A look at the political identities and social attitudes of young evangelicals

This week in North Philly Notes, Jeremiah Castle, author of Rock of Ages, asks: Are young evangelicals becoming more liberal? (This blog is re-posted with permission from Religion in Public.)

For the past several decades, evangelical Christians have been one of the strongest and most reliable Republican constituencies. Massive numbers of evangelicals mobilized into politics in the 1970s and 1980s, concerned over issues like abortion, gay marriage, and religion’s declining role in the public sphere. Prominent evangelical elites including Jerry Falwell and Pat Robertson fervently endorsed the GOP, and evangelical organizations like the Moral Majority, the Christian Coalition, and Focus on the Family further linked evangelicalism to conservative politics. On the partisan side of the equation, prominent Republican candidates like Ronald Reagan and George W. Bush spoke the language of evangelical Protestantism and made a point of reaching out to evangelical voters. Occasionally, the religious and political spheres even fused, as in the case of religious broadcaster Pat Robertson’s challenge to George H.W. Bush in the 1988 Republican Party primaries.

However, over the course of the last decade or so a number of political observers have speculated that the youngest generation of evangelical Christians, those belonging to the Millennial generation, are more liberal than their Baby Boomer and Gen-X predecessors.  Commentators have suggested several types of change: young evangelicals may be moving left on cultural issues or abandoning the culture wars, they may be increasingly concerned about issues like the environment and poverty, and they may even vote for Democratic candidates. Given that evangelicals constitute roughly one-fifth of the voting population, if young evangelicals are becoming more liberal in any of these ways, it would have the potential to shake the bedrock of American party politics for the next several decades.

Academic researchers have only just begun to examine whether or not these observers are correct. In a short research note, Buster Smith and Byron Johnson find that young evangelicals are similar to their older counterparts on issues including abortion, stem cell research, marijuana use, welfare spending, healthcare, and the Iraq war. Only on the environment did they find substantial evidence of liberalization among young evangelicals. However, their data are only cross-sectional, and therefore they cannot help distinguish between age, period, and cohort effects. Justin Farrell shows that young evangelicals are more liberal on same-sex marriage, premarital sex, cohabitating, and pornography. However, he finds that higher education, delayed marriage, and shifts in views on moral authority are the likely causes, rather than changes in religion itself. Most recently, Mikael Pelz and Corwin Smidt find evidence of consistency in young evangelicals’ political identities and social issue attitudes. However, they also uncover some evidence of their change in attitudes on non-cultural issues including the environment, foreign policy, and government aid to the needy. While these works serve an important purpose in beginning to test the empirical claims being made in this debate, together this scholarship highlights the need for a more unified theory of public opinion among evangelicals that can help explain why we see change in some instances and continued conservatism in others.

Rock of Ages_smIn my book Rock of Ages: Subcultural Religious Identity and Public Opinion among Young Evangelicals, forthcoming from Temple Press in August 2019 in the Religious Engagement in Democratic Politics series, I develop just such a theory. Drawing on John Zaller’s work in The Nature and Origins of Mass Opinion, I argue that the evangelical tradition has the potential to impact public opinion among members by changing the underlying distribution of considerations on political issues. The evangelical subculture engages in several processes that might help it influence public opinion among adherents, including building and reinforcing evangelical identity, discrediting issue considerations from the secular culture, promoting its own distinctive values, and even delivering explicitly political messages.

However, evangelicalism is unlikely to impact all political attitudes equally. My Issue Hypothesis predicts that we are more likely to see stability in evangelical public opinion on topics or issues that are important to the evangelical subculture’s identity and distinctiveness. As I explain in the chapter, those issues include Republican Party identification, ideological conservatism, and opposition to cultural issues like abortion and same-sex marriage. My Commitment Hypothesis predicts that evangelicalism should exert a greater effect on those who are more engaged within the evangelical subculture (including those who attend church more often, pray more frequently, and self-report that religion is an important guiding factor in their daily lives).

The heart of the book provides a thorough investigation of public opinion among young evangelicals. Chapters 2 and 3 use nationally representative survey data to explore trends in public opinion among young evangelicals over time (including comparisons to both older evangelicals and non-evangelicals). I focus on numerous issues, including abortion, same-sex marriage, welfare, the environment, immigration, and foreign policy. One of the key findings from this section is the consistency of Republican party identification among young evangelicals. The figure below, created using General Social Survey data, shows that young evangelicals today are just as reliably Republican as they were in the 1980s and 1990s.

RoA Figure 2.1b July 2018 color

The remainder of the book provides a series of tests of the mechanisms behind my theory of public opinion. Chapter 4 provides a closer look at how evangelicalism influences public opinion, emphasizing how evangelicalism can impact issue considerations among adherents. Chapter 5 provides a more careful test of whether immersion in evangelical institutions causes opinion change, including the use of panel data. Finally, Chapter 6 explores political attitudes among the 12-15% of young evangelicals who do identify as politically liberal. The evangelical subculture’s conservatism on cultural issues appears to influence liberal evangelicals, too; liberal evangelicals remain more opposed to abortion and same-sex marriage compared to other young liberals. Overall, the results discussed in the book provide strong support for my theory of public opinion among young evangelicals.

In the Conclusion, I use the findings to speculate about the future of the evangelical-Republican coalition. The results suggest that young evangelicals may push the Republican Party to the left on a few issues, including same-sex marriage and possibly the environment. However, it is unlikely that young evangelicals will become a true “swing constituency.” Young evangelicals have been reliably Republican for many decades, and thanks in part to the intense socialization within the evangelical subculture documented in my book, that trend seems poised to continue for the foreseeable future.

 

Celebrating Pride

This week in North Philly Notes, we celebrate Pride month with a dozen Temple University Press’s LGBTQ titles.

City of Sisterly and Brotherly Loves: Lesbian and Gay Philadelphia, 1945-1972by Marc Stein

Marc Stein’s City of Sisterly and Brotherly Loves is refreshing for at least two reasons: it centers on a city that is not generally associated with a vibrant gay and lesbian culture, and it shows that a community was forming long before the Stonewall rebellion. In this lively and well received book, Marc Stein brings to life the neighborhood bars and clubs where people gathered and the political issues that rallied the community. He reminds us that Philadelphians were leaders in the national gay and lesbian movement and, in doing so, suggests that New York and San Francisco have for too long obscured the contributions of other cities to gay culture.

Civic Intimacies: Black Queer Improvisations on Citizenshipby Niels van Doorn

Because members of the Black queer community often exist outside conventional civic institutions, they must explore alternative intimacies to experience a sense of belonging. Civic Intimacies examines how—and to what extent—these different forms of intimacy catalyze the values, aspirations, and collective flourishing of Black queer denizens of Baltimore. Niels van Doorn draws on eighteen months of immersive ethnographic fieldwork for his innovative cross-disciplinary analysis of contemporary debates in political and cultural theory.

Deregulating Desire: Flight Attendant Activism, Family Politics, and Workplace Justice, by Ryan Patrick Murphy

In 1975, National Airlines was shut down for 127 days when flight attendants went on strike to protest long hours and low pay. Activists at National and many other U.S. airlines sought to win political power and material resources for people who live beyond the boundary of the traditional family. In Deregulating Desire, Ryan Patrick Murphy, a former flight attendant himself, chronicles the efforts of single women, unmarried parents, lesbians and gay men, as well as same-sex couples to make the airline industry a crucible for social change in the decades after 1970.

From Identity to Politics: The Lesbian and Gay Movements in the United Statesby Craig A. Rimmerman

Liberal democracy has provided a certain degree of lesbian and gay rights. But those rights, as we now know, are not unlimited, and they continue to be the focus of efforts by lesbian and gay movements in the United States to promote social change. In this compelling critique, Craig Rimmerman looks at the past, present, and future of the movements to analyze whether it is possible for them to link identity concerns with a progressive coalition for political, social, and gender change, one that take into account race, class, and gender inequalities. Enriched by eight years of interviews in Washington, D.C. and New York City, and by the author’s experience as a Capitol Hill staffer, From Identity to Politics will provoke discussion in classrooms and caucus rooms across the United States.

The Hirschfeld Archives: Violence, Death, and Modern Queer Culture, by Heike Bauer

Influential sexologist and activist Magnus Hirschfeld founded Berlin’s Institute of Sexual Sciences in 1919 as a home and workplace to study homosexual rights activism and support transgender people. It was destroyed by the Nazis in 1933. This episode in history prompted Heike Bauer to ask, Is violence an intrinsic part of modern queer culture? The Hirschfeld Archives answers this critical question by examining the violence that shaped queer existence in the first part of the twentieth century.

In a Queer Voice: Journeys of Resilience from Adolescence to Adulthood, by Michael Sadowski

Adolescence is a difficult time, but it can be particularly stressful for lesbian, gay, bisexual, transgender, and queer-identifying youth. In order to avoid harassment and rejection, many LGBTQ teens hide their identities from their families, peers, and even themselves. Educator Michael Sadowski deftly brings the voices of LGBTQ youth out into the open in his poignant and important book, In a Queer Voice. Drawing on two waves of interviews conducted six years apart, Sadowski chronicles how queer youth, who were often “silenced” in school and elsewhere, now can approach adulthood with a strong, queer voice.

Just Queer Folks: Gender and Sexuality in Rural Americaby Colin R. Johnson

Most studies of lesbian and gay history focus on urban environments. Yet gender and sexual diversity were anything but rare in nonmetropolitan areas in the first half of the twentieth century. Just Queer Folks explores the seldom-discussed history of same-sex intimacy and gender nonconformity in rural and small-town America during a period when the now familiar concepts of heterosexuality and homosexuality were just beginning to take shape. Eschewing the notion that identity is always the best measure of what can be known about gender and sexuality, Colin R. Johnson argues instead for a queer historicist approach. In so doing, he uncovers a startlingly unruly rural past in which small-town eccentrics, “mannish” farm women, and cross-dressing Civilian Conservation Corps enrollees were often just queer folks so far as their neighbors were concerned. Written with wit and verve, Just Queer Folks upsets a whole host of contemporary commonplaces, including the notion that queer history is always urban history.

Modern American Queer Historyedited by Allida M. Black

In the twentieth century, countless Americans claimed gay, lesbian, bisexual, and transgender identities, forming a movement to secure social as well as political equality. This collection of essays considers the history as well as the historiography of the queer identities and struggles that developed in the United States in the midst of widespread upheaval and change.

Officially Gay: The Political Construction of Sexuality by the U.S. Militaryby Gary L. Lehring

Officially Gay follows the military’s century-long attempt to identify and exclude gays and lesbians. It traces how the military historically constructed definitions of homosexual identity relying upon religious, medical, and psychological discourses that defined homosexuals as evil, degenerate, and unstable, making their risk to national security obvious, and mandating their exclusion from the Armed Services.

Out in the Union: A Labor History of Queer Americaby Miriam Frank

Out in the Union tells the continuous story of queer American workers from the mid-1960s through 2013. Miriam Frank shrewdly chronicles the evolution of labor politics with queer activism and identity formation, showing how unions began affirming the rights of lesbian, gay, bisexual, and transgender workers in the 1970s and 1980s. She documents coming out on the job and in the union as well as issues of discrimination and harassment, and the creation of alliances between unions and LGBT communities.

Sticky Rice: A Politics of Intraracial Desireby Cynthia Wu

Cynthia Wu’s provocative Sticky Rice examines representations of same-sex desires and intraracial intimacies in some of the most widely read pieces of Asian American literature. Analyzing canonical works such as John Okada’s No-No Boy, Monique Truong’s The Book of Salt, H. T. Tsiang’s And China Has Hands, and Lois-Ann Yamanaka’s Blu’s Hanging, as well as Philip Kan Gotanda’s play, Yankee Dawg You Die, Wu considers how male relationships in these texts blur the boundaries among the homosocial, the homoerotic, and the homosexual in ways that lie beyond our concepts of modern gay identity.

Vulnerable Constitutions: Queerness, Disability, and the Remaking of American Manhood, by Cynthia Barounis

Amputation need not always signify castration; indeed, in Jack London’s fiction, losing a limb becomes part of a process through which queerly gendered men become properly masculinized. In her astute book, Vulnerable Constitutions, Cynthia Barounis explores the way American writers have fashioned alternative—even resistant—epistemologies of queerness, disability, and masculinity. She seeks to understand the way perverse sexuality, physical damage, and bodily contamination have stimulated—rather than created a crisis for—masculine characters in twentieth- and early twenty-first-century literature.

Addressing marijuana legalization and policy reform

This week in North Philly Notes, Clayton Mosher and Scott Akins, provide talking points about the legalization of marijuana, the subject of their new book, In the Weeds

In the Weeds is a historically grounded examination of marijuana policy reform and ultimately the move toward legalization over a period extending back more than 100 years, that also deconstructs the arguments of marijuana prohibitionists/demonizers. Examined under a larger historical lens, and given use of the substance for both medicinal and recreational purposes for thousands of years, we emphasize that prohibition of marijuana constitutes a historical anomaly.  We review the findings of several government commissions on marijuana from a variety of countries from the 1890s to 1970s, almost all of which concluded that marijuana was not a dangerous drug, was not physiologically addicting, and was not a “gateway” to the use of harder drugs. Marijuana prohibitionists (conveniently or deliberately) ignore this history.

Beginning with the passage of the Marijuana Tax Act  in 1937, the U.S. federal government has taken a negative, science-optional, and essentially evidence-free approach to marijuana, most notably reflected in its refusal to remove marijuana from Schedule I status (i.e., no medical applications and high addictive liability/potential for abuse) under the Controlled Substances Act.  This refusal has several negative implications, including depriving scientists from accessing quality marijuana for the research needed to demonstrate its medicinal applications, as well as its possible negative effects; it affects the ability of marijuana-related businesses to secure financial services from banks; prevents the Environmental Protection Agency from regulating pesticides and other chemicals used on cannabis crops, and, allows companies to fire, or refuse to hire, people who test positive for marijuana. The placement of marijuana in Schedule I also ultimately gives the federal government the ability to overturn both medical and recreational legalization of marijuana in states.

In the WeedsIn the Weeds also assesses the outcomes of current marijuana legalization “experiments,” with a focus on Colorado and Washington State (the first states to legalize recreational marijuana, in 2012, with sales commencing in 2014). Marijuana prohibitionists predicted that legalization would lead to skyrocketing youth use of the substance, and that our highways would be full of carnage due to “stoned drivers.” Neither of these outcomes have manifested. Youth use of marijuana in both Colorado and Washington State has stabilized and even declined. And while there have been modest increases in drivers involved in collisions (fatal and otherwise) testing positive for marijuana, and somewhat greater increases in the prevalence of drivers testing positive for marijuana in combination with other psychoactive substances,  we do not have sufficient data to prove that marijuana “impairment” caused these collisions (i.e., finding mere traces of marijuana in one’s system does not prove that the person was impaired, nor that the alleged impairment caused the collision). We also do not have sufficient historical data (i.e., pre-legalization) to determine whether there has been an actual increase in such incidents. It is important to stress that people drove under the influence of marijuana well before its legalization. Legalization did not invent marijuana.

Marijuana prohibitionists emphasize that marijuana use among adults in the U.S. is increasing, as is heavy and frequent use among certain individuals. There are legitimate concerns regarding these increases in heavy and frequent use. However, marijuana prohibitionists have not acknowledged the emerging research indicating that cannabis may serve as a substitute for other drugs such as alcohol, opiates, and even stimulant drugs. And importantly, it is by no means clear that increases in heavy and frequent use of marijuana is attributable to the legalization of recreational or medical marijuana – that is, marijuana use, including heavy use, began increasing in the mid-2000s.

Marijuana prohibitionists (conveniently or deliberately) ignore that, although cannabis is now legal for recreational purposes in 10 U.S. states, pursuit of the substance by law enforcement continues to be a major component of the ongoing war on drugs. In fact, the most recent FBI data indicate that marijuana arrests nationally increased in both 2016 and 2017, reaching almost 600,000 arrests for possession alone in both of these years. Over the last two decades, police in the United States have made more than 11 million arrests for marijuana possession.

Marijuana prohibitionists also conveniently or deliberately ignore the fact that the defining characteristic of marijuana (and other drug law) enforcement in the United States is the gross racial/ethnic disparities in these arrests. Nationally, blacks, who consume marijuana in roughly similar proportions to whites, are about four times more likely to be arrested for marijuana possession – in some U.S. jurisdictions, the disparity ratio is as high as 30.

Even in the rare cases where they do acknowledge the number of arrests and disparities, prohibitionists will claim that none of this is a big deal, because “no one goes to jail for marijuana possession.” This is simply not true. A 2015 report by the Department of Justice found that 11,553 people in the United States were in prison on marijuana-related charges (compared to only 5,800 for heroin). In addition, each year, tens of thousands of people arrested for marijuana possession are held in jail for several days or months because they cannot post bail. There are also collateral costs associated with these arrests – they commonly result in criminal records that show up on background checks when individuals apply to rent apartments or obtain and keep their jobs.

Marijuana prohibitionists have emphasized the fact that the marijuana available today is “not your father’s marijuana” – in particular, that the THC levels in marijuana available in states where the substance is legal is much higher than in the past. This assertion is debatable to begin with – people in the United States and elsewhere who wanted high potency marijuana have always been able to obtain it (consider hashish, for example). While high potency marijuana (especially as contained in edibles and other such products) may be problematic for novice users, there is scientific evidence that more experienced users will respond to higher potency marijuana by titrating their doses to achieve their desired high.  And importantly, one of the advantages of legalization is that consumers are informed of the content of the product they are consuming.  This obviously does not occur when marijuana is only available through the black market.

Marijuana prohibitionists (especially, recently, Alex Berenson in his book Tell Your Children) have emphasized a connection between consumption of cannabis and psychosis/schizophrenia. As we document in In the Weeds, prohibitionists have overstated the results of the complex science on this issue, and confuse correlation and causation.

Among the most significant incentives for recreational marijuana legalization is that the substance can be regulated, controlled, and taxed by government entities rather than the regulation and profit remaining in the hands of criminal enterprises. For governments that have legalized recreational marijuana, the tax revenue has been substantial, far exceeding expectations, and these revenues have been used to fund a variety of societal needs, including drug prevention and treatment programs, general health services, and public education.

In the Weeds concludes that marijuana has been legalized, and the sky has not fallen.

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.

How state governments touch on nearly every aspect of public policy

This week in North Philly Notes, Michelle Atherton, co-editor of Pennsylvania Politics and Policywrites about what states do and how much power they have within modern politics and policy.

In the midst of the modern 24/7 news cycle, and the focus on the tweet of the moment from our president, it’s easy to forget that politics in our federal system runs much deeper than the national level. Americans in general are woefully unaware of what states do and how much power they have within modern politics and policy. Statewide and local elections have much lower voter turnout than presidential years, as if the composition of state legislatures and governors’ offices barely matters compared to who occupies the White House. Many would argue these governing bodies matter even more to the lives of the average citizen, as state governments touch nearly every aspect of public policy.

Pennsylvania Politics and Policy_smRepublicans in control in Washington, DC did not manage to repeal the Affordable Care Act (Obamacare), but it was originally up to the states to create their own healthcare exchanges, and whether to expand Medicaid. The Tax Cuts and Jobs Act passed in 2017 lowered federal taxes for most individuals—and especially corporations—but it also capped the state and local tax (SALT) deduction at $10,000, greatly effecting the calculus of state and local governments’ approaches to maintaining revenues.

Pennsylvania, for example, is one of the states most highly dependent upon property taxes for the support of public schools, collected locally, as opposed to relying on state taxes. Will the wealthy Philadelphia suburbs revolt come November’s general election as higher income households lose thousands of dollars in tax deductions? Perhaps the results will strengthen the case among many voters for doing away with the property tax altogether as a source of funding for public schools in the Commonwealth.

This issue and many others are explored in the first publication of Pennsylvania Politics and Policy: A Commonwealth Reader. Further topics include:

  • What would it mean for Pennsylvania to adopt direct democracy such as the citizen-initiated referendum and recall like other states? Would politicians be more responsive and less prone to corruption?
  • Why doesn’t the state of Pennsylvania place a severance tax on natural gas production? Every other state does. Alaskans each receive a dividend from fossil fuel extraction, yet Pennsylvania’s legislature refuses to move the issue forward even in the face of severe budget woes.
  • Why doesn’t the state fund education based on the number of students in schools? Every other state in the nation bases funding on real student counts. In Pennsylvania, the politics of party and leadership control in the legislature dictates funding.
  • Why does Pennsylvania not tax any form of retirement income, one of just a handful of states to do so? And, what does the rapid aging of the state mean for the bottom line of funding services both for the elderly and younger individuals and families?
  • Why did it take so long to be able to buy wine and beer at the local supermarket? Pennsylvania took a unique approach to policing vice.

Another election for the governor, the entire House, and half the Senate of Pennsylvania is just around the corner. Here’s hoping Pennsylvanians find their way to the polling place to vote in proportion to the gravity of the election’s policy implications.

 

Temple University Press Titles the Organization of American Historians Conference

This week in North Philly Notes, we highlight the books and authors at the Organization for American Historians Conference, April 12-14 in Sacramento, CA.

Visit us at Booth #210!
Titles on Display include:

Healing Our Divided Society_smHealing Our Divided Society: Investing in America Fifty Years after the Kerner Report, edited by Fred Harris and Alan Curtis.

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.

“A Road to Peace and Freedom”:  The International Workers Order and the Struggle for Economic Justice and Civil Rights, 1930-1954by Robert M. Zecker

A Road to Peace and Freedom_smMining extensive primary sources, Robert Zecker gives voice to the workers in “A Road to Peace and Freedom.” He describes the International Workers Order’s economic goals, commitment to racial justice, and activism, from lobbying to end segregation and lynching in America to defeating fascism abroad. Zecker also illustrates the panoply of entertainment, sports, and educational activities designed to cultivate the minds and bodies of members.

Against the Deportation Terror: Organizing for Immigrant Rights in the Twentieth Century, by Rachel Ida Buff

Buff approved 032017.inddDespite being characterized as a “nation of immigrants,” the United States has seen a long history of immigrant rights struggles. In her timely book Against the Deportation Terror, Rachel Ida Buff uncovers this multiracial history. She traces the story of the American Committee for the Protection of the Foreign Born (ACPFB) from its origins in the 1930s through repression during the early Cold War, to engagement with “new” Latinx and Caribbean immigrants in the 1970s and early 1980s. By tracing the work of the ACPFB and its allies over half a century, Against the Deportation Terror provides important historical precedent for contemporary immigrant rights organizing. Its lessons continue to resonate today.

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On the Stump: Campaign Oratory and Democracy in the United States, Britain, and Australia, by Sean Scalmer

Scalmer_6 x 9_new ST_030717.indd“Stumping,” or making political speeches in favor of a candidate, cause, or campaign has been around since before the 1800s, when speechmaking was frequently portrayed as delivered from the base of a tree. The practice, which has been strongly associated with the American frontier, British agitators, and colonial Australia, remains an effective component of contemporary democratic politics. In his engaging book On the Stump, Sean Scalmer provides the first comprehensive, transnational history of the “stump speech.” He traces the development and transformation of campaign oratory, as well as how national elections and public life and culture have been shaped by debate over the past century.

Sinking Chicago: Climate Change and the Remaking of a Flood-Prone Environment, by Harold L. Platt

Sinking ChicagoSMIn Sinking Chicago, Harold Platt shows how people responded to climate change in one American city over a hundred-and-fifty-year period. During a long dry spell before 1945, city residents lost sight of the connections between land use, flood control, and water quality. Then, a combination of suburban sprawl and a wet period of extreme weather events created damaging runoff surges that sank Chicago and contaminated drinking supplies with raw sewage. Chicagoans had to learn how to remake a city built on a prairie wetland. Sinking Chicago lays out a roadmap to future planning outcomes.

Believing in Cleveland: Managing Decline in “The Best Location in the Nation,” by J. Mark Souther

Believing in Cleveland_smSouther explores Cleveland’s downtown revitalization efforts, its neighborhood renewal and restoration projects, and its fight against deindustrialization. He shows how the city reshaped its image when it was bolstered by sports team victories. But Cleveland was not always on the upswing. Souther places the city’s history in the postwar context when the city and metropolitan area were divided by uneven growth. In the 1970s, the city-suburb division was wider than ever.  Believing in Cleveland recounts the long, difficult history of a city that entered the postwar period as America’s sixth largest, then lost ground during a period of robust national growth.

Constructing the Patriarchal City: Gender and the Built Environments of London, Dublin, Toronto and Chicago, 1870s into the 1940s, by Maureen A. Flanagan

Flanagan_to AMA_062217.inddConstructing 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.

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