Analysis and Commentary on Politics

Gaming American Democracy: A Perfect Storm in Which Republicans Disenfranchise Voters While Giving Corporations Unchecked Powers

Justia columnist and former counsel to the president John Dean continues his series of columns on the new techniques being employed by Republicans to alter the political landscape. In this column, Dean notes that some public attention was paid to these tactics after the controversy regarding Governor Scott Walker and Wisconsin unions, but also emphasizes that other tactics are even now being played out behind closed doors. In particular, Dean focuses on the activities of the American Legislative Exchange Council (ALEC), a very powerful corporate lobby, whose members include over 2,400 conservative state lawmakers. Dean explains that the 2010 elections proved to be a perfect storm for ALEC and its conservative partners, and—relying in part on strong reportage from Mother Jones, The Nation, and Rolling Stone—Dean details some of ALEC’s activities (such as supplying pre-cooked McBills for state legislators to pass), and some of its funding influences. Dean expresses particular concern over ALEC’s activities that aim to limit the ability of some Americans to vote, which President Clinton has decried.

Military Commissions Resurgent

Justia columnist and Hunter Human Rights Program Director Joanne Mariner comments upon the return of military commissions, which she describes as the latest in a string of victories for congressional Republicans who seek to bring back Bush-era “war on terror” policies—while seeking not only to keep Guantanamo open, but also to increase the number of persons detained there. Mariner argues that the Obama Administration ought to fight hard against such compromises of rights, but notes that it is not clear yet whether the Administration will take that stance. As Mariner explains, the test case here, which may signal the Administration’s future approach, is that of Lebanese citizen and alleged Hezbollah commander Ali Mussa Daqduq, who has been detained for crimes against U.S. military personnel in Iraq. Mariner contends that the federal courts, not military commissions, are the proper place to try terrorism suspects—with a strong record, under which (1) not a single genuine terrorist escaped conviction, and (2) the federal courts’ sentences generally proved to be longer than the military commissions' sentences.

How Much Is Truly at Stake in the Legal Battle Over Obamacare?

Justia columnist and Cornell law professor Michael C. Dorf comments on the potential impact of the resolution of the legal battle over the PPACA, also known by its critics as “Obamacare.” Various PPACA cases have caused a split among federal appellate courts, such that Dorf predicts that the Supreme Court will likely grant review this Term in a PPACA case. The case would raise the question of the constitutionality of the “individual mandate,” which requires individual Americans to purchase health insurance or pay a penalty for not doing so. Dorf argues that in the end, the Court’s PPACA decision—like Bush v. Gore before it—will have little effect as a legal precedent, but a very large political effect, as many Americans will likely see the Court’s decision, depending on how it comes out, as either a vindication or a repudiation of President Obama’s policy, and perhaps even the President himself.

Gaming American Democracy: How New Republican Techniques Seek to Change the Political System Itself

Justia columnist and former counsel to the president John Dean begins a new series of columns on current Republican political strategies and approaches. Dean describes what is happening now as the return of Nixonian politics, on steroids, and he contends that today, Republican operatives are employing strategies to empower themselves that would never succeed at the ballot box if voters fully understood what was occurring. Dean notes that this attempt to transform our political system is receiving little news coverage, and offer some reasons why, including Americans’ disinterest in “process” issues and the fact that mainstream news organizations are largely controlled by highly profit-driven major corporations, and those companies’ executives often lean toward Republican views. Dean focuses, especially, on the role of the Tea Party, which he describes as “the tip of the conservative iceberg” now, while also contending that the real story is not about the Tea Party, but about other, more mainstream Republicans who are in power today, and their political strategies.

Assessing Michele Bachmann as a 2012 Presidential Candidate: Part Three in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton continues her ongoing series about the 2012 presidential candidates and their views on religion. In this column, Hamilton considers the views of Congresswoman Michele Bachmann. Hamilton contends that a Bachmann presidency would likely be dominated by evangelical Christianity, and notes that Bachmann sees the separation of church and state as “a myth” and would likely nominate to the federal judiciary only those who share her views. Moreover, Hamilton argues that Bachmann’s religious views would, if she were elected, also influence her foreign policy (which she has suggested would be automatically pro-Israel on religious grounds) and her policies on social issues such as abortion, stem-cell research, the HPV vaccine, and gay rights. Hamilton also notes that although Bachmann claims to support states’ rights, in practice she supports federal action if one of the policies that she herself favors is at issue.

A Decade of 9/11

Justia columnist and Hunter Human Rights Program Director Joanne Mariner suggests an answer to the following question: Ten years after the terrorist attacks that were said to have “changed everything,” what has actually changed in the protection of human rights, and how did these changes take place? Mariner isolates five distinct periods of government policy, as it has evolved over the post-9/11 years: (1) the directly post-9/11 era of unchecked abuses (especially by the CIA), which was sparked by the post-9/11 Bush Administration claim that the U.S. was waging a war on terror; (2) the era of retrenchment and reassertion, when the Bush Administration was put on the defensive; (3) the attempt, during the last years of the Bush Administration, to establish a legal foundation for its “war on terror” actions; (4) the initial, but short-lived, Obama Administration push to reverse the Bush Administration's approaches; and (5) the current Obama Administration policy era—when, Mariner contends, because President Obama has a more liberal image and generally more liberal politics, he can not only adopt certain abusive policies, but he can also normalize them in a way that President Bush never could have done.

The Fight Over Alabama’s Immigration Law Features Increasingly Estranged Allies: Conservative Populists Versus Big Business

Justia columnist and Cornell law professor Michael Dorf examines the way in which an Alabama immigration law—which would place the state in the role of enforcer of federal immigration laws—illustrates a schism that may be growing between two conservative constituencies: populists and corporatists. Dorf illustrates his point about the schism by reference to the controversies over the Troubled Assets Relief Program (TARP) and over immigration, which have split the Republican Party. He also asks if populist conservatives and business conservatives can ever truly get along—and notes ways in which the Supreme Court has been surprisingly supportive of the populists.

Assessing Former U.S. Senator Rick Santorum as a 2012 Presidential Candidate: Part Two in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton continues her series of columns on the 2012 presidential candidates’ views on religion, with an analysis of the views of Rick Santorum, a former U.S. Senator from Pennsylvania. Hamilton critiques Santorum for failing to respect the Constitution’s separation of church and state, and for expressing support for states’ rights while also endorsing federal legislation that would displace state power, when it comes to certain policies he favors.

An End to La Dolce Vita for Italian MPs? How a Menu, Social Networking, and Budget Woes May Lead to Much-Needed Reforms

Justia columnist and U. Washington law professor Anita Ramasastry focuses on a scandal that shows how posts on social networking sites may lead to much-needed reforms. As Ramasastry explains, the Facebook page of an anonymous person who goes by “Spider Truman” has played a key role in focusing public attention on the lavish lives of Italian Members of Parliament (MPs), and their alleged corruption. With Italy now in a severe financial crisis, disclosures on the site of “Spider Truman” concerning MPs’ many perks and alleged misconduct have enraged many, Ramasastry points out. Examples include the MPs’ menu of gourmet food at heavily subsidized prices, and their alleged fraudulent expense claims. Noting that UK MPs previously were part of a similar scandal that led to reform, Ramasastry contends that social networking may be a catalyst for greater governmental openness in Italy and elsewhere.

What Obama Should Say to the Nation

Justia columnist and Cornell law professor Michael Dorf notes that many Americans have expressed disappointment in President Obama’s recent speeches. But, of course, it’s easy to criticize, and much harder to detail what the President actually should be saying. That’s exactly what Dorf does in this column—even going so far as to offer his own hypothetical stump speech for President Obama to deliver—a speech addressing tough issues like tax cuts; how, exactly, to put Americans back to work; and one key policy and legal point that Republicans and Democrats alike ought to agree upon.

Assessing Texas Governor Rick Perry as a 2012 Presidential Candidate: Part One in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton begins her series on likely 2012 presidential candidates and their views on religion. Here, Hamilton assesses the views of Texas Governor Rick Perry. She expresses concern, in particular, with Perry’s lack of belief in the separation of church and state, as exemplified by his speeches; finds in Perry’s record a belief that religion should drive politics; and questions Perry’s claimed beliefs in small government and in federalism.

Preventing the Next Crisis: What We Must Do to Maintain the Public’s Confidence in the Financial System

Justia columnist, George Washington law professor, and economist Neil Buchanan suggests how, in the future, we can ensure that the debt limit is not, once again, used as a political weapon. He discusses three key solutions: (1) simply eliminating the debt limit via a presidential directive incorporating a Fourteenth Amendment analysis, as The New York Times suggested; (2) and following one of Yale Law professor Jack Balkin’s two suggestions, which are nicknamed “Big Coin” and “Exploding Option.” Buchanan provides background to ensure that readers fully understand each suggestion, and points out a downside to Balkin’s ideas: the public’s confidence in money and the monetary system may turn out to be fragile, if the system is experimented with.

The Roots of the Debt-Limit Crisis: Fear Is a Great Motivator, but Scared People Often Act Rashly and Foolishly

Justia columnist, George Washington law professor, and economist Neil Buchanan continues his commentary on the debt-limit crisis and its resolution. Buchanan contends that there is little to applaud in the resolution of the crisis—for, he says, we have now embarked on a path that will only make a sick economy much sicker, and could even push the country back into recession. In light of these realities, he argues, we need to ask how we got here: How did we reach the point where both parties became committed to an economic strategy that is so detached from reality? Buchanan stresses, especially, that America should have focused on unemployment, not spending reductions.

Sovereign Default: Putting the United States’ Debt-Ceiling Debate in Context Why Self Help Is the Only Option

Justia columnist and U. Washington law professor Anita Ramasastry provides important background on the United States’ debt ceiling debate, explaining exactly why the United States—unlike other countries—has only one option when the risk of sovereign default looms: self help. Ramasastry first considers how other countries typically handle sovereign default or distress, then covers the reasons why the United States’ situation is very different, and concludes by examining why there has been such a great need for Congress and President Obama to reach a resolution of this issue.

The Debt Ceiling Crisis Reveals a Constitutional Gap: How to Choose Among Unconstitutional Options

Justia columnist and Cornell law professor Michael Dorf comments on what may happen if the debt-ceiling deal that President Obama announced on Sunday, August 31, is somehow derailed—or if (as is almost certain to be the case) future Presidents face constitutional-law issues that are philosophically similar to the one President Obama may have narrowly avoided here. In discussing the debt-ceiling issue and its constitutional dimensions, Dorf describes the trilemma the President may face; raises the question whether the constitutionality of a measure must be an either/or proposition or if there are intermediate options of a measure's being, say, “very unconstitutional” or “a little unconstitutional”; and describes America’s historic hostility to balancing different constitutional values against one another.

The Tea Party: Same Old Authoritarian Conservatives With a New Label

Justia columnist and former counsel to the president John W. Dean comments on the Tea Party movement. Dean contends that, far from being a truly new force, the Tea Party’s membership is recognizable as consisting of the very kind of authoritarian conservatives America has often seen in past politics. Drawing on the work of Professor Robert Altemeyer, who devoted much of his career to studying the authoritarian personality, Dean notes the telltale characteristics of authoritarian conservative; argues that each of these signal qualities can be seen clearly in Tea Party movement adherents; and cautions that authoritarians do not tend to do well, over the long haul, in a democracy.

Rupert Murdoch’s Watergate: The Troubling Parallels

Justia columnist and former counsel to the president John Dean comments on the voicemail hacking scandal surrounding News Corp.’s News of the World, drawing a parallel between the unfolding of this scandal and the unfolding of Watergate. Dean applies the framework sketched out in Cambridge sociologist John B. Thompson’s 2000 work Political Scandal: Power and Visibility in the Media Age to predict what will happen next to Rupert Murdoch, the Chair and CEO of News Corp.

The Debt Ceiling Law Is Unconstitutional: A Reply to Professor Tribe

Justia columnist, George Washington law professor, and economist Neil Buchanan responds to a recent New York Times editorial by Laurence Tribe regarding the constitutionality of the federal government's debt ceiling. Tribe contended that the limit is constitutional; Buchanan contends that it is not. In his column, Buchanan summarizes and responds to Tribe's arguments regarding the key constitutional provision at issue, the Public Debt Clause.

The Debt-Limit Crisis: A Problem That Will Keep Coming Back Unless President Obama Takes a Constitutional Stand Now

Justia columnist, George Washington University law professor, and economist Neil H. Buchanan comments on the current situation regarding the federal debt limit, considers how it could be resolved, and notes that President Obama could take a constitutional stand in order to resolve the impasse. Buchanan begins by explaining for readers what the debt limit is and why it is important now; explains why the debt-limit law that set the ceiling was never necessary in the first place; describes the potentially very grave consequences of passing the debt-limit ceiling with that law in place, as it is now; and contends that our current game of political “chicken” regarding the debt limit is dangerous indeed. He then describes a possible constitutional solution that President Obama could opt for, based on arguments that the debt limit is illegitimate and void as a matter of constitutional law. Finally, Buchanan explains why, even if the debt limit were to be removed from the picture, an underlying, related problem with the political process would still remain.

Rod Blagojevich’s Second Trial – and Conviction: Why He Lost This Time

Justia columnist and former counsel to the president John Dean comments on the second trial of former Illinois Governor Rod Blagojevich, on charges related to a number of instances of political corruption – one of which, perhaps most famously, relates to filling then-President-elect Obama’s open Senate seat. (Obama himself played no part in the scheme). Dean explains why, in Blagojevich’s first trial, he was convicted on only one count, whereas in this second trial, the jury found him guilty on 17 of 20 counts. Dean also covers the unusual voting system that the jury used during its deliberation and offers telling samples of the recordings that led to the conviction. In addition, he parallels Blagojevich’s defense with Nixon’s, and considers – based on conversations with a number of sentencing experts – what sentence Blagojevich may receive. Finally , Dean concludes that any appeal will likely fail, as the judge who oversaw the trial is seen as too intelligent and able to have erred on the law.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more