Fighting During Recess

"The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
- U.S. Constitution: Article II, Section 2, Clause 3

“The United States Senate has the responsibility to approve or disapprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.”
- President Barack Obama

“Circumventing constitutional Senate vetting is dangerous because President Obama’s track record in vetting nominees and other high-level appointees has been very poor. . . . Many of the people President Obama is granting recess appointments will hold high level positions that will greatly influence job creation in this country.”
- Senator Jim DeMint of South Carolina

Though there is little evidence as to the intentions of the Constitution's Framers in creating the recess appointment clause, it seems that it was meant to allow the President to maintain the continuity of administrative government through the temporary filling of offices during periods when the Senate was not in session and thus could not consider nominees. This interpretation was bolstered by the fact that Congress had both relatively short sessions and long recesses between sessions until the beginning of the 20th century.

Presidents, however, have sometimes used recess appointments for political purposes--as opportunities to side-step a Congress controlled by the opposition party. Attorneys General and the courts have added to the president's recess appointment power by interpreting broadly the phrase “vacancies that may happen during the recess of the Senate." The recess appointment power is now generally accepted to include the right to make recess appointments to any position that became vacant prior to the recess and to positions that became vacant during the recess.

President Clinton made 139 recess appointments, and President George W. Bush made 171 in their two terms in the White House. President Obama has made 15 recess appointments in his year-and-a-half in office.

Current Events & the Constitution
Ask your students to deliberate the positives and negatives of recess appointments after first reading Article II, Section 2, Clause 3 of the Constitution. Then ask them to look at the history of recess appointments at the Senate's web site and what each political party has to say about President Obama's recess appointments.

Parliamentary and Presidential Systems of Government

An estimated 60 percent of Iraqis voted during the 2010 parliamentary elections on Monday. In a parliamentary democracy like Iraq’s, parliament has sovereignty over the head of the government, the prime minster. The prime minster is usually the leader of the political party that has either won the majority of seats in parliament or has the most seats without holding a majority. In the case of the latter, the political party with the most seats in parliament must form a coalition government, which includes members of other political parties. Many European, Middle Eastern, and South Asian nations follow the parliamentary system, with Britain’s being that most famous.

The political party of the current Iraqi Prime Minster, Nouri Maliki, is not expected to retain a majority of the seats in that country’s parliament but will probably still hold the most seats and thus would be forced to form a coalition government.

During the 2008 election cycle in the United States, almost 62 percent of eligible voters went to the polls to elect the 44th President of the United States. They also handed the Democratic Party a majority of the seats in both houses of Congress. Some believe the Democrats are in danger of losing their majorities in Congress during the mid-term elections this November, but no matter the result, in a presidential system, Barack Obama would still be President of the United States.

Questions to Consider

1. Which system, parliamentary or presidential, is more consistent with democratic ideals?


2. Which system provides for more accountability to the voters?


3. Why have more democracies adopted the parliamentary system than the presidential system?


4. Would a parliamentary system necessitate more political parties?


5. Would having fewer political parties mean a more stable system of government?
   

Obama Delivers Speech in Muslim World

President Obama spoke at Cairo University today, in a long-awaited speech that he had hoped to deliver in his first 100 days in office. Teachers may view this video of the speech with their students and ask them to consider the role of a United States president in international affairs. How has the role of a U.S. president evolved since 1787 when our constitution was written? In what ways does the constitution limit the president's power on the international stage and in what ways does it empower him to lead?

Supreme Court Watch

The wait is finally over. At 10:17 a.m. on Tuesday, President Obama announced his nomination to the Supreme Court: 54-year-old Judge Sonia Sotomayor. Sotomayor was one of four female candidates that the President interviewed at the White House and the most controversial of the potential nominees, due to her candid remarks about the influence that life experience plays on a judge’s interpretation of the law.

Immediately following the announcement, the White House began to familiarize America with Sotomayor’s story. Obama highlighted the Judge’s diversity of professional experience: as a prosecutor, hired by Manhattan district attorney Robert Morgenthau; as a partner in the law firm of Pavia & Harcourt; as a federal judge, appointed to the U.S. District Court by President George H.W. Bush; and as a 2nd Circuit Court of Appeals Judge, appointed by President Clinton. He also pointed to her background as a New Yorker of Puerto Rican descent from modest circumstances who rose to the highest levels of government through academic success and a distinguished career path.

If confirmed by the Senate, Judge Sotomayor will be the first Hispanic justice on the nation’s highest court and the third woman ever to serve on the Supreme Court. Her appointment will likely preserve the balance between liberal and conservatives that reigned when Justice Souter sat on the court.

Teaching Current Events with the Constitution

Teachers can assign students to research the Judge’s rulings as a Appeals Court Judge and make predictions about the issues that will surface during her confirmation hearings. Ask students to consider on what grounds Republicans might object to Judge Sotomayor’s record. What are the risks of challenging the nomination for the Republican party? What process can Senate Republicans follow in order to stall her nomination?

Obama's Pick

“I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.” - President Obama, May 1, 2009

President Obama personally announced Justice David Souter’s imminent retirement from the Supreme Court on Friday from the White House briefing room. Though Souter will remain on the bench until Obama is ready with a nomination to replace him, the President is likely to field a nominee by July, in hopes of winning confirmation for his justice by the time the court’s next term begins in October.

Speculation abounds about who will receive the President’s nomination. Most pundits agree that it will be a woman, since there is currently only one female justice on the nation’s highest court. Because Obama was a constitutional law professor at the University of Chicago before entering national politics, he has a keen sense of what qualities he seeks in his appointee. Of course, the constitution requires that the Senate confirm his nomination.

Teaching Current Events with the Constitution:

Teachers should ask students to examine the make-up of the Senate and consider how the role of political party might affect confirmation of Obama’s nominee. Specifically, two political events are likely to alter the senatorial landscape: Arlen Specter’s party switch and the outcome of the senate race in Minnesota. What effect is the balance of Republican to Democratic senators likely to have on the process?

Presidents and Pirates

“It is a settled policy of America, that as peace is better than war, war is better than tribute. The United States, while they wish for war with no nation, will buy peace with none.”
-President Madison on U.S. policy towards pirates in the Mediterranean (1815)

America’s history of fighting pirates is almost as old as the nation itself. In 1785 the first American ships were captured by the Barbary pirates and by 1796 the U.S. had signed a peace treaty with the Barbary States of North Africa formalizing the “fees” that the United States would pay for access to the Mediterranean.

In 1802 Congress authorized a permanent American naval presence in the Mediterranean because of ever increasing blackmail demands by Barbary pirates. The capture of the U.S. frigate Philadelphia in 1804 led to a daring raid on Tripoli by Stephen Decatur.

The Barbary States sought to take advantage of America’s involvement in the War of 1812 by resuming their piracy for ransom business. President Madison ended the series of Barbary wars be defeating the forces of the dey of Algiers in 1815.

Now president Obama is dealing with the pirates off the coast of Somalia, using U.S. navy Special Forces to free the American captain of a ship held by Somali pirates. Though the president gave permission to use deadly force against the pirates, many do not know that the president does not have the constitutional authority to declare war.

Teaching with the Constitution
Remind your students to click on the text of the Interactive Constitution to read Linda Monk’s explanation.

Have your students read Article I section 8 clauses 10 through 14 and then ask them to read Article II section 2 clauses 1 and 2. Ask them if Congress or the president has the constitutional authority to deal diplomatically or militarily against pirate activity.

Ask your students to read Article II section 8 clause 12 , which constitutionally limits the duration that the federal government can set aside monies for the Army, but in Article II section 8 clause 13 funds for the Navy are not limited to two years. (Hint: think about pirates and cargo ships)

Ask your students to define separation of powers and why it this is an important concept, even though it is not directly stated in the Constitution.

EPA Regulation vs. Congressional Legislation

Many believe that Congress is poised to create legislation to cap the amount of carbon dioxide that cars, power plants and other manufacturers can release into the atmosphere. EPA has signaled that it is ready to place regulatory controls on any emissions of heat-trapping gases by private citizens, small businesses or large corporations. Congressional legislation to limit carbon dioxide and other heat-trapping gases would supplant the EPA’s new regulatory plan and guide how environmental protections were implemented.

Strange Bedfellows
Environmentalists and industries that rely on fossil fuels both support Congressional legislation over EPA regulation. Legislation would preclude another presidential administration from ignoring federal court decisions (i.e., Massachusetts v. EPA) or regulatory regimes. Industry also believes that legislation will be less restrictive and more flexible than being monitored and regulated by EPA.

EPA regulation has, in the past, been confined to pollutants that do damage on a regional level, like nitrogen oxide and hydrocarbons and not pollutants on an international level, like carbon dioxide, methane and other heat-trapping gases. The Clean Air Act, therefore, may not be sufficient to deal with the believed man-made causes of global climate change.

Teaching with the Constitution
Ask your students determine how federal legislation determines the scope and amount of power an executive agency has by reading Article I section 8, clause 3 and Article I section 8, clause 18 of the Constitution.

Ask your students to determine if the president must obey a Supreme Court decision by reading Article III and Article II of the Constitution and then reading about the Marbury v. Madison decision, which hinged on whether the president would defy the Supreme Court's decision.

Ask your students to join the conversation about global climate change and the Constitution at The Exchange online community.

Clean Coal Out in the Cold?

"Clean coal" describes any process that can reduce pollutants from coal-burning power plants. Because coal will likely remain one of the nation's lowest-cost electric power sources for the foreseeable future and concerns over global climate change, the coal industry has committed to advancing clean coal technologies.

The U.S. has the world's largest coal reserves, much of which is in states like Ohio, Pennsylvania, Tennessee and West Virginia. There has been environmental damage connected to the extraction of coal causing many to question if coal can ever truly be clean.

The Obama administration is moving ahead with the development of the clean coal technology of carbon capture and storage. “Carbon capture and storage” or carbon sequestration, requires that carbon dioxide emissions be captured in the smokestacks of coal-fired power plants and factories, and then converted into a liquid and pumped into reservoirs deep in the earth.

Because the prohibitively high cost of carbon capture and storage has deterred energy companies from constructing commercial-scale power plants with carbon sequestration systems, the government has earmarked $3.4 billion for carbon sequestration technologies in the 2009 stimulus bill.

The Obama administration has also signaled that Congress, not the Environmental Protection Agency alone, should act of the issue of pollution. Lisa Jackson, President Obama's chief of the EPA, has called for legislation to address carbon dioxide emissions.

Teaching with the Constitution
Ask your students if the right to a clean and healthy environment is implied by the constitution? Then ask them if a constitutional amendment is needed to protect the environment?

Ask your students if they agree with President Obama’s pledge to continue developing clean coal technology? Ask them, what other ways can climate change be addressed? Then ask them how incentives can be used to address climate change?

Ask your students what in Article II allows the chief of the EPA to be a member of the President's cabinet?

Ask your students what in Article I gives Congress the power to determine environmental standards? Then ask them if Congress should enact legislation to restrict carbon dioxide emissions?

Examining the Surgeon General

As the popular Dr. Sanjay Gupta declines the position of Surgeon General for President Obama, one may wonder what does the Surgeon General do

The position of Surgeon General is the head of the Public Health Service Commissioned Corps, which is one of the seven uniformed services of the United States. This position oversees the 6,000 member Commissioned Corps of the U.S. Public Health Service, which provides assistance in case of a public health emergency. The Surgeon General is more widely known for his responsibilities to educate, advocate, and advise the President and the nation on matters of health. The most widely seen example of the job of the Surgeon General is the warning label on cigarettes, and a major public health awareness project under the Surgeon General today is the prevention of childhood obesity.

The Surgeon General advises the President and the Secretary of Health and Human Services. The Surgeon General is appointed by the President and confirmed by the Senate. Congress established the predecessor of the U.S. Public Health Service in 1798 although it did not resemble the current organization until 1871. Since 1871, fifteen men and two women have served as Surgeon General. Although the position does not have too much legislative influence, it has made an impact in public health policies, such as projects to promote the prevention of AIDS.

This is a great jumping point to discuss with your student the role of the federal government in public health. How much should the federal government get involved in public health? Why? Explore fiscal incentives as well as the social incentives for the government. What, if any, effects would an overhaul in our healthcare system have on the role of the Surgeon General?

Posse Comitatus

Posse Comitatus, Latin for ‘the force of the country,’ which reflects an American tradition of restraining military involvement in domestic affairs, has been front and center in the news with the release of former President George W. Bush’s legal opinions that claimed sweeping presidential powers in fighting terrorism. But this tradition has not always been observed by U.S. Presidents.

The Posse Comitatus Act of 1878 resulted in the end the use of federal troops to defend the civil rights of African Americans in the aftermath of the Civil War. Eighty years later the Act was cited in unsuccessful attempts to stop forced school segregation after the Supreme Court’s 1954 decision in Brown v. Board of Education. However because actions taken under the Insurrection Act have always been exempt from the Posse Comitatus Act, Presidents have been able to deploy federal troops inside the United States.

Both Presidents Dwight D. Eisenhower and John F. Kennedy suspended the Posse Comitatus Act by invoking the Insurrection Act to send troops to enforce desegregation in Southern states. George H.W. Bush also sent troops to quell the 1992 Los Angeles riots. The Insurrection Act of 1807 also allows the president to deploy federal troops if asked by a state governor.

Teaching Posse Comitatus and the Constitution

Ask your students to read the article Officials Cite Broad Power for President in Post-9/11 Memos , Article II as well as the First and Fourth Amendments. Then ask your students to decide if the Constitution allows the president broad powers like using federal troops inside the U.S. or suspending certain personal rights and liberties.

Ask your students to read about other presidents who have deployed federal troops inside the United States. Then ask them, are there circumstances when the president may need to deploy federal troops inside the United States?

Hillary Clinton Talks to the Middle East

This weekend, Hillary Clinton arrived in the Middle East bearing gifts. In keeping with the Obama administration's pledge to facilitate peacemaking efforts between Israel and Palestine, the Secretary of State will present 300 million dollars in aid to war-torn Gaza as well as 600 million to the Palestinian Authority during an international donors' conference convened by Egypt.

In addition to providing financial help to the region, Clinton is slated to continue to encourage Israel to open its border crossings into Gaza so that much needed resources and aid can reach the region. Israel has been resistant to U.S. requests to relax its restrictions in fear that helping to rebuild Gaza will strengthen Hamas.

Analysts also predict that since the public largely supports newly elected Israeli Prime Minister Netanyahu in his staunch opposition to peace talks with Palestine, Clinton's efforts may be fruitless. This scenario provides the opportunity to discuss diplomacy and its effectiveness with students. According to Article II, Section 2 of the constitution, the president has the right to nominate and appoint, with the approval of the senate, ambassadors and other counsels to fulfill any need he deems appropriate both foreign and domestic.

Classroom discussion questions:

• What is diplomacy?
• Why is it important?
• Why would the president appoint people to speak to other countries on his behalf instead of talking to them himself?

Have a discussion on how effective efforts at diplomacy actually are by analyzing recent examples such as the current situation in Israel, Iraq, or Afghanistan.

Tonight's Presidential Address

Tonight, in an address to Congress and the nation, President Obama will give his detailed plan for the nation over the next year of his administration, covering a variety of topics from health care to the economy and education. Though presidents don't usually deliver the constitutionally mandated State of the Union Address during their first year in office, tonight's speech will follow a similar format and be given before a joint session of Congress.

You and your students can read more about tonight's important speech on the Center's Constitution Newswire, which displays full articles on current events related to the Constitution. Check back with the Newswire tomorrow for reaction and news stories on the president's address and Gov. Bobby Jindal's rebuttal on behalf of the Republican party.

Suggested Classroom Activity
Engage your students in the president's address and current events by playing POTUS Bingo. This activity encourages students to think about issues facing the country and pay close attention during the address, with all the fun of a standard Bingo game. This activity can be completed as homework or in class, and can be used for any major presidential address.

If I could ask the President

In honor of President's Day, we are pleased to offer a video from our permanent exhibition. The “If I Could Ask the President…” video is a great tool for the classroom. Even better you can use YouTube or TeacherTube to create a video response. Show your students the video and then working in groups or as a class create your own version and upload it!

The following elements are included in our video, you may want to consider including all or some of them:

• Video of students studying about the President of the United States
• Students describing duties of the president in the Constitution
• Questions students would like to ask the President

NOTE: If you cannot see the video above via YouTube you can access the same video via TeacherTube

Campaigning for the Economic Stimulus

President Obama held a prime time press conference last night to make his case for the economic stimulus package directly to the American people. The President has put forward his plan for comprise on the Senate and House versions of the bill. What role does the president play in developing legislation, and what impact can he have with his “campaign” of support?

Classroom Activities:
-Have students examine Article I and Article II of the United States Constitution and identify the role of the president in passing legislation.
-Using the Center’s Citizen’s Help Desk to have students write letters of support or opposition to bill, directly to their Representative or Senator.

Meet the Attorney General

In remarks to Department of Justice employees this morning, newly confirmed Attorney General Eric Holder stated: “We must use every available tactic to defeat our adversaries – and we must do so within the letter and the spirit of the Constitution. There is not a tension between the ideals that formed this nation and that which we must do to keep it safe.”

Yet, during his confirmation hearing, Holder declared waterboarding, an interrogation technique considered legal under his predecessor Michael Mukasey, to be torture.

This change in interpretation is only the beginning of the review that Bush administration policies will undergo by Mr. Holder, the 82nd attorney general of the United States and the first African American attorney general in United States history.

Classroom Activity Ideas:

Ask your students to research the most controversial legal and civil liberties issues that the Justice Department will likely address under Holder’s direction.

Use the National Constitution Center’ Town Hall Wall: Spy Story to stimulate a classroom debate on whether the President has the authority to order domestic surveillance without a court-issued warrant in times of war.

What a Week It’s Been

Assign your students the challenge of identifying the constitutional authority for the president’s first actions in office.

During President Obama’s first week in office he has turned a number of his campaign promises into reality. Just hours after delivering his inaugural address, the President issued his first proclamation, designating January 20 A National Day of Renewal and Reconciliation.

Does the Constitution explicitly grant the President authority to make proclamations?

On his first full day as President, Obama signed two executive orders: one granting greater authority to the National Archives and Records Administration to disclose presidential records; and another which subjects all executive branch personnel to a set of ethics commitments, including a lobbyist gift ban and a revolving door ban.

On January 22, three more executive orders followed from the President’s pen. The first ensures for a speedy close to the detention facility at Guantánamo Bay and disposition of the detainees held there. The second creates a Special Interagency Task Force to review detention policy options of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations. The third sets new standards and practices for interrogation of individuals in the custody or control of the United States in armed conflicts, requires the CIA to close all detention facilities that it operates and requires federal government agencies to inform the Red Cross of any detainees held by the U.S. Government, among other provisions.

Does the Constitution explicitly grant the President authority to issue executive orders?

In addition, 19 nominations for cabinet positions were sent to the Senate this week for confirmation hearings.

Where is the constitutional connection for nominating an executive cabinet?

Climate Change & States' Rights

President Barack Obama is ready to give states more leeway to curb emissions from cars and to get the federal government moving on fuel-efficiency standards that could remake the auto industry.

Environment issues have become a legal dilemma within the United States. The states of Hawaii, Illinois, Pennsylvania, Massachusetts and Montana have enshrined protection of the environment in their state Constitutions, but state laws can be superseded but federal legislation.

States, individually and collectively, have been at the forefront of the regulation of green house gases, even outpacing the federal government.

The U.S. Constitution does protect the “life, liberty and property” of its citizens, but does not specifically state that a clean and healthy environment is an inalienable right. Currently there is no such right presently recognized under the U.S. Constitution, although there is under the constitutions of the countries of Argentina, Brazil, Ecuador, France, Nigeria, Portugal and South Africa and even arguably under international law.

The movement to regulate emissions has been grassroots so far, but all of that may be changing with the new administration in Washington, DC.

On April 22 students from around the world will deliberate over whether a clean environment should be a right protected by their government during The Exchange: A Marketplace of Student Ideas. For more information go to www.constitutioncenter.org/exchange.