and undocumented immigrants—the Roberts Court, with its current personnel, would likely construct constitutional barriers to weaken or invalidate such laws.

5. Public Support for the Court. Would court packing cause many people to lose faith in the Court’s authority? The question here is not how the Court actually decides cases, but rather how the public perceives the Court. Nevertheless, political science studies suggest that the Democrats should go ahead and pack the Court. The public’s diffuse support for the Court is resilient, sustained by “a reservoir of favorable attitudes or good will.” Even when the Court issues a decision contrary to an individual’s personal views, that individual is unlikely to lose faith in the Court. If anything, when news of Court activities draws an individual’s attention, then that attention (to the Court) will likely reinforce the individual’s positive views of the institution. In a sense, the more one knows about the Court, the more one is likely to find its decisions legitimate (the opposite is true for Congress). In fact, many Americans understand that Supreme Court decision making entails a combination of law and politics—the law-politics dynamic. The people’s support for and loyalty to the Court does not depend on the myth of the law-politics dichotomy. To the extent that individual views of the Court’s legitimacy might change in response to a court-packing plan, partisan shifts would likely cancel each other out.

In conclusion, the potential for court packing is baked into the checks and balances of our tripartite national government. As history demonstrates, the Constitution grants Congress and the president control over the size of the Court as well as the nomination and confirmation processes. Therefore, at any particular time, politics determines whether court packing is possible and appropriate. When the time is right, as it is today, then a court-packing proposal would likely reinforce rather than weaken the Court’s legitimacy.

Temple University Press’s Annual Holiday Give and Get

This week in North Philly Notes, we cap off this unusual year with the staff at Temple University Press suggesting the Temple University Press books they would give along with some non-Temple University Press titles they hope to receive and read this holiday season. 

We wish everyone a happy and healthy holiday season!

Mary Rose Muccie, Director

Give: This year, in hope for and anticipation of a time when we can once again roam freely, I’m giving City in a Park: A History of Philadelphia’s Fairmount Park System, by James McClelland and Lynn Miller. Pick an area of the park, learn its history, and set out to experience the beauty of a big part of what makes Philadelphia special.
Get: When I saw Black Hole Survival Guide, by Janna Levin, on one of those “best books of 2020” lists I was immediately intrigued. Rather than a how-to for 2020 and 2021, it’s a fun and accessible description of what black holes are and what they mean for the universe. 

Karen Baker, Associate Director/Financial Manager

Give: I would like to give Philadelphia: Finding the Hidden City by Joseph E.B. Elliott, Nathaniel Popkin, and Peter Woodall because my son-in-law has discovered their website and is very interested in touring all the hidden locations in the book.
Get: I would like to receive The Last Black Unicorn by Tiffany Haddish because I love her humor and find her story to be inspiring.

Aaron Javsicas, Editor-in-Chief

Give: Philadelphians know our city boasts a number of French influences in our arts and built environment, but Salut! France Meets Philadelphia will tell you the full story, from early Huguenot settlers seeking religious freedom, to the Ben Franklin Parkway, to Philly’s French restaurant scene which has been among the best in the country. It’s also an absolutely gorgeous book filled with beautiful color illustrations, making Salut! a can’t-miss gift. 

Get: I’m curious about The Blind Light, but Stuart Evers. A novel of Cold War fear, paranoia, and class inequality in England, it might not sound like the uplifting escape one would wish for this year. But as the Times review points out, historical fiction can offer a reorienting perspective on our current struggles, and it’s — what, reassuring? bracing? — to recall that 2020 is certainly not the first time we’ve stared global destruction in the eye. 

Shaun Vigil, Editor

Give: Chia Youyee Vang and Pao Yang’s Prisoner of Wars : A Hmong Fighter Pilot’s Story of Escaping Death and Confronting Life is at the top of my “to give” list. A book that is truly vital, Prisoner of Wars is both accessible and essential to the wide reading public outside of scholarly writing, making every single page count in telling its deeply impactful oral history.

Get: I am hoping to see Hannah Eaton’s most recent graphic novel, Blackwood, under my tree this season. Eaton’s debut graphic novel, On Monsters, was equal parts hauntingly human and fantastic, so I can’t wait to see how her second work utilizes her singular illustration style in a new story.

Ryan Mulligan, Editor

Give: The Defender: The Battle to Protect the Rights of the Accused in Philadelphia tells the story of one of the country’s leading public defender offices. Unlike most states, Pennsylvania leaves it to its counties to fund its public defender offices, leaving Philadelphia’s public defenders to fight for the life of their office alongside the lives of its clients, achieving breakthroughs on both fronts that pioneered the future of justice reform across the country. It’s perfect for readers interested in how law and order has arrived at this point, what we have overcome, and what remains.
Get: Thanks to the dystopian overtones of the past year and the trouble of making meaning and enjoyment after so many sources of both have been shut off have had me thinking often of the traveling artists of Emily St. John Mandel’s post-apocalyptic novel Station Eleven. She has a new novel, titled The Glass Hotel, that I’d love to check out.

Kate Nichols, Art Manager

GiveModern Mobility Aloft: Elevated Highways, Architecture, and Urban Change in Pre-Interstate America by Amy D. Finstein. Having formerly lived in both New York and Boston for extended periods of time, I loved seeing the photographs and reading the text as I worked on the book.
Get: The Overstory by Richard Powers. (Although in full disclosure, this has been in my possession for some time. My reduced attention span over the last few months has me reading mystery thrillers. Any recommendations….?)

Ashley Petrucci, Senior Production Editor

Give: Health the Commonwealth because it is historical but relevant to the current moment.
Get: Henry James Turn of the Screw because I watched The Haunting of Bly Manor and liked it.

Ann-Marie Anderson, Marketing Director

Give: I’m chocolate, you’re vanilla.  I’m black and you’re white.  As children, we learn distinctions based upon what we look like. As adults, we sometimes act upon those distinctions subconsciously and judge people, even children, by what they look like. To help parents, teachers, or anyone interacting with black children, I’d give Do Right By Me, a book that reads like a primer on raising black children in white spaces.  The resources the authors provide in their thoughtful exchange will guide in the development of potentially healthy life outcomes and provide some necessary tools to help black children and their caretakers navigate this biased society.
Get: I hope someone gives me Searching for Sylvie Lee by Jean Kwok. I’ve heard it’s a gripping portrait of a Chinese immigrant family, filled with mystery and secrets—just what I need to fill the time. 

Nikki Gallant, Marketing Assistant

Give: Clowns to the Left of Me, Jokers to the Right, by Michael Smerconish, because my family is a huge fan of CNN. When I found out Michael Smerconish had a book with the press, I immediately ran to my dad to tell him. He is also from Doylestown, PA, which is a short drive away from my hometown.
Get: I love classic British Literature and believe that you can never go wrong with a classic for the holidays. I want to read Emma, Sense and Sensibility, Wuthering Heights and Mansfield Park. I would also love the rest of Patti Smith’s books that I have not read. 

Irene Imperio, Advertising and Promotions Manager

Give: With lively photos and club histories, Life, Liberty, and the Mummers feels like the perfect gift this year for transplanted Philadelphians and for those missing the parade this year. 
Get: I’m hoping to get Amboy: Recipes from the Filipino-American Dream to supplement my mom’s “add a little ___ if you like” or “just add ____ to taste!”

Gary Kramer, Publicity Manager

Give: Given that we all want to getaway this year, Getting Away from It All, Karen Stein’s book about vacations and identity seems most appropriate. It explains how we are who we want to be when we don’t have much responsibility other than to ourselves. And that can’t be any timelier in these stressful days.

Get: I just received Bryan Washington’s novel, Memorial, which I am planning to read over break having enjoyed his short story collection Lot earlier this year. So if someone wants to get me Swimming in the Dark, by Thomasz Jedrowski, I’m anxious to read it next!

Teachers’ unions strike back

This week in North Philly Notes, Lesley Lavery, author of A Collective Pursuit, writes about teachers’ unions’ response to COVID, arguing that despite decades of legal and political effort, teachers’ collective efforts will save lives.

Teachers in Detroit just authorized the first potential “safety strike.” Three week ago, the president of the American Federation of Teachers, the nation’s second-largest teachers’ union, told members that the union’s leadership would support “safety strikes” if health precautions are not met amid calls for schools to reopen as coronavirus cases surge. This declaration of support is striking, not least because it pushes longstanding legal boundaries.

Under current federal statutes, teachers must still report to work even if they believe that local officials have not sufficiently prioritized their health and safety, along with that of their students. The degradation of a teacher’s right to demand such basic and fundamental working conditions is the result of a decades-long effort by education reformers to isolate teachers from their unions—a movement that has praised the individual actions of educators while disparaging their collective calls for higher pay and better working conditions.

An assault on public sector unions began in earnest in 1979 with a unanimous Supreme Court ruling in Abood v. Detroit Federation of Teachers. Attempting to strike a delicate balance between government and individual interests, in Abood the court established a nearly 40 year precedent in teachers’ unions’ ability to collectively bargain by noting a distinction between the unions’ economic and political work.

Following the Abood ruling, teachers and other public employees could not be compelled to join unions so long as they paid the documented costs of contract administration and negotiation. Post-Abood, unions could capture a “fair-share” fee from all potential members but must refrain from spending agency fees on political activities. While in theory this appeased both individuals whose political interests ran counter to their unions’ and unions who might otherwise face a “collective action problem of nightmarish proportions,” in practice, the line between bargaining interests and political interests was difficult to discern, enforce or object to.

Collective_PursuitIn April 2013, after nearly four decades of relative labor peace, ten public school teachers in California, backed by the right-leaning Center for Individual Rights, took a straight shot at the Abood precedent. In Friedrichs v. California Teachers Association, Rebecca Freidrichs and nine California colleagues argued that attempts to separate bargaining from unions’ political actions were moot because bargaining covered so many fundamentally political topics. Like Abood, Freidrichs eventually made its way to the Supreme Court. There, in 2016, the attack on unions stalled following the death of Justice Antonin Scalia. But the reprieve was temporary. On June 27, 2018, a final, decisive blow arrived via Janus vs. American Federation of State, County, and Municipal Employees.  

By February 2018, eulogies for many local teachers’ unions had already been written. But mere months before Janus transformed all states to right-to-work states and those eulogies could be delivered, West Virginia teachers from every one of the state’s fifty-five counties walked out of their classrooms to demand higher wages and showcase their concern regarding a bill to lower teacher-certification standards. West Virginia educators’ activism inspired similar actions in Oklahoma, Arizona, Kentucky, North Carolina, Tennessee and Colorado. School bus drivers then walked off the job in Georgia.

By the end of the year, the AFSCME, Janus’ direct adversary, reported seven new dues-paying-members for each additional non-paying free-rider (a total increase of 22,000 newly organized workers). The AFT added 88,500 members. And though they expected dire defection rates, the National Education Association gained 13,935 members.

The Janus ruling meant to cut unions off at the knees, but as we watch the reopening debate play out right now, it is clear that “reformers’” wins weren’t enough to mollify teachers’ desire to be heard or sever the relationships they’ve been building with their communities. By declaring it too difficult to determine the line between teachers’ economic and political interests, the courts have inadvertently emboldened a generation of educators to take a stand in the debate of their life (pun intended).

Over the summer, as part of an ongoing 12-state 100+ district study on teachers’ unions’ response to COVID-19, my colleague Sara Dahill-Brown (Wake Forest University) and I have interviewed nearly 30 teachers’ union representatives from urban, rural and suburban districts about their involvement in COVID decision-making and planning. Though comfort with plans to “reopen” schools appears to vary based on population density, demographics, decision-making processes (or lack thereof), and the status of school infrastructure, across the country the teachers we’ve interviewed are increasingly desperate for local, state and federal officials to heed their calls to reopen safely.

I spoke with a union leader from a right-to-work district a few weeks ago. After years of struggling to recruit new union members, she and others we spoke with described rapid increases in unsolicited membership. Teachers are asking if they can go on strike. In many locales, they can’t. But they can protest. They can picket. They can stand outside six feet apart with a sign and a red t-shirt on. And they’ve been working diligently for the past several years to ensure that their communities understand teachers’ and students’ shared interests.

Now, with their lives on the line and individual social media posts, letters to administrators and elected officials, and op-eds in local newspapers unanswered, we’ve left teachers with little recourse. Despite decades of legal and political effort, COVID shows that “reformers” have failed to separate teachers from their unions. The union is the only voice that can aggregate and elevate educators’ anxieties and fears and force all of us to take stock of our duties and obligation to children and public education. We must get behind the nation’s teachers and face “COVID-19, a sagging economy and calls for social justice” head on, together.

 

A Feminist Post-Liberal Future

This week in North Philly Notes, Judith Baer, author of Feminist Post-Liberalism,  writes about how feminists and liberals can correct each other’s characteristic errors.

Basketball great Kobe Bryant died in a helicopter crash on January 26, 2020. Early media coverage consisted mostly of eulogies. They stressed his five NBA championships with the Los Angeles Lakers, his two Olympic gold medals, and his commitment to equality in race relations and women’s sports. These stories, like the one in my local paper, ignored the worst incident on his record: an accusation of rape in 2003. (Criminal charges were dropped; a civil suit was settled out of court.)

Once this information emerged in postmortem coverage, all hell broke loose on social media. Fans accused critical commentators of bad taste and cruelty to the families of the crash victims. Bryant’s defenders also pointed out that he had made restitution and apologized, urging critics to put the episode behind them. Some, assuming without evidence that all women who criticized Bryant were white, accused them of ignoring the fact that black men are more likely than white men to be punished for rape and the long history of white women’s false accusations of black men. These commentators urged the critics to confront their own racism.

What does all this have to do with feminist post-liberalism? In my book, I suggest how these two belief systems can correct each other’s characteristic errors and how feminist ideas can break the connection between liberalism and male supremacy. The issues I explore include mass incarceration and cultural appropriation, both of which are relevant to the Kobe Bryant discussion.

Feminist Post-LiberalismA 40-year “war on crime” that began when Richard Nixon became president gave the United States the highest incarceration rate in the world. (We used to be third, after the USSR and the Union of South Africa.) This mass incarceration, which many liberals supported,  disproportionately harms African Americans. So many lose the right to vote that a “new Jim Crow” negates the effects of the Voting Rights Act of 1965. Twenty-first century liberals want to end mass incarceration. But they fail to ask how fewer and shorter sentences might affect victims of sexual assault and domestic violence. Most rapists, whatever their race, get away with it. Feminism gets lost in the dialogue.

Cultural appropriation occurs when writers or artists use material from a culture not their own, especially without understanding or respect. Those who advised Kobe Bryant’s critics to face their own racism echoed the accusations an argument that goes back at least to 1932, when the poet Langston Hughes criticized the children’s book Little Black Sambo. Feminist critics of male authors have done likewise. Critics of Jeanine Cummins’s novel American Dirt have accused the African American author of appropriating the experience of undocumented Mexican immigrants—accused her so angrily that the publisher canceled Cummins’s promotion tour in fear for her safety.

Commentators who have jumped on the cultural appropriation bandwagon have abandoned a central tenet of liberalism: its commitment to reason. Passion does not turn an opinion into a fact or a difference of degree into a difference of kind. To lose these distinctions frustrates rational discourse.

Feminism and liberalism are distinct but tangled philosophies. Modern Western feminism developed logically and historically from liberalism. A belief system that replaced faith with reason, divine right with representative government, and hierarchy with equality invited critical scrutiny of male supremacy. Defenses of women’s rights appeared in Great Britain, France, and North America during and after the democratic revolutions in these countries. So did anti-feminist tracts. Jean-Jacques Rousseau found gender equality incompatible with motherhood. Some anti-revolutionary Frenchwomen opposed equality on religious grounds. French radicals rejected feminism because they considered a decent standard of living more important than legal rights. All these arguments existed by 1800 and still thrive today. Conservative critiques of feminism continue to emphasize religion and the family. Radical critiques insist that class and/or race is the primary, and gender a secondary, determinant of inequality.

Feminism and liberalism are compatible belief systems, but not all feminists are liberals and not all liberals are feminists. Both belief systems are complex and diverse. Feminists do not all think alike. Neither do all liberals. Differences of opinion and emphasis exist within both groups, as they do among conservatives and radicals. I devoted much time and space to distinguishing among various types of feminism and liberalism.

My first draft envisioned a feminist post-liberalism free of male supremacy and misogyny. I argued that the two sets of theories could correct characteristic errors, like some liberals’ emphasis on human rights at the expense of human needs and some feminists’ acceptance of gender roles. I also discussed characteristic errors that feminist and liberals shared, like a predisposition to guilt. My optimistic tone jarred with reality in the form of the 2016 election, which decisively rebuffed both feminism and liberalism.

A progressive feminist woman lost the presidency to a billionaire outsider. A coalition of conservatives, capitalists, and fundamentalist Christians was born. Enough people in enough states preferred a misogynist to a woman and a political novice to a seasoned legislator and diplomat. Enough people in enough states sat out the election to give Donald Trump the victory. Enough voters wanted change, and did not see a woman insider as an agent of change. Instead, we got reactionary change. Conservative ideas dominate the executive and judicial branches of the federal government. Feminists and liberals have a great deal of work to do.

All-Star Baseball Books to celebrate the All-Star Break

This week in North Philly Notes, we highlight nine of Temple University Press’s All-Star baseball books to celebrate baseball’s All-Star Break.

The Whiz Kids and the 1950 Pennantby Robin Roberts and C. Paul Rogers

The 1950 Phillies unexpectedly captured the hearts and imaginations of Philadelphians. A young upstart team—in fact, the youngest major league baseball team ever fielded—they capped a Cinderella season by winning the pennant from the heavily favored Brooklyn Dodgers in Ebbets Field on the last day of the season. It was the first National League pennant for the team since 1915. With that dramatic victory the 1950 Phillies went into the history books, known forever as the Whiz Kids.

This inspiring era in Phillies history comes alive with the personal reflections of Robin Roberts, a Hall of Famer and arguably the best right-handed pitcher in Phillies history.  Rich with anecdotes never before published from players like Hall-of-Famer Richie Ashburn, Bubba Church, Andy Seminick, Curt Simmons, Del Ennis, Dick Sisler, Russ Meyer, and many others, this book relives the success of the Whiz Kids in all their glory.

Bill Giles and Baseballby John B. Lord

Bill Giles oversaw one of the greatest eras of winning that the Philadelphia Phillies ever enjoyed and helped guide major league baseball through the most turbulent era in its history. In Bill Giles and Baseball, John Lord deftly chronicles Giles’ remarkable career—which includes 44 years with the Phillies—to provide an insider’s view of the business of the sport. He addresses the often controversial, sometimes ill-advised, moves by baseball’s hierarchy that have nonetheless propelled the game to unimagined economic growth.

The Phillies Reader Edited by Richard Orodenker

The Phillies Reader features essays on the athletic achievements of such legendary players as Chuck Klein, Richie Ashburn, Dick Allen, and Mike Schmidt; the political turmoil surrounding the “ok” from manager Ben Chapman to “ride” Jackie Robinson about the color of his skin; the bizarre shooting of Eddie Waitkus; the heroics of the Whiz Kids; the heartbreak of ’64; and the occasional triumphs and frequent travails of controversial managers Gene Mauch, Frank Lucchesi, and Danny Ozark. It asks why fans boo great players such as Del Ennis, but forgave Pat Burrell for his horrendous 2003 slump.

Featuring essays by Red Smith, Pete Dexter, Roger Angell, and James Michener, among others, The Phillies Reader presents a compendium of Phillies literature that reveals what it is that makes legends.

Dominican Baseball: New Pride, Old Prejudice by Alan Klein

Outstanding Book Award from the North American Society for the Sociology of Sport, 2015

In his incisive and engaging book, Dominican Baseball, Alan Klein examines the history of MLB’s presence and influence in the Dominican Republic, the development of the booming industry and academies, and the dependence on Dominican player developers, known as buscones. He also addresses issues of identity fraud and the use of performance-enhancing drugs as hopefuls seek to play professionally.

Dominican Baseball charts the trajectory of the economic flows of this transnational exchange, and the pride Dominicans feel in their growing influence in the sport. Klein also uncovers the prejudice that prompts MLB to diminish Dominican claims on legitimacy. This sharp, smartly argued book deftly chronicles the uneasy and often contested relations of the contemporary Dominican game and industry.

Will Big League Baseball Survive?: Globalization, the End of Television, Youth Sports, and the Future of Major League Baseball by Lincoln A. Mitchell

Major League Baseball is a beloved American institution that has been a product of the economic, social, and media structures that have evolved in the United States over the last century. In his shrewd analysis, Will Big League Baseball Survive?, Lincoln Mitchell asks whether the sport will continue in its current form as a huge, lucrative global business that offers a monopoly in North America—and whether those structures are sustainable.

Mitchell places baseball in the context of the larger, evolving American and global entertainment sector. He examines how both changes directly related to baseball—including youth sports and the increased globalization of the game—as well as broader societal trends such as developments in media consumption and celebrity culture will impact big league baseball over the next few decades.

Suicide Squeeze: Taylor Hooton, Rob Garibaldi, and the Fight against Teenage Steroid Abuseby William C. Kashatus

In his urgent book Suicide Squeeze, William Kashatus chronicles the experiences of Taylor Hooton and Rob Garibaldi, two promising high school baseball players who abused anabolic steroids (APEDs) in the hopes of attracting professional scouts and Division I recruiters. However, as a result of their steroid abuse, they ended up taking their own lives.

In Suicide Squeeze—named for the high-risk play in baseball to steal home—Kashatus identifies the symptoms and dangers of steroid use among teens. Using archival research and interviews with the Hooton and Garibaldi families, he explores the lives and deaths of these two troubled young men, the impact of their suicides on Major League Baseball, and the ongoing fight against adolescent APED use that their parents have been waging.

A passionate appeal to prevent additional senseless deaths by athletes, Suicide Squeeze makes an important contribution to debates on youth and sports and on public policy.

Legal Bases: Baseball and the Law, by Roger I. Abrams

In Legal Bases, Roger I. Abrams has assembled an all-star baseball law team whose stories illuminate the sometimes uproarious, sometimes ignominious relationship between law and baseball that has made the business of baseball a truly American institution. Along the way, Abrams also examines such issues as drug use and gambling, enforcement of contracts, and the rights of owners and managers. He does not limit himself to the history of baseball and the legal process but also speculates on the implications of the 1996 collective bargaining agreement and those other issues—like intellectual property, eminent domain, and gender equity—that may provide the all-star baseball law stories of the future.

Biz Mackey, a Giant behind the Plate: The Story of the Negro League Star and Hall of Fame Catcherby Rich Westcott

National Baseball Hall of Fame catcher James Raleigh “Biz” Mackey’s professional career spanned nearly three decades in the Negro Leagues and elsewhere. He distinguished himself as a defensive catcher who also had an impressive batting average and later worked as a manager of the Newark Eagles and the Baltimore Elite Giants.

Using archival materials and interviews with former Negro League players, baseball historian Rich Westcott chronicles the catcher’s life and remarkable career in Biz Mackey as well as providing an in-depth look at Philadelphia Negro League history. Mackey also mentored famed catcher Roy Campanella and had an unlikely role in the story of baseball’s development in Japan.

Rookies of the Year by Bob Bloss

Baseball players only have one opportunity to be named “Rookie of the Year” by the Baseball Writers Association of America. Although some recipients of this prestigious award such as Orlando Cepeda have become league MVPs, or Hall of Fame honorees, others, like Joe Charboneau, failed to live up to their initial promise. Rookies of the Year profiles 116 winners-from Jackie Robinson (the first Rookie of the Year in 1947), to Rod Carew, Derek Jeter, and the 2004 honorees. Each player’s initial major league season and subsequent career achievements are included. Featuring interviews with dozens of baseball stars, this is the most comprehensive book ever written on Rookies of the Year. It provides indispensable information on some of baseball’s greatest athletes.

Celebrating Temple University Press Books at the Urban Affairs Association conference

This week in North Philly Notes, we spotlight our new Urban Studies titles, which will be on display at the Urban Affairs Association conference, April 24-27 in Los Angeles, CA.

On April 25, at 3:30 pm, Latino Mayors, edited by Marion Orr and Domingo Morel, will be the subject of a panel discussion.

On April 26, at 2:05 pm, Alan Curtis, co-editor of Healing Our Divided Society, will participate in a presentation entitled, The Kerner Commission 50 Years Later

Temple University Press titles in Urban Studies for 2018-2019

Architectures of Revolt: The Cinematic City circa 1968, edited by Mark Shiel
Coinciding with the fiftieth anniversary of the worldwide mass protest movements of 1968—against war, imperialism, racism, poverty, misogyny, and homophobia—the exciting anthology Architectures of Revolt explores the degree to which the real events of political revolt in the urban landscape in 1968 drove change in the attitudes and practices of filmmakers and architects alike.

Constructing the Patriarchal City: Gender and the Built Environments of London, Dublin, Toronto, and Chicago, 1870s into the 1940sby Maureen A. Flanagan
Constructing the Patriarchal City compares the ideas and activities of men and women in four English-speaking cities that shared similar ideological, professional, and political contexts. Historian Maureen Flanagan investigates how ideas about gender shaped
the patriarchal city as men used their expertise in architecture, engineering, and planning to fashion a built environment for male economic enterprise and to confine women in the private home. Women consistently challenged men to produce a more
equitable social infrastructure that included housing that would keep people inside the city, public toilets for women as well as men, housing for single, working women, and public spaces that were open and safe for all residents.

Contested Image: Defining Philadelphia for the Twenty-First Century, by Laura M. Holzman
Laura Holzman investigates the negotiations and spirited debates that affected the city of Philadelphia’s identity and its public image. She considers how the region’s cultural resources reshaped the city’s reputation as well as delves into discussions about official efforts to boost local spirit. In tracking these “contested images,” Holzman illuminates the messy process of public envisioning of place and the ways in which public dialogue informs public meaning of both cities themselves and the objects of urban identity.

Courting the Community: Legitimacy and Punishment in a Community Court, by
Christine Zozula
Courting the Community is a fascinating ethnography that goes behind the scenes to explore how quality-of-life discourses are translated into court practices that marry therapeutic and rehabilitative ideas. Christine Zozula shows how residents and businesses participate in meting out justice—such as through community service, treatment, or other sanctions—making it more emotional, less detached, and more legitimate in the eyes of stakeholders. She also examines both “impact panels,” in which offenders, residents, and business owners meet to discuss how quality-of-life crimes negatively impact the neighborhood, as well as strategic neighborhood outreach efforts to update residents on cases and gauge their concerns.

Daily Labors: Marketing Identity and Bodies on a New York City Street Corner, by Carolyn Pinedo-Turnovsky
Daily Labors reveals how ideologies about race, gender, nation, and legal status operate on the corner and the vulnerabilities, discrimination, and exploitation workers face in this labor market. Pinedo-Turnovsky shows how workers market themselves to conform to employers’ preconceptions of a “good worker” and how this performance paradoxically leads to a more precarious workplace experience. Ultimately, she sheds light on belonging, community, and what a “good day laborer” for these workers really is.

Democratizing Urban Development: Community Organizations for Housing across the United States and Brazil, by Maureen M. Donaghy
Rising housing costs put secure and decent housing in central urban neighborhoods in peril. How do civil society organizations (CSOs) effectively demand accountability from the state to address the needs of low-income residents? In her groundbreaking book, Democratizing Urban Development, Maureen Donaghy charts the constraints and potential opportunities facing these community organizations. She assesses the various strategies CSOs engage to influence officials and ensure access to affordable housing through policies, programs, and institutions.

Ecohumanism and the Ecological Culture: The Educational Legacy of Lewis
Mumford and Ian McHarg, by William J. Cohen, With a Foreword by
Frederick R. Steiner
Lewis Mumford, one of the most respected public intellectuals of the twentieth century, speaking at a conference on the future environments of North America, said, “In order to
secure human survival we must transition from a technological culture to an ecological culture.” In Ecohumanism and the Ecological Culture, William Cohen shows how  Mumford’s conception of an educational philosophy was enacted by Mumford’s
mentee, Ian McHarg, the renowned landscape architect and regional planner at the University of Pennsylvania. McHarg advanced a new way to achieve an ecological culture through an educational curriculum based on fusing ecohumanism to the planning and design disciplines.

Healing Our Divided Society: Investing in America Fifty Years after the Kerner Report, edited by Fred Harris and Alan Curtis
Outstanding Academic Title, Choice, 2018

In Healing Our Divided Society, Fred Harris, the last surviving member of the Kerner Commission, along with Eisenhower Foundation CEO Alan Curtis, re-examine fifty years later the work still necessary towards the goals set forth in The Kerner Report. This timely volume unites the interests of minorities and white working- and middle-class Americans to propose a strategy to reduce poverty, inequality, and racial injustice. Reflecting on America’s urban climate today, this new report sets forth evidence-based
policies concerning employment, education, housing, neighborhood development, and criminal justice based on what has been proven to work—and not work.

Latino Mayors:  Political Change in the Postindustrial City, edited by Marion Orr and Domingo Morel
As recently as the early 1960s, Latinos were almost totally excluded from city politics. This makes the rise of Latino mayors in the past three decades a remarkable American story—one that explains ethnic succession, changing urban demography, and political contexts. The vibrant collection Latino Mayors features case studies of eleven Latino mayors in six American cities: San Antonio, Los Angeles, Denver, Hartford, Miami, and Providence.

Painting Publics: Transnational Legal Graffiti Scenes as Spaces for Encounter, by
Caitlin Frances Bruce
Public art is a form of communication that enables spaces for encounters across difference. These encounters may be routine, repeated, or rare, but all take place in urban spaces infused with emotion, creativity, and experimentation. In Painting Publics,
Caitlin Bruce explores how various legal graffiti scenes across the United States, Mexico, and Europe provide diverse ways for artists to navigate their changing relationships with publics, institutions, and commercial entities.

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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