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Transparency Comes to the World of Political Advertising...If You Can Read the Data

Radio stations and cable TV will soon need to disclose online the political ad spending of Donald Trump, Hillary Clinton and other candidates -- but don’t expect instant clarity.

The U.S. Federal Communications Commission on Thursday is set to bring other media in line with broadcast television, which began disclosing political spending online during the last presidential election campaign. The proposed order, backed by FCC Chairman Tom Wheeler, includes satellite TV and is expected to be approved.

“For too long, the public could barely access the ‘public’ file. It was maintained only on paper in file cabinets at the actual radio and TV stations,” Wheeler said in a Jan. 7 blog post. “In the Internet age, that didn’t make any sense.”

The order requires the disclosure of ad spending on behalf of candidates for local, state and federal public office on an FCC website but doesn’t specify how the data must be reported. Information may be entered in a hodgepodge of formats, possibly with hand-scribbled amendments, leaving a daunting task for analysts, journalists and others collating totals and divining trends.

Symbolic Gesture

“Symbolically it’s great,” said Tim Francisco, a professor at Youngstown State University in Youngstown, Ohio, who has helped students track campaign spending. “We’re increasing the number of files available, but we’re not making them any easier to access.”

The FCC already requires orderly records “of all requests for broadcast time made by or on behalf of a candidate for public office” and the order would move the documentation from paper to online files.

The FCC left out of the order any requirement for the use of machine-readable data. The priority is to bring more information online before considering other changes, said Neil Grace, an agency spokesman.

Measures advanced by Wheeler, a Democrat, typically pass because his party controls three votes on the five-member panel. Broadcasters and cable operators speaking through trade groups didn’t object to placing reports online and asked for eased requirements for smaller operators.

The proposal will probably pass because it doesn’t face opposition and the online requirement hasn’t burdened TV stations, said Andrew Jay Schwartzman, a Washington-based lawyer who works on disclosure issues with the Institute for Public Representation at the Georgetown University Law Center.

‘True Sponsors’

The FCC hasn’t forced the disclosure of anonymous donors who fund independent groups behind some political ads, as requested by some policy advocates and members of Congress.

In a Jan. 20 letter, 170 of the U.S. House’s 188 Democrats urged Wheeler to force the disclosure of what they called “the true sponsors” of political ads: “those who contributed the money to pay for it.”

“Groups spending money to influence our elections should be required to publicly release their donors,” said the letter signed by Representatives John Yarmuth, of Kentucky; Anna Eshoo, of California, a leader for telecommunications legislation; and Steny Hoyer, of Maryland, the No. 2 Democrat in the House. The FCC has power to reverse an earlier agency decision and demand fuller disclosure, they said. The agency is reviewing the letter, said Grace, the spokesman.

Citizens United

The disclosure issue has dogged Wheeler, a Democrat appointed by President Barack Obama. In 2013, Republican Senator Ted Cruz, now a presidential candidate, blocked a confirmation vote for Wheeler after asking whether he would use the agency to regulate political speech. Cruz, of Texas, relented after Wheeler in a meeting told him expanding political-ad disclosure wasn’t a priority, according to a statement from Cruz. Grace, the agency spokesman, declined to comment about the meeting.

Democrats have pushed legislation to uncover donors funding independent groups airing ads. Republicans, who control Congress, have blocked the legislation, arguing it poses a threat to free speech. The battle has been raging since the Supreme Court’s 2010 decision in Citizens United that struck down decades-old restriction on corporate and union money in campaigns.

Groups including Common Cause, the Campaign Legal Center and the Sunlight Foundation also have askedthe FCC for more-thorough disclosure. The agency hasn’t acted on their complaint that TV stations didn’t disclose that commercials by Independence USA political action committee were funded by Michael Bloomberg, founder and majority owner of Bloomberg News parent Bloomberg LP.

‘A Slam-Dunk’

The groups also said TV stations didn’t disclose California billionaire Tom Steyer as the sponsor of advertisements purchased by NextGen Climate Action Committee, or Sean Fieler as the sponsor of advertisements purchased by American Principles Fund. FCC staff dismissed those complaints in 2014 and the groups have asked the agency to reconsider.

Sponsorship is a “much bigger issue” than machine-readable formats, said Meredith McGehee, policy director at the Campaign Legal Center, a Washington-based nonprofit that works for more disclosure. “That should be a slam-dunk, but it’s not.”

Cable will receive an estimated18 percent of the $4.4 billion in expected political ad spending on TV this year, compared to $3.8 billion in the 2012 election, according to Kantar Media’s CMAG.

“This proposal does not include new disclosure requirements,” Wheeler said in his blog post. “The public will gain greater transparency and easier access to the information contained in the public files.”

Monumental Effort

The FCC’s 2012 rule on TV broadcasters began taking effect about three months after being voted, and on a similar schedule the new requirement could be in place for this year’s second-half surge of politicking.

The change will leave plenty of work for people such as Robert Maguire, an investigator at the finance-tracking Center for Responsive Politics. Three researchers with the Washington-based center have spent hundreds of hours scouring, entering and checking data from the FCC’s online disclosures to compile a data base of 363,000 entries.

"We’ve been doing this since June and we still don’t have it out,” Maguire said. “Our wrestling with the FCC data has been monumental.”

How G.W. Bush got to be President


 Boy's murder conviction sharpens debate on whether juveniles are fit to waive rights

Joseph, 10, had just told police he shot his father while he slept. The father had threatened to remove smoke detectors from the home and burn the family in it, the boy related, and had beaten him and his stepmother.

A detective told Joseph he had the right to remain silent and asked whether Joseph understood that.

"That means I have the right to stay calm," Joseph replied.

After hearing more explanation from the detective, Joseph waived his rights and was later convicted of murder. He was one of hundreds of juveniles interrogated by police in California each year who waive legal rights that some experts say the youngsters do not understand.


"With many adolescents, the most important thing is what is going to happen to them in the next half hour," said University of Massachusetts emeritus medical professor Thomas Grisso. "Can they go home? Adults are much more likely to consider the longer-term consequences."

Joseph's case has sharpened a debate among courts over whether juveniles are savvy enough to waive their legal rights.

After a majority on the California Supreme Court declined last month to review Joseph's case, two dissenting justices asked the Legislature to consider establishing new rules or guidelines for the interrogation of juveniles. Other courts also have tackled the question in recent rulings: At what age are juveniles cognitively and emotionally capable of understanding the consequences of their actions in the criminal justice system?

Studies show that juveniles, particularly those under 13, cannot fully comprehend the implications of talking to police without lawyers. They are more likely than adults both to waive their rights and to confess to crimes they didn't commit. When they do falsely confess, it is often to protect others, according to experts in juvenile justice.

Some states have rules to protect juveniles during interrogations, but California decides whether waivers are valid on a case-by-case basis — and only when a verdict results in an appeal. The practice prompted three state high court justices — all with young children and appointed by Gov. Jerry Brown — to dissent when the court refused to take up Joseph's case.

"Consideration of special safeguards for young children need not await judicial action," Justice Goodwin Liu, joined by Justice Mariano-Florentino Cuéllar, wrote in a dissent. "Many states have found the issue worthy of legislative attention." Justice Leondra Kruger also wanted to review the case but did not sign Liu's dissent.

Liu noted that 613 kids under the age of 12 were arrested for felonies in 2011, the year Joseph killed his father. More than 500 minors in that age group were arrested for felonies in 2012, nearly 450 in 2013 and 281 in 2014, Liu said.

"The proper application of Miranda to children in Joseph's age range likely affects hundreds of cases each year, even though few such cases result in a trial and appeal," Liu wrote.

The issue already had been raised by other courts before Liu's dissent grabbed attention.

A San Francisco-based state appeals court recently condemned police tactics in the case of a 13-year-old found to have committed a lewd and lascivious act upon a child.

Justice J. Anthony Kline, writing for a three-judge panel, blamed detectives' "accusatory … dominating, unyielding and intimidating" interrogation for the boy's admission that he touched a 3-year-old in the vaginal area out of curiosity. The court noted that detectives lied to the boy — a practice permitted in the U.S. but not in several European countries — to extract an admission.

"The realization that children and adolescents are much more vulnerable to psychologically coercive interrogations and in other dealings with the police" is well-known, Kline wrote.

Kline's ruling cited research that found that juveniles were particularly susceptible to confessing to crimes they didn't commit. In a 2004 study of 125 proven false confessions, juveniles accounted for one-third of admissions. Another study of 340 exonerations found that 13% of the adults falsely confessed compared with 42% of the juveniles.

In yet another case of a juvenile confession, the 9th Circuit Court of Appeals in August overturned the murder conviction of Adrian Reyes, 15, for Derek Ochoa's slaying in a gang assault. The ruling hinged on the way the police interrogated the boy.

Riverside police traced a car at the crime scene to an older cousin of Reyes, who had just turned 15. Police questioned the high school freshman over two days without advising him of his rights and falsely told him he had been identified by a witness as the culprit, according to the court. Reyes also was given a polygraph, without any consent by an adult. The result of the test was not in the court records, the 9th Circuit said. Reyes was told he failed.

A detective asked him whether he was afraid of going to jail. Reyes said he was afraid of being locked up for 25 years.

Detective: "How many 15-year-olds do you know that go to jail for 25 years?"

Reyes: "None."

Detective: "OK, so why would you be any different?"

After confessing, Reyes asked the police not to tell his parents. He repeated the admission after being read his rights and received a 50-year sentence.

UC Irvine professor Elizabeth E. Cauffman, an expert in the development and treatment of anti-social behavior in adolescents, cited research that she said showed juveniles 15 and younger lack the cognitive ability to understand what happens at a trial.

"We are transferring kids to the adult court system and they are not competent to stand trial," she said.

Adolescents generally are cognitively mature at age 16, but lack emotional "self-regulation," she said. The brain is not fully developed until age 25. Studies show that by that age, people can control their impulses and tend to commit fewer crimes, she said.

Despite such research, Californians passed Proposition 21 in 2000, giving prosecutors wide authority to charge a juvenile in adult court. Public sentiment has since changed, according to polls, and the U.S. Supreme Court has struck down laws mandating life without parole for juveniles who kill.

"The pendulum is kind of swinging, with courts saying tough, hard punishments for very young kids don't make a lot of sense," said Barry Krisberg, a social scientist and expert in juvenile justice. "The legal world is trying to catch up to the brain science."

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said he would like Miranda rights to be eliminated and all interrogations videotaped. He called the brain research about adolescents' legal culpability "a bunch of hooey."

"I am reluctant to draw bright lines on age because people mature at different rates and people become street smart at different rates," Scheidegger said.

UC Berkeley law professor Franklin E. Zimring, on the other hand, said he favors a requirement that a parent's consent be obtained before a minor can be interrogated.

"Anybody who understands what goes on during a police interrogation asks for a lawyer and shuts up," Zimring said.

[email protected]

Brown v. Board of Ed. of Topeka, Kansas



Citizens United


The Age of Super PACs


Campaign Money With No Fingerprints

anonymous campaign finance.gif




Rural America is becoming more diverse politically

Thank retired baby-boomers

FOR Americans who love road trips but despise Democrats, the Obama years have been a golden age. Rural America does not like this president—an antipathy that only deepened between his election in 2008 and his re-election four years later, when he picked up just 37% of rural voters. Add that trend to a decades-long swing of southern states away from the Democratic Party, and the size of conservative America, measured in square miles of majority-Republican territory, has grown and grown. In 2012 the Republican candidate, Mitt Romney, won fully 77.9% of the counties of America (though, sadly for him, those counties are home to just 42.7% of the population). With a bit of planning, you can drive across the lower 48 states from east-to-west or top-to-bottom without entering a single county won by Mr Obama in a presidential contest—though you’d need a stomach for barbecued meat, country music and conservative talk-radio.

Small wonder that so many Democratic campaigns focus on cities and college towns, hoping to offset rural losses by running up huge margins of victory among such groups as urban youngsters, non-whites and highly educated liberals. In contrast Republicans need little prodding to don jeans, brag about their love of hunting and denounce gun controls or environmental rules as an imposition by bossy, out-of-touch Washington elitists. Each election sees campaign outfits pop up with names like “Farmers and Ranchers for Romney Coalition”.

But a paper published in the September issue of Political Geography, an academic journal, suggests that both parties may need to refine their thinking. The paper, by scholars at the University of New Hampshire (UNH), finds that rural America is far from monolithic in its politics. The country boasts roughly 2,000 rural counties. They cover three-quarters of its land area and are home to about 50m of its people, or just under one-sixth of the population. Most have mixed economies, containing everything from farms to slaughterhouses or prisons (guarding ne’er-do-wells is a big rural industry). One in five is classified as a “farm county” by the government, meaning that its economy is dominated by agriculture. At the other end of a socio-economic spectrum lie the 289 rural counties deemed “recreational”, meaning that their prosperity rests on enjoyment of the Great Outdoors and other forms of leisure. These counties range from Rocky Mountain ski valleys to New England hamlets teeming with baby-boomers, most planning active retirements full of hiking, cycling or organic bee-keeping.

The new paper, “Red rural, blue rural? Presidential voting patterns in a changing rural America”, focuses on farm and recreational counties. Counties dominated by the “old” rural economy of farming are sternly conservative, handing Mr Obama just over a third of their votes in 2012. Digging into a nationwide survey that included 9,000 rural voters, the Co-operative Congressional Election Study, the UNH academics found farm-county residents strongly opposed to gay marriage and legal abortion, and more sceptical than the average American about the menace posed by climate change. By contrast, the mountain-biking, canoe-paddling, golf-playing residents of recreational counties handed almost half their votes to Mr Obama in 2012 and take a liberal line on all manner of social issues (not least because they are significantly less likely than other country-dwellers to call religion “very important” in their lives).

Many farm counties have seen their populations stagnate or shrink for decades, and struggle to hold on to their youngsters once they reach adulthood. In contrast, far-flung counties offering pretty landscapes or such attractions as golf courses, ski slopes or even rural casinos have seen big inflows by what demographers call “amenity migrants”, though arrivals slowed during the recent recession. Such newcomers tend to be richer and better-educated than typical rural residents. The migrants bring different ideas with them and, although many of them are retired, they also create jobs for younger people. As Kenneth Johnson, an author of the paper, notes: “Somebody has to staff the hospitals and build the houses.” Some recreational counties have seen growth rates that rival those of successful cities.

Different strokes for different folks
In a few cases, migration flows have been large enough to help create new presidential swing states, argues another of the authors, Dante Scala. A case in point is New Hampshire, which wields outsize clout as an early-voting state in the Democratic and Republican contests to choose a presidential nominee. The lovely, thickly forested north of the state is the ancestral home of the Yankee Republicans—a flinty, taciturn bunch with little time for either government meddling or fire-and-brimstone social conservatives. But lots of those moderates have moved either to Florida or to meet their Maker, says Mr Scala, a political scientist. In New Hampshire’s four recreational counties, their places have often been taken by folk from such states as New York and New Jersey, who have brought their Democratic-leaning politics along with their walking books. In 2012 Mr Obama averaged more than half of the vote in those recreational counties, helping him to victory in New Hampshire. The president did equally well in the ski towns and hiking centres of Colorado, another battleground state.

Change will take a while. To borrow an elegant cultural measure invented by Justin Farrell, a Yale University sociologist, in lots of rural states drivers with gun racks still outnumber those with bicycle racks. In such electoral battlegrounds as Virginia and North Carolina, the Democrats’ rural bastions remain counties with lots of black residents. But some 70m baby-boomers are due to retire in the next two decades. If only some of them yearn to picnic in pine forests or swim in glacial lakes, local power-brokers such as farmers, ranchers or miners will find their clout challenged. Back-country road trips may never be the same.

A brief history of populism

What is populism?
Broadly speaking, it's the belief that the will of ordinary citizens should prevail over that of a privileged elite. Throughout American history, movements based on anti-elitism have repeatedly sprung up on both the left and right, often stoked by charismatic firebrands who harnessed the resentment of marginalized people. Today, both the Democratic and Republican parties have been splintered by populist movements. Bernie Sanders, a self-described "democratic socialist" who rails against income inequality and the billionaire class, is mounting a serious challenge to Democratic frontrunner Hillary Clinton. The Republican race, meanwhile, has been roiled by the right-wing populist campaign of real estate mogul Donald Trump, who vows to deport all 11.5 million illegal immigrants and build a massive wall at the Mexican border. Neither Sanders' nor Trump's message is really new. Sanders has picked up where the late-19th-century Populist Party left off, and as former Texas Gov. Rick Perry recently observed, "Donald Trump is the modern-day incarnation of the Know-Nothing movement."

Who were the Know-Nothings?
They were a xenophobic political movement that arose in the 1840s, in reaction to a huge influx of Irish Catholic and German immigrants. Native-born Protestants saw these immigrants as job-stealing threats to America's cultural and religious identity. The Know-Nothings began as secret societies — asked about their ties to these groups, members were instructed to say they "knew nothing." But they came out of the closet in 1855 to form the American Party, demanding immigration restrictions and a 21-year residency requirement for citizenship. In 1856, the Know-Nothings chose former President Millard Fillmore as their nominee, and he won 21.6 percent of the vote. Later, a rift between anti-slavery and pro-slavery factions fatally splintered their movement, but nativism has flared anew with every successive wave of immigration.

What about left-wing populism?
The first movement of this kind was started in the 1880s, by farmers who were suffering because of plummeting cotton prices in the South and a drought in the Great Plains. As farmers sank deeper into debt, their simmering resentments of Eastern elites were ignited, especially by bankers charging exorbitant lending rates and railroad barons charging high prices. The farmers, labor unions, and their sympathizers formed what they officially called the People's Party but was commonly known as the Populists. The Populists felt "squeezed by the unfettered capitalism of the Gilded Age," says Rutgers University historian David Greenberg. The Populists wanted to nationalize railroads, break up big trusts, and get rid of the gold standard, which restricted the money supply. They also advocated an eight-hour workday, women's suffrage, and a progressive income tax. In 1892 Populist presidential candidate James B. Weaver won 8.5 percent of the vote. But it was downhill from there.

What happened?
The Populists split into two factions: "fusionists," who thought the party should merge with the Democrats, and Populists, who preferred independence. The fusionists prevailed, rallying behind 1896 Democratic presidential candidate William Jennings Bryan, whose convention address decrying the gold standard — "You shall not crucify mankind upon a cross of gold" — remains one of American history's most famous speeches. He lost the election to Republican William McKinley, however — and went on to lose two more. But Bryan left a lasting Populist legacy. He "was the first leader of a major party to argue for permanently expanding the power of the federal government to serve the welfare of ordinary Americans," says biographer Michael Kazin.

What became of the Populists?
Many of their core ideas were absorbed by the Democratic Party and became the foundation of Franklin Delano Roosevelt's New Deal. More radical versions also sprang up during the Depression, which saw the meteoric rise of Huey P. Long. But during the Cold War, anti-elitism "began to slip its liberal moorings," Kazin says. After controlling federal power for a generation, liberals were the elite — and populism took a hard right turn. The anti-Communist crusade of Sen. Joseph McCarthy trained its rhetoric mostly on left-leaning academics, Ivy League–educated officials, and Hollywood actors and producers. In the 1960s, segregationist Alabama Gov. George Wallace played the working-class hero, snarling at "pointy-headed bureaucrats" and liberals. His third-party presidential bid in 1968 drew 13.6 percent of the vote. Conservatism has had a strain of anti-elitist populism ever since, most recently and effectively in the Tea Party.

Why has populism returned?
The 2008 financial crisis sparked an explosion of anger against Wall Street and Washington. In Sanders, left-wing populism comes full circle — his stump speeches would have played well in the 1890s. Trump has taken the old nativist message, added a big dose of narcissism, and turned his movement into a cult of personality. But throughout history, populists from left to right have had something in common besides anti-elitism. While they often influence mainstream parties, they don't win national elections. The majority of voters reject "their Us versus Them mentality," says columnist David Brooks, making the history of populism "generally a history of defeat."

The Kingfish
"Every man a king." That was the slogan of Huey Pierce Long Jr., the Louisiana governor and senator of the 1930s who was arguably the most flamboyant populist in American history. The pugnacious country boy called himself The Kingfish, and was a sworn enemy of oligarchs and corporate interests and boasted of buying legislators "like sacks of potatoes." In the depths of the Depression, Long's "Share Our Wealth" plan called for the federal government to confiscate the fortunes of anyone with more than $8 million in wealth to provide a $5,000 annual income ($71,450 in 2015 dollars) and health care for all American families. As governor, Long built thousands of miles of roads and improved education, but was also notoriously corrupt and dictatorial. Franklin Roosevelt called him one of the most dangerous men in America, with good reason: The Kingfish was widely considered a viable dark-horse candidate to defeat FDR in 1936. But he was assassinated by the relative of a political foe. Long's last words: "I wonder why he shot me."

Hillary Clinton’s Authenticity Problem, and Ours

Is Hillary Rodham Clinton not presenting her true self to voters? As with candidates like Mitt Romney and Al Gore, claims that she is inauthentic have fueled endless cycles of negative coverage of her campaign.

In reality, all politicians are strategic about the image and behaviors they present to voters. Some just hide the artifice better than others.

The refrain that Mrs. Clinton is calculating and inauthentic has recurred throughout her political career. During this campaign cycle, reporters and columnists have already questioned who the “Real Hillary” is, said that she “wrestles with the authenticity issue,” and described just being herself on the campaign trail as “a tricky proposition.” The Daily Beast’s Mike Barnicle reflected the conventional wisdom in writing that the “nagging question” that “won’t go away” is “Who is she? Really, who is she?”

Mrs. Clinton herself tries to dispel the story line. “I’m a real person,” she said on “Face the Nation” last Sunday. The effort to showcase her personality in more comfortable settings has led to a surge in appearances in nontraditional venues, including a dance on “Ellen” and an interview with Lena Dunham.

She is hardly the first to face this treatment. For instance, demands for the “real” Mitt Romney plagued him during the 2012 presidential campaign. The presumption of these claims is that politicians should reveal their true selves to us, and that those who don’t have something to hide.

An alternative explanation is that candidates who appear inauthentic trigger our suspicions about politicians — they don’t seem to behave normally, which must mean they are up to something. But few people appear comfortable under bright lights during highly staged events; most of us would act just as awkwardly or unnaturally as Mrs. Clinton or Mr. Romney sometimes do. That behavior is likely to be a reflection of their performance skills, not a lack of authenticity.

Conversely, we shouldn’t assume that politicians who appear to be sincere are actually more genuine or revealing of their true selves. Like the stars you see telling scripted anecdotes on talk shows, they’re often just skilled at performing their public role. As the political scientist Richard Skinner has noted, the personas of popular presidents such as George Washington, Abraham Lincoln and John F. Kennedy were artificial constructions.

Even Joe Biden, the outgoing and expressive vice president who is widely seen as a more “authentic” alternative to Mrs. Clinton, has publicly cited his family’s genuine grieving over his son’s death as a reason not to enter the Democratic race while privately continuing to lay the groundwork for a possible run.

Recent examples illustrate how inconsistently and arbitrarily the labels of authenticity and inauthenticity are applied to candidates. Scott Walker changed a number of positions after entering the G.O.P. presidential race but generally wasn’t covered as a phony, while Mr. Romney was. Jeb Bush has stuck to some unpopular stances, but isn’t covered as a “maverick” like John McCain. The difference may be their performance skills, not their positions.

Similarly, George W. Bush and Al Gore were both born into powerful political families, but were perceived very differently. Mr. Bush successfully reinvented himself as a down-home Texas ranch owner despite being the son of a president with elite New England roots, while Mr. Gore was widely mocked as a phony who grew up amid wealth and power in Washington, especially when he invoked his childhood work on his family’s Tennessee farm. Again, one simple explanation for the disparate treatment they received is that Mr. Bush was a better political performer.

Once these narratives develop, candidates like Mrs. Clinton can get stuck in what I’ve called the authenticity doom loop — the same fate that plagued Mr. Gore and Mr. Romney. In this phase, candidates are criticized for not being sufficiently authentic and urged to reveal their true selves. But any efforts to demonstrate authenticity prompt the news media to point out that the candidate is acting strategically and is therefore actually still inauthentic. This coverage in turn motivates further efforts to reveal the “real” person, and the pattern then repeats.

Mrs. Clinton has gone through this cycle many times, which leads to headlines like “The Making of Hillary 5.0” and “Re-re-re-introducing Hillary Clinton.” Consider, for instance, a recent column by The Washington Post’s Dana Milbank, who criticized her for “the latest of many warm-and-fuzzy makeovers — perhaps the most transparent phoniness since Al Gore discovered earth tones.” He calls for Mrs. Clinton to “shed those who orchestrate these constant makeovers” so she can “be spontaneous — and regain some semblance of her authentic self.”

This advice isn’t likely to be any more helpful than it was when Mr. Milbank gave it to the 2012 presidential contender Tim Pawlenty (“Republicans should hope Pawlenty finds his authentic voice”). Similarly, Mr. Gore and Mr. Romney tried to recalibrate their public personas to “be themselves” at various points during their campaigns, but doing so did not break the cycle of harsh coverage of their performance.

In the end, candidates like Mrs. Clinton who are labeled inauthentic are unlikely to change those perceptions, while the sincerity of other politicians typically goes unchallenged. Maybe we should stop pretending we can tell the difference.

Representative Sam Farr Ideology & Leadership Score


Court revokes approval of insecticide, citing 'alarming' decline in bees


Yes, the White House also uses name tents


Sen. Mikulski's Support Ensures Iran Deal Will Withstand GOP Challenge






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More Current Events - With Analysis



Senator Barbara Mikulski, Maryland Democrat, to Retire

WASHINGTON — Senator Barbara A. Mikulski, the animated and occasionally irascible Democrat from Maryland who rose from being a community organizer to become the longest-serving woman in Congress, announced on Monday that she would retire when her term ends in 2017.

The surprising decision came just a few months after Republicans gained control of the Senate, reducing Ms. Mikulski from chairwoman to of the powerful Appropriations Committee, where she had been the first woman to lead the panel, to ranking member.

Ms. Mikulski, 78, announced her decision to not seek a sixth term on Monday morning in Baltimore. Ms. Mikulski said that she wanted to spend the next two years in Congress focusing on her work instead of raising money and campaigning.

“Do I spend my time raising money or do I spend my time raising hell?” she said at the news conference in the Fells Point neighborhood, the original port area of Baltimore, noting her sometimes combative legislative style that has served her well over decades in a body that has become increasingly partisan and gridlocked.

Her decision comes at a time when Maryland Democrats are struggling to refocus after a shocking loss of its governorship to Republicans last year.

“Every day, I want to wake up thinking about you, the little guys and gals, the watermen, automobile workers, researchers, small-business owners and families,” Ms. Mikulski said Monday. “I want to give you 120 percent of my time with all of my energy focused on you and your futures.”

Ms. Mikulski, a former social worker who climbed through Maryland’s political system over the course of several decades, served as a mentor to women of both parties, organizing monthly dinners to talk work and family. She was one of only two women in the Senate when she took office in 1987, and used that experience to build a base of female power in the Capitol.

“To me, she has been an extraordinary role model, a wonderful mentor, and a close friend,” said Senator Susan Collins, Republican of Maine, and one of the 20 women serving in the Senate. “I will miss her strong leadership, good humor, intelligence and integrity. The Senate is a better place for her having served here.”

Among potential replacements for Ms. Mikulski — who handily won re-election the last time she ran — are Representatives Chris Van Hollen, Elijah E. Cummings and Donna Edwards, although the party also could try to press Martin O’Malley, the former Maryland governor who is considering a White House bid in 2016, to run for the seat.

There will no doubt be some pressure on the Democratic state party to find another woman to run. Maryland does not have an African-American elected to state office, a hope dashed last year when Lt. Gov. Anthony G. Brown was beaten in an upset by Republican Larry Hogan in the race for governor.

But the fact that Ms. Mikulski served so long and the absence of a Democrat in the governor’s office could make the process a bit of a free for all. “There is, in some sense, pent up demand among a lot of people,” said John T. Willis professor of government and public policy University of Baltimore. “There could be a real domino effect and when you say, ‘Who is the ideal demographic of the candidate?’ there is no one who can control that. I think it is totally wide open.”

At least one Republican — Representative Andy Harris — is very likely to consider a run.

Ms. Mikulski was elected to the House in 1976 and to the Senate a decade later. In 2012, she surpassed Representative Edith Nourse Rogers, a Republican from Massachusetts, as the longest-serving woman in Congress.

Ms. Mikulski was devoted to increasing the number of female Democrats in Congress, and maintaining an informal working group of women from both parties in the Senate, a rarefied group. Senator Barbara Boxer, Democrat of California, has said she too will not seek another term when her current one ends in 2016.

“There are more women than before,” said Julian E. Zelizer a professor of History and Public Affairs at Princeton University and expert on Congress. “But it’s certainly not representative of the general population and the number of female senators in leadership positions is meager. The Senate simply doesn’t look like the America and that only intensifies the distance between the citizenry and this institution.”

While Ms. Mikulski — who kept her mother’s plain kitchen table in her elegant hideaway off the Senate floor — worked with bipartisan flare on bills and the Senate floor, her ideas and politics remained firmly grounded in the liberal orthodoxy that has defined Maryland politics for years, especially in its urban areas.

“Thanks to her leadership,” said President Obama in a statement Monday, “more women excel in their careers, more children have access to quality education, more families have health insurance and more people are treated fairly under the law.”

Supreme Court Refuses To Block Arizona Driver's Licenses For 'Dreamers'

The Supreme Court in Washington, D.C., voted against Arizona's appeal, which would have allowed a state ban on driver's licenses for young undocumented immigrants.

Arizona hoped an appeal to the U.S. Supreme Court would prevent the state from having to grant driving permits to young undocumented immigrants, also known as "dreamers," who entered the country as children. A federal appeals court ruled in July of this year that Arizona must start issuing the licenses to dreamers, who under Obama administration policy are permitted to remain in the United States.

NPR's Nina Totenberg reported on the Supreme Court's Wednesday decision and the background of the legal dispute:

"When Arizona refused to allow dreamers to get driver's licenses, a group of these young adults challenged the action in court. A federal appeals court ruled that since the dreamers were likely to prevail, the state must go ahead and grant the licenses while the case is litigated. Arizona then appealed to the Supreme Court, asking the justices to block that order."

The court's decision, she says, ultimately did not go in the state's favor.

"The justices, by a 6-to-3 vote, refused to intervene, at least for now. The three dissenters were Justices Scalia, Thomas and Alito."

The state has been fighting for more than two years to deny the licenses, beginning with an executive order by Republican Gov. Jan Brewer in August 2012. The Arizona Republic published a timeline of the state's legal actions surrounding the issue, showing Brewer issued the order on the same day President Obama's Deferred Action for Childhood Arrivals program took effect. The program allows those undocumented immigrants to stay in the U.S. for two years in order to apply for immunity.

The Tucson Sentinel reported in November that a three-judge federal panel ruled that the state's actions to deny licenses to dreamers was illegal and in violation of the president's deferred action program.

"Over the summer, a three-judge panel said there was no legitimate interest in treating the Dreamers differently. Arguing that the state's policy appears to be motivated by animosity to the young immigrants and is likely unconstitutional, the court ordered an injunction blocking Gov. Jan Brewer's 2012 executive order.

" 'We discern no rational relationship between defendants' policy and a legitimate state interest,' wrote Judge Harry Pregerson for the panel."

The Supreme Court's refusal to intervene clears the way for as many as 22,000 dreamers in Arizona to obtain legal permits to drive.


California adopts college sex crime rule

California has become the first US state to require students on state-funded campuses to have clear, active consent before all sexual activity.

Governor Jerry Brown signed the "yes means yes" bill, which advocates say will change the perception of rape.

The legislation stipulates that voluntary agreement, rather than lack of resistance, defines consent.

In January President Obama launched an initiative to combat sexual assault, particularly on college campuses.

"Yes means yes" is the first law in a US state to make the language of affirmative consent a central principle of school sexual assault policies.

The rule defines consent as "an affirmative, conscious and voluntary agreement to engage in sexual activity."

Lawmakers say, however, that consent can be non-verbal, if it is unambiguous.

The aim is to improve the way that campuses deal with accusations of sexual assault, and to challenge the notion that victims of sexual crimes need to have resisted assault in order to have valid complaints.

The legislation also says that silence or a lack of resistance do not constitute consent. Under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent.

Sofie Karasek, an activist from the University of California-Berkeley told San Jose Mercury News that she believed the bill would change the cultural perception of rape.

"There's this pervasive idea that if it's not super violent then it doesn't really count," she said.

However critics say that the new law dangerously expands the definition of assault.

The National Coalition For Men condemned the bill as "misandric" (man-hating), saying it "gives license to false accusations, denies the accused due process, will cost the state hundreds of millions of dollars in law suits and sets the stage for ruining innocent lives."

The Department of Education has named dozens of colleges and universities under investigation for mishandling sexual assault cases.

The US estimates one in five women is sexually assaulted while at university.

Why Police Don't Need Warrants to Snoop With Drones

Imagine that you lived in a house with a relatively private backyard: fences on all three sides, trees around the perimeter, and no easy way for the neighbors to peek in. Say you're out there playing with your kids, or sunbathing, or consummating a romantic encounter in a hot tub that, let's be honest, you rarely use. If I, intrepid journalist, were to appear overhead in a helicopter with the specific intent of peering down onto your property, you'd be justified in thinking that I violated your reasonable expectations of privacy. But your common-sense notions would be at odds with America's mixed-up Fourth Amendment jurisprudence.

"In the 1989 case Florida v. Riley, the U.S. Supreme Court ruled that since airplanes and helicopters often fly over private property, citizens do not have a reasonable expectation of privacy that their activities will not be observed from the air," Ronald Bailey explains in Reason. "Consequently, the police were permitted use of evidence obtained without a search warrant from helicopter observation of a greenhouse in which they suspected marijuana was being grown."

At the time, aerial surveillance was at least constrained in practice by the significant cost of flying a helicopter. But today, at the dawn of the cheap-drone era, precedents like the one set in 1989 pose a novel threat to privacy rights. Hence the effort by California lawmakers to pass added protections into law:

Earlier this month the California State Assembly voted to require police to obtain warrants to use drones for surveillance except in exigent circumstances. Now the State Senate has handily passed the legislation with a 25 to 8 vote.

If Governor Jerry Brown signs this law when it crosses his desk, the Golden State will have struck the right balance: permitting drone surveillance in cases where police obtain an individualized warrant, while insisting on privacy rights consistent with the original understanding of the Fourth Amendment, not the diminished version that War on Drugs jurisprudence has given us.

Reuters reports there is opposition to the bill from the public-employee unions that represent law enforcement, as well as the Los Angeles District Attorney's office, which calls the law "an inappropriate attempt to impose search and seizure requirements on California law enforcement agencies beyond what is required by the 4th Amendment." Without conceding that this law goes beyond the Fourth Amendment, the district attorney's argument is notably at odds with the notion that the Bill of Rights was a partial, incomplete articulation of the minimum rights owed a free people, not an upper bound on protecting liberty. Privacy-loving residents of other states should urge their legislators to follow suit.

This article available online at:


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"...the most important social divide today is between a well-educated America that is marked by economic openness, traditional family structures, high social capital and high trust in institutions, and a less-educated America that is marked by economic insecurity, anarchic family structures, fraying community bonds and a pervasive sense of betrayal and distrust."

David Brooks - Time for a Realignment

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These 62 senators represent about one-fourth of the people in the United States.
So do these 6 senators.

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(states in gray allow people convicted of domestic violence to purchase guns)

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Why Republicans Can’t Relax

They must survive a permanent campaign environment in overdrive—and that also explains why so little is getting done.

If the definition of insanity is trying the same thing over and over and expecting a different result, then House Republicans might look potty. On Friday, the House voted for the 40th time to dismantle the Affordable Care Act. Though each week presents new reasons to not like the bill—premiums up 40 percent in Ohio—the votes are as pointless as ever because the legislation isn’t going anywhere. But this isn't as insane as it looks because the goal isn’t repealing the legislation. The vote is entirely symbolic. The conservative base likes it and we are heading into an off-year election where the base is important. (Sen. Mike Lee is raising money from his effort to kill the bill.) 

But while House Republicans can pass bills that do nothing, they could not pass an appropriations bill, which is a basic requirement of being in charge of the place. House leaders had to pull the vote on an appropriations bill for transportation and housing at the last minute on Wednesday because they could not find the votes. The spending cuts were too deep for almost all Democrats and even some Republicans. Conservatives also voted against it for not cutting enough. Mix that opposition together and the effort went THUD, the appropriate shorthand used to refer to the bill (Transportation, Housing, and Urban Development). 

When you spend your time doing base maintenance and not basic maintenance, something has gotten out of whack. But it's all about maintaining your base more than ever in Washington these days, whether it's your ideological base or your fundraising base. The more time you spend raising money and fighting off primary challenges, the less time and inclination a lawmaker has for governing. Not coincidentally, Congress takes its mid-year break having passed the fewest laws in its history. Congressional approval has been so low for so long the store of metaphors describing how low it has fallen is bankrupt, too.


The money story is a familiar one. Lawmakers may not be highly productive when it comes to creative solutions or passing bills, but they are productive when it comes to raising money. Politico did an analysis this week which showed that Senate incumbents running for re-election in 2014 are building up their war chests faster and larger than ever before. If you are raising that much money, you're not doing your day job. The hunt for money also infects your day job because you are more inclined to do what your money backers want. When you're stooped in a permanent grovel, it's hard to straighten up. 

It's not just the fundraising requirements that have moved candidates to election mode earlier. If you define yourself or your opponent early, you can make your job easier later. Or, you can scare them out of the race with a robust set of early attacks. That is how Senate Minority Leader Mitch McConnell scared actress/activist Ashley Judd from running. To be ready to pounce, you've got to start your next campaign the day you win your seat.

Candidates can't relax. Republican Sen. Mike Enzi of Wyoming had only raised $1 million because he thought he was safe this cycle. Now he faces Liz Cheney, daughter of Vice President Dick Cheney, in a GOP primary. Cheney has a huge group of donors she can tap. (Many of them live in Virginia, where she was a longtime resident before moving to Wyoming to run for Senate.)

But perhaps the more important takeaway from the Enzi race is that no one is safe on the Republican side. Sen. Enzi has a conservative voting record, but that's not enough. Conservatives want a pugilist for the cause, and they have picked Cheney. It's just one of the ways that the Senate is beginning to resemble the rough-and-tumble House. 

The fear of an electoral ejection has moved into the twitch muscles. Everyone must be on the lookout. The old cliche is that an incumbent either runs scared or runs unopposed, but now GOP candidates have to stay in a perpetual state of fear, even if they are unopposed. You might get a challenger any day, and the old barriers to entry don't stop the challenges.

Politicians have always been acted politically, but there were holidays. After elections you could vote your conscience, provided you had one. Or seniority and institutional structure allowed you to attend to long-term problems free from the push-button will of the people. Being in Senate leadership isn’t enough for Mitch McConnell, for example. He now has a Tea Party challenger. Being the party leader in Washington doesn't mean what it used to when Washington is out of favor. Young bucks in the Senate who could help neutralize the Tea Party threat to McConnell are not stepping in to protect him. Sens. Mike Lee, Ted Cruz, and Ron Johnson all refused to say whether they were backing their leader against his challenger. In the old days they would have backed him to grease their ascent in the Senate. But they can do that on their own. They get their donations from the grassroots or conservative billionaires, so they're not beholden to K Street. They don't need McConnell's entre to the lobbyists club. 

McConnell probably won’t get turned out of office—he’s a fierce political warrior—but he’s not going to take any risks either. He’s certainly not going to work hard to extend his hand in a fit of bipartisanship; he’s got to keep his base happy. 

Spread this phenomenon out across all Republicans and it’s not a recipe for getting much done. Activist groups know this, which means if they can back a more conservative opponent, they can keep lawmakers in line. The illustrative tale is the behavior of Sens. Bob Bennett and Orrin Hatch of Utah. Bennett lost his seat, for among other things, working toward compromise with Democrats. Hatch once had that reputation, too, but faced with a possible challenge he moved fast and hard to the right. He is now such a sterling example of how to avoid a primary challenge, other senators use his campaign as a model. 

Speaker Boehner says he can pass the THUD bill when the House returns in the fall. He could do so by increasing the funding levels to make it more palatable to moderate Republicans and maybe some Democrats. That would anger the grassroots focused on reducing the size of government. They are wary that Boehner, who likes to cut spending but also needs to run the place, might capitulate. If the House speaker can't find a solution, this problem will face him on a host of appropriations bills, a debt limit agreement, and immigration—bills we might want to relabel KERPLUNK, SPLAT, and CRASH.

Justices Allow Police to Take D.N.A. Samples After Arrests

WASHINGTON — Police may take D.N.A. samples from people arrested for serious crimes, the Supreme Court ruled on Monday in a 5-to-4 decision.

“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “taking and analyzing a cheek swab of the arrestee’s D.N.A. is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer and Samuel A. Alito Jr. joined the majority opinion.

Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement.

“Make no mistake about it: because of today’s decision, your D.N.A. can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” he said.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the dissent. The case arose from the collection of D.N.A. in 2009 from Alonzo Jay King Jr. after his arrest on assault charges in Wicomico County, Md. His D.N.A. profile, obtained by swabbing his cheek, matched evidence in a 2003 rape case, and he was convicted of that crime. The Maryland Court of Appeals ruled that a state law authorizing D.N.A. collection from people arrested but not yet convicted violated the Fourth Amendment’s prohibition of unreasonable searches.

Collecting D.N.A. from people convicted of crimes was not at issue in the case, Maryland v. King, No. 12-207. The question was, rather, whether the Fourth Amendment allowed collecting it from people who have merely been arrested and so are presumed innocent.

Nevada buses hundreds of mentally ill patients to cities around country

Over the past five years, Nevada's primary state psychiatric hospital has put hundreds of mentally ill patients on Greyhound buses and sent them to cities and towns across America.

Since July 2008, Rawson-Neal Psychiatric Hospital in Las Vegas has transported more than 1,500 patients to other cities via Greyhound bus, sending at least one person to every state in the continental United States, according to a Bee review of bus receipts kept by Nevada's mental health division.

About a third of those patients were dispatched to California, including more than 200 to Los Angeles County, about 70 to San Diego County and 19 to the city of Sacramento.

In recent years, as Nevada has slashed funding for mental health services, the number of mentally ill patients being bused out of southern Nevada has steadily risen, growing 66 percent from 2009 to 2012. During that same period, the hospital has dispersed those patients to an ever-increasing number of states.

By last year, Rawson-Neal bused out patients at a pace of well over one per day, shipping nearly 400 patients to a total of 176 cities and 45 states across the nation.

Nevada's approach to dispatching mentally ill patients has come under scrutiny since one of its clients turned up suicidal and confused at a Sacramento homeless services complex. James Flavy Coy Brown, who is 48 and suffers from a variety of mood disorders including schizophrenia, was discharged in February from Rawson-Neal to a Greyhound bus for Sacramento, a place he had never visited and where he knew no one.

The hospital sent him on the 15-hour bus ride without making arrangements for his treatment or housing in California; he arrived in Sacramento out of medication and without identification or access to his Social Security payments. He wound up in the UC Davis Medical Center's emergency room, where he lingered for three days until social workers were able to find him temporary housing.

Nevada mental health officials have acknowledged making mistakes in Brown's case, but have made no apologies for their policy of busing patients out of state. Las Vegas is an international destination and patients who become ill while in the city have a right to return home if they desire, the state's health officer, Dr. Tracey Green, told Nevada lawmakers during a hearing last month.

She and others insist that the vast majority of patients they are discharging to the Main Street bus station are mentally stable and have family members, treatment programs or both waiting for them at the end of their rides.

That was not true in Brown's case. His papers from Southern Nevada Adult Mental Health Services read: "Discharge to Greyhound bus station by taxi with 3 day supply of medication" and provided a vague suggestion for further treatment: "Follow up with medical doctor in California." Brown said staff at Rawson-Neal advised him to call 911 when he arrived in Sacramento.

Nevada Health and Human Services Director Michael Willden told lawmakers last month that while health officials "blew it" in their handling of Brown, an internal investigation found no pattern of misconduct.

But an investigation by the Nevada State Health Division documented several other instances from a small sampling of cases in February in which the state hospital violated written rules for safely discharging mentally ill patients.

Other apparent violations surfaced during The Bee's investigation.

At least two patients from the Nevada system arrived in San Francisco during the past year "without a plan, without a relative," said Jo Robinson, director of that city's Behavioral Health Services department.

"We're fine with taking people if they call and we make arrangements and make sure that everything is OK for the individual," Robinson said. "But a bus ticket with no contact, no clinic receptor, anything, it's really not appropriate."

Robinson said she viewed the practice as "patient dumping," and has reported it to federal authorities. "It's offensive to me that they would show this lack of care for a client," she said.


Practice called risky



Nevada mental health officials did not respond to repeated requests for phone interviews for this story, nor would they address a list of emailed questions about the origins of the busing policy and the safety protocols in place.


Southern Nevada Adult Mental Health Services, the agency that oversees Rawson-Neal, maintains detailed written policies for transporting patients "to their home communities," with the stated goal of providing more appropriate care by the most economical means possible.

The policy includes a special section on "Travel Nourishment Protocol," specifying the number of bottles of Ensure nutritional supplement the patient should receive for the bus trip – essentially six per day.

Staff members are supposed to fill out a "Client Transportation Request" form, which includes questions about whether the patient is willing to go, whether housing or shelter has been verified, and the cost of the trip.

The written policy calls for staff to confirm that a patient has housing or shelter available "and a support system to meet client at destination." They are to provide information about "mental health services available in the home community."

Interviews with health officials in California and numerous other states indicate Nevada's practices are unusual. None of the 10 state mental health agencies contacted by The Bee said that placing a psychiatric patient on a bus without support would be permissible. And none recalled being contacted by Rawson-Neal to make arrangements for a patient coming from Nevada.

In California, where most public mental health treatment is overseen at the county level, agencies contacted by The Bee said they rarely bus patients and that Nevada's practices seem out of step with the standard of care.

Several described the practice as risky, even if patients have someone waiting for them at the end of their journeys.

"Putting someone whose mental illness makes them unable to care for themselves alone on a bus for a long period of time could be absolutely disastrous," said Dorian Kittrell, executive director of the Sacramento County Mental Health Treatment Center.

Patients could suffer relapses during their trips and potentially harm themselves or other people, said Kittrell and others. They could become lost to the streets or commit crimes that land them in jail.

"The risk is just too great," said Dr. Marye Thomas, chief of behavioral health for Alameda County.

Southern Nevada Adult Mental Health Services has had an ongoing contract with Greyhound since July 2009, said bus company spokesman Timothy Stokes.

Stokes said he was unaware of any serious incidents involving mentally ill patients from Nevada. He said Greyhound has contracts with "a number" of hospitals around the country, but declined to identify them.

"We take it on good faith that the organization is going to make certain that patients are not a risk to themselves or others," he said.

Still, officials in several of California's largest counties said they rarely, if ever, bus patients out of state.

"We don't do it, we never will do it, and we haven't done it in recent memory, meaning at least 20 years," said David Wert, public information officer for San Bernardino County. Rawson-Neal has bused more than 40 patients to that county since July 2008.

Los Angeles County officials said they have not bused a single patient out of state during the past year, and when they have done so in the past they have supplied chaperones. In the past five years, L.A. County has received 213 people from the Nevada hospital, according to The Bee's review, more than any place in the country.

Likewise, in Riverside County, sending patients out of state "happens very infrequently upon request of the family," said Jerry Wengerd, head of the county's Department of Mental Health. "A staff member accompanies the client and it is usually by air." Nevada bused 20 patients to Riverside in the period reviewed.

Sacramento County bought bus tickets for five patients during the past year, Kittrell said. In all cases, he said, facility staff confirmed before patients departed that a family member or friend would meet them at their destinations, and provided referrals for treatment.

Organizations that advocate for mentally ill people said Nevada's busing numbers seem unjustifiably high.

DJ Jaffe, executive director of Mental Illness Policy Org., a nonprofit think tank, said his group often hears anecdotally about patients being "dumped" from one county to another.

"Discharging severely mentally ill patients inappropriately is policy in this country," Jaffe said. "But getting rid of them altogether by busing them out of state is, I think, rare. I am shocked by these figures. It seems to be almost routine in Nevada."

After California, Arizona has received the most patients by bus from Nevada, at more than 100 over the five years.

But Cory Nelson, acting deputy director for the Arizona Department of Health, cautioned against drawing conclusions about Nevada's practices based solely on number of bus tickets issued. In many cases, Nelson said, relatives could have agreed to house patients or made treatment arrangements before the clients left Las Vegas.

In rare cases, Nelson said, a hospital can find itself in a Catch-22 situation when a patient no longer needs to be in a hospital but refuses to cooperate with a discharge plan. "It kind of leaves a hospital in a tough situation," he said.

Still, the sheer number of patients bused from the Nevada hospital "does seem pretty high," he said.


'A tsunami situation'



Several people interviewed said the numbers might be explained in part by the unusual nature of Las Vegas.


"As the whole country no doubt knows, Vegas is a pretty unique place," said Dr. Lorin Scher, an emergency room psychiatrist with UC Davis Health System.

The city's entertainment and casino culture draws people from all over the world, Scher noted, including the mentally ill.

"Many bipolar patients impulsively fly across the country to Vegas during their manic phases and go on gambling binges," he said. "Vegas probably attracts more wandering schizophrenic people" who are attracted to the warm weather, lights and action, he added.

"I am by no means defending their practices," he said. "It certainly gives cause for concern. But it's one possible explanation."

Stuart Ghertner, former director of Southern Nevada Adult Mental Health Services, cited other possible reasons.

He said Rawson-Neal has been under siege for years because of state budget cuts, a steady increase in poor people needing mental health services in the Las Vegas area and a revolving door of administrators.

He noted the city had a disproportionate number of people displaced by the housing and mortgage meltdown of a few years ago.

"The casino boom was over, people were losing their jobs and their homes. They were stressed and they wound up in a mental health crisis," Ghertner said.

Between 2009 and 2012, Nevada slashed spending on mental health services by 28 percent to address budget deficits, according to data collected by the National Alliance on Mental Illness. Even before those cuts, Nevada fell well below the national average in spending on mental health services: In 2009, it spent $64 per capita on such services compared with a national average of about $123, according to the study.

"You're looking at a tsunami situation," said Ghertner, a psychologist who resigned last year after five years as agency director. "There is more pressure to turn patients over faster, and fewer programs (in which) to place them. Perhaps busing them became the easier solution."

It also is cheaper, he noted. Southern Nevada Adult Mental Health Services spent a total of $205,000 putting patients on Greyhound buses during the past five years, according to The Bee analysis. The state hospital admits about 4,000 patients a year to its inpatient unit, and inpatient care runs around $500 per day per client, Ghertner said.

He said he was aware during his tenure that Rawson-Neal was busing patients out of state but that he thought the practice was rare.

At the time, "I had 800 employees and a $106 million budget," he said. Ghertner regularly reviewed numbers pertaining to admissions, length of stay and other issues at the hospital, but patient busing was never on his radar, he said.

"I'm embarrassed to say that this practice was going on to this degree under my leadership," he said. "I had no idea. It just never came up."

Ghertner said the state mental hospital has been under stress since it opened in 2006, turning over five hospital directors since that time. That instability has taken a toll, he said.

"This busing issue is a symptom that reflects that the care there is not quality care," he said. "Things clearly are being missed."

Willden, Nevada's Health and Human Services director, said during last month's legislative hearing that policies have been tightened and disciplinary actions taken to ensure that patients are discharged only after the hospital confirms care and treatment at their planned destinations. The hospital administrator, Chelsea Szklany, now must approve all bus discharges ordered by medical staff, he said.

"Southern Nevada Adult Mental Health Services is committed to providing quality mental health services to its patients," said spokeswoman Mary Woods in an emailed statement.

But investigations continue into the agency's practices.

Rawson-Neal could lose vital federal funding pending an ongoing probe by the federal Center for Medicare and Medicaid Services. California state Senate President Pro Tem Darrell Steinberg has written a letter expressing outrage to U.S. Secretary of Health and Human Services Kathleen Sebelius.

The hospital's discharge practices also have prompted a call for action by a member of the U.S. Commission on Civil Rights. Commissioner David Kladney called for a broad investigation by Nevada's governor and Legislature.

"As a Nevadan, I am ashamed that my state is failing in its duty toward the neediest residents," Kladney said. Nevada, he said, appears to be "simply hoping that other states will shoulder the responsibility."

Call The Bee's Cynthia Hubert, (916) 321-1082. Follow her on Twitter @cynthia_hubert. Bee researcher Pete Basofin contributed to this report.

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So You Think You Know the Second Amendment?

Does the Second Amendment prevent Congress from passing gun-control laws? The question, which is suddenly pressing, in light of the reaction to the school massacre in Newtown, is rooted in politics as much as law.

For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” The courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.

Enter the modern National Rifle Association. Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup d’état at the group’s annual convention in 1977 brought a group of committed political conservatives to power—as part of the leading edge of the new, more rightward-leaning Republican Party. (Jill Lepore recounted this history in a recent piece for The New Yorker.) The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”

But the N.R.A. kept pushing—and there’s a lesson here. Conservatives often embrace “originalism,” the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a “living” constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. (Reva Siegel, of Yale Law School, elaborates on this point in a brilliant article.)

The re-interpretation of the Second Amendment was an elaborate and brilliantly executed political operation, inside and outside of government. Ronald Reagan’s election in 1980 brought a gun-rights enthusiast to the White House. At the same time, Orrin Hatch, the Utah Republican, became chairman of an important subcommittee of the Senate Judiciary Committee, and he commissioned a report that claimed to find “clear—and long lost—proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.” The N.R.A. began commissioning academic studies aimed at proving the same conclusion. An outré constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.

And so, eventually, this theory became the law of the land. In District of Columbia v. Heller, decided in 2008, the Supreme Court embraced the individual-rights view of the Second Amendment. It was a triumph above all for Justice Antonin Scalia, the author of the opinion, but it required him to craft a thoroughly political compromise. In the eighteenth century, militias were proto-military operations, and their members had to obtain the best military hardware of the day. But Scalia could not create, in the twenty-first century, an individual right to contemporary military weapons—like tanks and Stinger missiles. In light of this, Scalia conjured a rule that said D.C. could not ban handguns because “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”

So the government cannot ban handguns, but it can ban other weapons—like, say, an assault rifle—or so it appears. The full meaning of the court’s Heller opinion is still up for grabs. But it is clear that the scope of the Second Amendment will be determined as much by politics as by the law. The courts will respond to public pressure—as they did by moving to the right on gun control in the last thirty years. And if legislators, responding to their constituents, sense a mandate for new restrictions on guns, the courts will find a way to uphold them. The battle over gun control is not just one of individual votes in Congress, but of a continuing clash of ideas, backed by political power. In other words, the law of the Second Amendment is not settled; no law, not even the Constitution, ever is.

Supreme Court Agrees to Hear Two Cases on Gay Marriage

WASHINGTON — The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. Another case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.

The court’s move comes against the backdrop of a rapid shift in public attitudes about same-sex marriage, with recent polls indicating that a majority of Americans support allowing such unions. After last month’s elections, the number of states authorizing same-sex marriage increased by half, to nine.

The court’s docket is now crowded with cases about the meaning of equality, with the new cases joining ones on affirmative action in higher education and the future of the Voting Rights Act of 1965. Decisions in all of those cases are expected by June.

The new California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California’s voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages.

A federal judge in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed.

A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, also in San Francisco, affirmed the decision. But the majority relied on narrower grounds that seemed calculated to avoid Supreme Court review or, at least, attract the vote of the presumed swing member of that court, Justice Anthony M. Kennedy.

Judge Stephen R. Reinhardt, writing for the majority, relied heavily on a 1996 majority opinion from Justice Kennedy in Romer v. Evans, which struck down a Colorado constitutional amendment that had banned the passage of laws protecting gay men and lesbians. The voter initiative in California, known as Proposition 8, had done something similar, Judge Reinhardt wrote.

That reasoning, he added, meant that the ruling was confined to California.

“We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts,” he wrote.

“For now,” he said, “it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state Constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.”

The Supreme Court has several options in reviewing the decision. It could reverse it, leaving California’s ban on same-sex marriage in place unless voters there choose to revisit the question. It could affirm on the narrower theory, which would allow same-sex marriage in California but not require it elsewhere. Or it could address the broader question of whether the Constitution requires states to allow such marriages.

The second case the court agreed to hear, United States v. Windsor, No. 12-307, challenges a part of the Defense of Marriage Act of 1996. Section 3 of the law defines marriage as between only a man and a woman for purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)

The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who were married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of some $360,000 that a spouse in an opposite-sex marriage would not have had to pay.

Ms. Windsor sued, and in October the federal appeals court in New York struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one in May from a court in Boston. The New York decision was the first from a federal appeals court to say that laws treating same-sex couples differently must be subjected to heightened judicial scrutiny.

The Windsor case made its way the Supreme Court unusually quickly because the parties had filed an appeal from the trial court’s decision in the case, also striking down the law, even before the appeals court had ruled.

There was reason to think that Justice Elena Kagan was not free to hear an appeal from the Boston case because she had worked on it or a related case as United States solicitor general. The current solicitor general, Donald B. Verrilli Jr., provided the court with a number of other options, including Windsor, probably partly to make sure a case of such importance could be heard by a full nine-member court.

The Obama administration’s attitude toward same-sex marriage and the 1996 law has shifted over time. Until last year, the Justice Department defended the law in court, as it typically does all acts of Congress. In February 2011, though, Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that the law was unconstitutional and unworthy of defense in court, though he added that the administration would continue to enforce the law.

In May of this year, Mr. Obama announced his support for same-sex marriage.

After the Justice Department stepped aside, House Republicans intervened to defend the law. They are represented by Paul D. Clement, a former solicitor general in the Bush administration.

The new case is thus likely to feature a rematch between Mr. Clement and Mr. Verrilli, who were antagonists earlier this year in the arguments over Mr. Obama’s health care law.

Administration Weighs Legal Action Against States That Legalized Marijuana Use

WASHINGTON — Senior White House and Justice Department officials are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.

Even as marijuana legalization supporters are celebrating their victories in the two states, the Obama administration has been holding high-level meetings since the election to debate the response of federal law enforcement agencies to the decriminalization efforts.

Marijuana use in both states continues to be illegal under the federal Controlled Substances Act. One option is to sue the states on the grounds that any effort to regulate marijuana is pre-empted by federal law. Should the Justice Department prevail, it would raise the possibility of striking down the entire initiatives on the theory that voters would not have approved legalizing the drug without tight regulations and licensing similar to controls on hard alcohol.

Some law enforcement officials, alarmed at the prospect that marijuana users in both states could get used to flouting federal law openly, are said to be pushing for a stern response. But such a response would raise political complications for President Obama because marijuana legalization is popular among liberal Democrats who just turned out to re-elect him.

“It’s a sticky wicket for Obama,” said Bruce Buchanan, a political science professor at the University of Texas at Austin, saying any aggressive move on such a high-profile question would be seen as “a slap in the face to his base right after they’ve just handed him a chance to realize his presidential dreams.”

Federal officials spoke on condition of anonymity because they were not authorized to discuss the matter. Several cautioned that the issue had raised complex legal and policy considerations — including enforcement priorities, litigation strategy and the impact of international antidrug treaties — that remain unresolved, and that no decision was imminent.

The Obama administration declined to comment on the deliberations, but pointed to a statement the Justice Department issued on Wednesday — the day before the initiative took effect in Washington — in the name of the United States attorney in Seattle, Jenny A. Durkan. She warned Washington residents that the drug remained illegal.

“In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance,” she said. “Regardless of any changes in state law, including the change that will go into effect on December 6 in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law.”

Ms. Durkan’s statement also hinted at the deliberations behind closed doors, saying: “The Department of Justice is reviewing the legalization initiatives recently passed in Colorado and Washington State. The department’s responsibility to enforce the Controlled Substances Act remains unchanged.”

Federal officials have relied on their more numerous state and local counterparts to handle smaller marijuana cases. In reviewing how to respond to the new gap, the interagency task force — which includes Justice Department headquarters, the Drug Enforcement Administration, the State Department and the offices of the White House Counsel and the director of National Drug Control Policy — is considering several strategies, officials said.

One option is for federal prosecutors to bring some cases against low-level marijuana users of the sort they until now have rarely bothered with, waiting for a defendant to make a motion to dismiss the case because the drug is now legal in that state. The department could then obtain a court ruling that federal law trumps the state one.

A more aggressive option is for the Justice Department to file lawsuits against the states to prevent them from setting up systems to regulate and tax marijuana, as the initiatives contemplated. If a court agrees that such regulations are pre-empted by federal ones, it will open the door to a broader ruling about whether the regulatory provisions can be “severed” from those eliminating state prohibitions — or whether the entire initiatives must be struck down.

Another potential avenue would be to cut off federal grants to the states unless their legislatures restored antimarijuana laws, said Gregory Katsas, who led the civil division of the Justice Department during the George W. Bush administration.

Mr. Katsas said he was skeptical that a pre-emption lawsuit would succeed. He said he was also skeptical that it was necessary, since the federal government could prosecute marijuana cases in those states regardless of whether the states regulated the drug.

Still, federal resources are limited. Under the Obama administration, the Justice Department issued a policy for handling states that have legalized medical marijuana. It says federal officials should generally not use their limited resources to go after small-time users, but should for large-scale trafficking organizations. The result has been more federal raids on dispensaries than many liberals had expected.

Check Your Registration Status:

World War II Vet Caught Up In Florida's Voter Purge Controversy

Bill Internicola, a 91-yar-old World War II veteran, was born and raised in Brooklyn, N.Y., and now lives in Florida's Broward County. He recently received a letter from county elections officials asking him to show proof he was a U.S. citizen or be removed from the voting rolls.

Internicola says he was "flabbergasted."

"To me, it's like an insult," he says. "They sent me a form to fill out. And I filled out the form and I sent it back to them with a copy of my discharge paper and a copy of my tour of duty in the ETO, which is the European Theater of Operations."

Internicola's was one of more than 180,000 names Florida's secretary of state identified from motor vehicle records as possible noncitizens. Several weeks ago, the secretary's office sent county elections supervisors a first batch of some 2,600 names. County officials, who are also preparing for the state's August primary, started sending out letters to suspected noncitizens, saying they had 30 days to prove their citizenship or be removed from the voting rolls.

That's when things started to get hot.


"I think most of us know that what this is about is voter suppression," Democratic Rep. Alcee Hastings said this week at a news conference with Internicola.

Rep. Ted Deutch, a Broward County Democrat who called the news conference, and other Democrats in the state's congressional delegation wrote to Florida Gov. Rick Scott, a Republican, asking him to immediately suspend the voter purge.

"Why is this happening less than three months before an election?" Deutch said. "Why is there only a 30-day period for people to be able to respond? It looks like there is an effort to purge a large number of voters from the rolls whether they're eligible voters or not."

Chris Cate, a spokesman for Ken Detzner, the secretary of state, says his office is working to improve the process — spending about $100,000 to update its records. But even with the new list, he concedes it's likely some eligible voters will be mistakenly identified as noncitizens.

"We certainly don't want anybody to be inconvenienced by the process," Cate says. "But we also believe everyone will understand that it's in the best interests of our election process to make sure only eligible voters can cast a ballot."

Democrats and voting-rights groups say the majority of those targeted by the purge are Hispanics and other minority voters. Last week, a coalition of voting-rights groups sent a letter to Detzner asking him to immediately call a halt to the voter purge because they say it's both unfair and illegal.

"It's in violation of the National Voter Registration Act, which prohibits purging voters within 90 days of a federal election," says Penda Hair, co-director of one of the groups, the Advancement Project. "And the reason it prohibits that is because of what's happening here, which is that such purges create chaos. They create intimidation for voters."

The secretary of state's office says it reads the law differently and plans to continue its efforts to remove ineligible voters from the rolls.

On that front, it's begun a new effort. Florida's top elections officials recently sent to the counties a list of 53,000 people believed to be dead who should be removed from the voter rolls.

That's something county elections officials do routinely, using death notices. Susan Bucher, the supervisor of elections for Palm Beach County, says she held off sending letters to people identified as potential noncitizens because she had questions about the state's methodology. With that experience in mind, she's leery about the new list as well.

"In the situation with the deceased persons, we have no evidence — they just told us about it," she says. "So I'd like to see some documentation so that I can do some research to make sure that that's not faulty also."

Many county elections supervisors, both Democrats and Republicans, are angry about the state pressure to purge voters at a time when they're trying to prepare for Florida's August primary.

Democrats say it's a repeat of the 2000 presidential election, when Secretary of State Katherine Harris oversaw a purge of felons that disenfranchised thousands of eligible voters.

And here's a reminder of why disputes in Florida over voter eligibility are so important: That election, you'll recall, was decided by just 537 votes.

Just How Independent Are Independent Voters?

Lester Wilson doesn't think of himself as a Republican or a Democrat. He's not a card-carrying Libertarian or Green, either.

The one group he does belong to is the 40 percent of Americans who identify as independents — a group now larger than any single political party, according to a recent Gallup survey.

40% Of Americans Identify As Independents

"I like my independent status. I think voting for just one party is a betrayal of my civic duty," says the 38-year-old maintenance worker from Asheville, N.C.

There's a lot of talk this election cycle about how important independents will be in deciding the November presidential election and which candidate will win their votes.

'Closet Partisans'

But exactly how independent are the self-styled independents?

Wilson, for example, has occasionally voted for Republicans on the local level, but he's gone for the Democrat in all but one presidential election. The sole exception was 2004, when he says he voted Libertarian. He even went to the polls in his state's 2008 Democratic presidential primary (and voted for Barack Obama).

He has a lot of company. Research over the years suggests that most independents are what John Petrocik, a political science professor at the University of Missouri-Columbia, calls "closet partisans."

"We talk as though these people are strongly susceptible to the short-term influences of campaigning and the economy, and that they are a massive swing bloc in the electorate," says Petrocik, whose research helped lay the groundwork for the influential 1992 book The Myth of the Independent Voter.


As soon as you press them, they very quickly admit that they prefer one party or another.


"For the most part, none of those things are true," he says.

Wilson, who sees his political autonomy as a civic duty, is an example of someone who has taken to heart the belief that, as Petrocik puts it, "a good citizen is independent-minded and makes up his or her own mind."

"But as soon as you press them, they very quickly admit that they prefer one party or another," he says.

Alan Abramowitz, a political science professor at Emory University in Atlanta, agrees that being an independent is often an important part of a voter's personal identity. "People want to think of themselves as independent, that they don't just vote automatically," he says.

He also thinks there may be a more pragmatic reason why some voters remain unaffiliated: "They don't want to get literature; they don't want to be bothered; they don't want to get phone calls."

Truly independent voters do exist, according to Abramowitz and Petrocik, but they account for just 10 percent to 15 percent of the electorate. "And once you take away those people who aren't going to turn out, you're down to something like 6 percent or 7 percent," Abramowitz says.

Lester Wilson of Asheville, N.C., says he has voted in every presidential election since 1996. He sees his political autonomy as a civic duty.
Courtesy of Lester Wilson

Lester Wilson of Asheville, N.C., says he has voted in every presidential election since 1996. He sees his political autonomy as a civic duty.

In other words, the true swing voters are a pretty small group.

They also haven't been the deciding factor in tight presidential elections that many people might think. In the three most closely contested races of the past 40 years — 1976, 2000 and 2004 — the majority of independents backed the candidate who wound up losing the popular vote. (In 2000, George W. Bush won the independent vote and the White House even though Al Gore won the popular vote by nearly 550,000 votes.)

Myth Of The 'Myth'?

Abramowitz says exit poll data show independents who say they lean toward a particular party — and most of them lean Democratic — follow through in the voting booth.

In 2008, for example, exit polls showed that about 90 percent of those who said they leaned Democratic ended up voting for Barack Obama, while something like 80 percent of the Republican-leaning independents went for Sen. John McCain of Arizona.

But Todd Eberly, a political science professor at St. Mary's College of Maryland, says you have to look at voters' behavior over time, not just at exit poll data in a single election, to get a clear picture of how people really vote.

He says independents who say they lean toward a particular party — especially those who favor Democrats — are actually more likely to switch sides from one election to another.

Some voters might choose not to affiliate with a political party to avoid robocalls or mailings.
Rogelio V. Solis/AP

Some voters might choose not to affiliate with a political party to avoid robocalls or mailings.

"In any given election, yes, they do vote like people who say, 'I'm a strong Republican' or 'I'm a strong Democrat,' " he says. "But if you follow them across time, they are less loyal to that party from election to election.

Eberly says this behavior accounts for the frequent power shifts in Congress.

"The fact that [independents] from one congressional cycle to the next will switch their support adds to the instability in politics right now, where one party cannot hold onto power for much more than one or two election cycles," he says.

Out on the campaign trail, most political strategists have become true believers when it comes to the myth of the independent voter, Abramowitz says. Energizing the base, he says, is more important than attracting the independents — especially for those Republicans chasing their party's nomination in August.

"It doesn't mean you completely ignore those folks," he says, "but they aren't as important to the outcome."

F.D.A. Is Ordered to Restrict Antibiotics’ Use in Livestock

A federal magistrate judge on Thursday ordered the Obama administration to alert drug makers that the government may soon ban the common agricultural use of popular antibiotics in animals because the practice may encourage the proliferation of dangerous infections and imperil public health.

The order, issued by Judge Theodore H. Katz of the Southern District of New York, has the effect of restarting a process that the Food and Drug Administration began 35 years ago in hopes of preventing penicillin and tetracycline, two of the nation’s most popular antibiotics, from losing their effectiveness in humans because of their widespread use in animal feed to promote growth in livestock like chickens, pigs and cattle.

The order comes two months after the Obama administration announced restrictions on agricultural uses of cephalosporins, a critical class of antibiotics that includes drugs like Cefzil and Keflex, which are commonly used to treat pneumonia, strep throat and skin and urinary tract infections. The F.D.A. is expected to issue within days draft rules that would bar the use of penicillin and tetracycline — highly popular in agricultural settings — in animal feed to further growth, the same issue tackled by Judge Katz. A decade ago, the F.D.A. banned indiscriminate agricultural use of a powerful class of antibiotics, called fluoroquinolones, that includes the medicine Cipro.

The judge’s order may accelerate the F.D.A.’s incremental efforts to restrict common agricultural practices that are viewed by microbiologists and other medical researchers as leading to the growth of bacteria that are resistant to common antibiotic treatments, a development that many doctors say has cost thousands of lives.

Antibiotics were the wonder drugs of the 20th century, and their initial uses in both humans and animals were indiscriminate, experts say. Farmers were impressed by the effects of penicillin and tetracycline on the robustness of cattle, chickens and pigs, and added the drugs in bulk to feed and water, with no prescriptions or sign of sickness in the animals.

By the 1970s, public health officials had become worried that overuse was leading to the development of killer infections resistant to treatment. In 1977, the F.D.A. announced that it would begin the process of banning these uses. But the powerful House and Senate appropriations committees passed resolutions urging the F.D.A. not to follow through on these efforts, and the agency retreated.

“In the intervening years, the scientific evidence of the risks to human health from the widespread use of antibiotics in livestock has grown, and there is no evidence the F.D.A. has changed its position that such uses are not shown to be safe,” Judge Katz wrote in his order.

A vast majority of antibiotics used in the United States still goes to treat animals, not humans. Meanwhile, outbreaks of illnesses from antibiotic-resistant bacteria have grown in number and severity.

Environmental and health groups petitioned the F.D.A. in 1999 and 2005 to restart the process to ban the drugs from being overused on farms. In January, the Natural Resources Defense Council, the Center for Science in the Public Interest, the Food Animal Concerns Trust, Public Citizen and the Union of Concerned Scientists filed suit against the F.D.A. On Thursday, Judge Katz ruled that these groups had won their case without need for a trial.

“The rise of superbugs that we see now was predicted by F.D.A. in the ’70s,” said Jen Sorenson, a lawyer for the Natural Resources Defense Council. “Thanks to the court’s order, drug manufacturers will finally have to do what F.D.A. should have made them do 35 years ago: prove that their drugs are safe for human health, or take them off the market.”

Judge Katz ordered the F.D.A. to alert drug manufacturers of its intention to end its approval for popular uses of penicillin and tetracycline to promote growth in animals. The manufacturers can request a hearing to present evidence that these uses are safe. If the companies have such evidence, the drugs can continue to be used as they are in agriculture, the judge wrote.

Siobhan DeLancey, an F.D.A. spokeswoman, would not say whether the government planned to appeal. “We are studying the opinion and considering appropriate next steps,” she said.

At Heart of Health Law Clash, a 1942 Case of a Farmer’s Wheat

WASHINGTON — If the Obama administration persuades the Supreme Court to uphold its health care overhaul law, it will be in large part thanks to a 70-year-old precedent involving an Ohio farmer named Roscoe C. Filburn.

Mr. Filburn sued to overturn a 1938 federal law that told him how much wheat he could grow on his family farm and made him pay a penalty for every extra bushel.

The 1942 decision against him, Wickard v. Filburn, is the basis for the Supreme Court’s modern understanding of the scope of federal power. It is the contested ground on which the health care case has been fought in the lower courts and in the parties’ briefs. And it is likely to be crucial to the votes of Justices Anthony M. Kennedy and Antonin Scalia, who are widely seen as open to persuasion by either side.

“Wickard has become so foundational for generations of lawyers that any plausible understanding of the commerce power must come to terms with it,” said Bradley W. Joondeph, a law professor at Santa Clara University.

Both supporters and opponents of the health care law say the decision helps their side, and for three days starting next Monday, it will be at the center of the arguments before the Supreme Court about the law’s constitutionality.

To hear the Obama administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution’s commerce clause to regulate the choices individuals make in matters affecting the national economy. If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.

Opponents of the law draw a different lesson from Mr. Filburn’s case. They say it set the outer limit of federal power, one the health care law exceeds. It is one thing to encourage farmers to buy wheat by punishing them for growing their own, the argument goes. It is another to require people to buy insurance or face a penalty, as the health care law does.

“There’s a difference between being given an incentive and compulsion,” said Michael A. Carvin, a lawyer for the National Federation of Independent Business and several individuals challenging the law.

Mr. Filburn argued, as do opponents of the health care overhaul, that he was challenging a law that was not authorized by the Constitution, which allows Congress to regulate commerce “among the several states.” A decision against him, Mr. Filburn said, would move the nation toward a centralized government and “nullifications of all constitutional limitations.”

The Supreme Court’s ruling against him was unanimous.

“Even if appellee’s activity be local,” Justice Robert H. Jackson wrote, referring to Mr. Filburn’s farming, “and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”

The Obama administration says the decisions of millions of people to go without health insurance have a similarly significant effect on the national economy by raising other people’s insurance rates and forcing hospitals to pay for the emergency care of those who cannot afford it.

At the time, the reaction to the Filburn decision emphasized how much power it had granted the federal government.

“If the farmer who grows feed for consumption on his own farm competes with commerce, would not the housewife who makes herself a dress do so equally?” an editorial in The New York Times asked. “The net of the ruling, in short, seems to be that Congress can regulate every form of economic activity if it so decides.”

The editorial, like much commentary on the case, seemed to suppose that Mr. Filburn was a subsistence farmer. But in fact he sold milk and eggs to some 75 customers a day, and the wheat he fed to his livestock entered the stream of commerce in that sense, according to a history of the case by Jim Chen, the dean of the law school at the University of Louisville.

In the health care case, the administration has insisted that the overhaul law is a modest assertion of federal power in comparison to the law Mr. Filburn challenged. “The constitutional foundation for Congress’s action is considerably stronger” for the health care law than for the law that the Supreme Court endorsed in 1942, the administration said in a recent brief. The health care law, the brief said, merely “regulates the way in which the uninsured finance what they will consume in the market for health care services (in which they participate).”

Opponents of the law take the opposite view, using an analogy. It is true that the federal government may “regulate bootleggers because of their aggregate harm to the interstate liquor market,” Mr. Carvin wrote in a recent brief. But the government “may not conscript teetotalers merely because conditions in the liquor market would be improved if more people imbibed.”

“Yet the uninsured regulated by the mandate,” the brief went on, “are the teetotalers, not the bootleggers, of the health insurance market.”

For more than 50 years after ruling against Mr. Filburn, the Supreme Court did not strike down any federal laws on commerce clause grounds. But in a pair of 5-to-4 decisions, in 1995 and 2000, the court invalidated two laws, saying the activities that Congress had sought to address — guns near schools and violence against women — were local and noncommercial and thus beyond its power in regulating interstate commerce.

The decisions were part of a renewed interest in federalism associated with Chief Justice William H. Rehnquist, who died in 2005, and Justice Sandra Day O’Connor, who retired in 2006.

Those two justices were still on the court in 2005 when it issued its last major commerce clause decision, Gonzales v. Raich. That decision was 6 to 3 in favor of upholding a federal law regulating home-grown medicinal marijuana.

Chief Justice Rehnquist and Justice O’Connor dissented, as well as Justice Clarence Thomas. But Justices Scalia and Kennedy, who had voted to strike down the laws at issue in the 1995 and 2000 cases, were in the majority.

“The similarities between this case and Wickard are striking,” Justice John Paul Stevens wrote for five members of the court, including Justice Kennedy. “Here, too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.”

Justice Scalia wrote a separate concurrence, also citing Wickard v. Filburn.

“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,” he wrote, in a passage that the Obama administration quoted prominently in a recent brief in the health care case.

Supporters of the health care law say the Raich decision shows that even completely local and noncommercial conduct may be addressed by the federal government as part of comprehensive economic regulation. Opponents counter that marijuana, like wheat, is a tangible commodity that is bought and sold, while a lack of insurance is not an economic activity.

The administration is probably assured of the votes of the court’s four more liberal members, and it needs one more to win the case. How Justices Kennedy and Scalia think about wheat, marijuana, health insurance and Roscoe Filburn may make all the difference.

For N.F.L., Concussion Suits May Be Test for Sport Itself

The long debate over the National Football League’s handling of concussions is reaching the courts in a flurry of lawsuits, raising the possibility that dozens of former players will go before juries to outline the league’s medical practices and describe long-term cognitive problems they say were caused by the sport.

More than a dozen suits, filed since July on behalf of more than 120 retired players and their wives, say that the N.F.L. and in some cases helmet manufacturers deliberately concealed information about the neurological effects of repeated hits to the head. Several suits also say that even if the league did not know about the potential impact of brain trauma sustained on the field, it should have known.

Taken together, the suits filed in courts across the country amount to a multifront legal challenge to the league and to the game itself. While the retired players, including stars like Jim McMahon and Jamal Lewis, face a time-consuming and difficult battle, the N.F.L. will have to spend heavily on lawyers to fend off the chance that juries might award the retired players millions of dollars in damages.

The league must also grapple with unflattering publicity as former players claiming to be hobbled by injuries and, in some cases, suffering from financial problems sue their former employer, the steward of America’s most popular sport. The stakes will only get higher if any of the cases go to trial, where details may emerge about what the N.F.L. knew about concussions and when, how it handled that information, and whether it pushed manufacturers to make the safest helmets possible.

“I don’t think the N.F.L. can consider these cases nuisances,” said Mark Conrad, who teaches sports law at Fordham University. “They will take them seriously because if it goes the wrong way, it could be a bombshell.”

The N.F.L. is no stranger to the courts. In the past few years, it has tangled over merchandising, drug testing and antitrust exemptions. But those issues were largely alien to the average fan and barely slowed the league’s primary mission to put on games.

The notion of retired players telling a jury the league is at least partly liable for their dementia and other cognitive disabilities is an entirely different matter, legal experts say, because the players’ testimonies are bound to get a sympathetic audience and cast a shadow over the league.

“We believe that the long-term medical complications that have been associated with multiple concussions — such as memory loss, impulse anger-control problems, disorientation, dementia — were well documented, and that factually the N.F.L. knew or should have known of these potentially devastating neurological problems, and yet it didn’t take any active role in addressing the issue for players,” said Larry Coben, who represents seven retirees, including McMahon, the quarterback who helped lead the Chicago Bears to a Super Bowl victory in 1986.

Brad Karp, an outside counsel for the league, said: “The N.F.L. has long made player safety a priority and continues to take steps to protect players and to advance the science and medical understanding of the management and treatment of concussions. The N.F.L. has never misled players with respect to the risks associated with playing football. Any suggestion to the contrary has no merit.”

A trial is not imminent, however, and may never occur, legal experts said. The league will try to get the cases dismissed, they said, and the former players must hope a judge will allow the cases to proceed.

In a sign of the high hurdles facing the retired players, the league has successfully convinced at least one federal judge that any claims by the players should be handled under the collective bargaining agreements that they signed during their N.F.L. careers.

The retired players, naturally, disagree. They argue that as retirees, they are no longer party to those collective bargaining agreements and that only since they stopped playing did they unearth evidence that they were not adequately warned of the dangers of concussions.

The debate over this issue may be settled in Philadelphia after the league and many of the plaintiffs ask the Judicial Panel on Multidistrict Litigation, a federal board, to combine all the cases and move them to federal court in the Eastern District of Pennsylvania. The N.F.L. prefers this approach because it allows its lawyers to focus on a single case that will produce a single resolution, and reduce the possibility of inconsistent rulings by different judges.

Assuming the players can persuade a judge to let their case go forward, they will most likely argue that the N.F.L. rejected widely accepted science on head trauma for years, and that the league’s doctors produced research that later was found to be severely flawed.

Several suits note that in 2007, the league distributed a pamphlet to players that said, “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is treated properly.” The league left open the question of “if there are any long-term effects of concussion in N.F.L. athletes.”

The cases also note that in October 2009, Roger Goodell, the commissioner of the N.F.L., was criticized by lawmakers for neglecting the league’s handling of active and retired players with brain injuries. A month later, the two directors of the N.F.L.’s committee studying concussions who were accused by the retired players of whitewashing the issue stepped down.

Only last year, the retired players say, did the N.F.L. begin alerting current players to the long-term effects of concussions. One poster created by the league used words like “depression” and “early onset of dementia.” Another document warned players that repeated concussions “can change your life and your family’s life forever,” a nod to retired players’ wives who have spoken out on the issue.

The league, though, is expected to point out that these publications are part of its continuing efforts to care for players, and that the league provides medical benefits for retired players. The league will also argue that the players knew that the sport was dangerous when they played and yet they did not stop.

“The N.F.L. will try to convince the court that the game is inherently risky,” said Matthew J. Mitten, the director of the National Sports Law Institute at Marquette University. “There is this warrior mentality in the N.F.L. where you play through pain.”

A far murkier obstacle for the players is proving that the concussions they sustained in the N.F.L. caused their current health problems. It will be difficult to prove that any impairment is not a result of head trauma sustained while playing in high school and college.

“The proof problems will be enormous,” said Paul Haagen, the co-director of the Center for Sports Law and Policy at Duke University. “Everyone who has played in the N.F.L. has played in the lower levels and suffered some injuries that are consistent with these.”

The retired players may also have difficulty proving the league deliberately hid information from them. Even if they do, legal experts said, the league will point to the rule changes it made to outlaw spearing and other dangerous practices involving helmets, and the millions of dollars it has spent over the years to study head trauma.

“The problem is there isn’t necessarily a smoking gun,” said Robert Boland, who teaches sports law at New York University. “The N.F.L. will say we found out about it when you did, and we never saw this kind of damage before.”

Opponents Say S.C.'s Voting Law Unfair For The Poor

South Carolina is one of several states that passed laws this year requiring voters to show a government-issued photo ID at the polls. The South Carolina measure still needs approval from the U.S. Justice Department to ensure that it doesn't discriminate against certain voters.

Voting rights advocates say the requirement will be a big burden for some, especially the elderly and the poor, who can have a difficult time getting a photo ID — even in this day and age.

The Bureaucratic Maze

Take the case of sharecropper Willie Blair of Sumter, S.C. Blair, 61, has used that name all his life — it was given to him by his stepfather. It's also the name he had on his Social Security card.

But it turns out that his birth certificate says his real name is Willie Lee McCoy.

This was never a problem, until he recently tried to get a photo ID so he could receive Social Security benefits and vote if the new law goes into effect.

Sharecropper Willie Blair (left) of Sumter, S.C., has used that name all his life, and it was on his Social Security card. But his birth certificate says "Willie Lee McCoy." Blair never went to school and is illiterate. His cousin Raymond Evans (right) tried to help him get an ID so Blair could vote; but Evans says it was a frustrating process.

"And I have been up and down and around and around," says Blair's cousin, Raymond Evans.

Blair never went to school and is illiterate. So Evans has been helping him through a bureaucratic maze that would challenge even the most highly educated.

"You can't get a birth certificate without a Social Security card," says a frustrated Evans. "You can't get a Social Security card without ID. You can't get the ID without either one of these."

Blair's first hurdle was finding out that he needed a photo ID to get a copy of the birth certificate that he needed in order to get a photo ID. Instead, he had to track down copies of his children's birth certificates and numerous other documents to prove his identity. He also had to get the Social Security Administration to change the name it had for him in its files.

Earlier this month, Evans was still trying to figure out how Blair could show proof of residency, which is also required to get a free photo ID from the state's Department of Motor Vehicles. Blair lives with his aunt in a small trailer on a dirt road in Sumter. Everything is in her name.

"He don't have any income to pay any bills," Evans says. "He don't own a bank account because he don't have ID."

A Smooth Process At Voting Time?

Brenda Williams, a local physician who has spent countless hours and thousands of dollars trying to help people — mostly low-income African-Americans — to get IDs says the problem is "widespread."

She says she's seen it all: no birth certificates, certificates with misspelled names and incorrect birth dates, certificates that only say things like "Baby Boy Montgomery." Many in this state were born years ago at home, with the help of a midwife, when paperwork wasn't a big deal, she explains.


You can't get a birth certificate without a Social Security card. You can't get a Social Security card without ID. You can't get the ID without either one of these.


"So here we have a gentleman — decent, honest American citizen — [who] has had to jump through hoops of fire in order to get a photo identification so that he could vote," says Williams.

And why, she asks? Sponsors of voter ID laws here and elsewhere — mostly Republicans — say such laws are needed to make sure that those who come to the polls are who they say they are.

But according to Chris Whitmire, a spokesman for the South Carolina State Election Commission, voter fraud has not been a problem.

"We have no record of or any confirmed case of that in South Carolina in recent history," he says.

Still, Whitmire thinks that those without ID — estimated to be more than 200,000 registered voters statewide — will be able to get it fairly easily, if and when the Justice Department gives the OK. County election offices plan to provide free photo registration cards to those who come in and verbally confirm their date of birth and Social Security number.

Whitmire admits that for those who live a long distance away, it's a hurdle. But, he adds, "It's not a brick wall. I haven't seen the case where that person will be disenfranchised and they have no option to vote."

He also notes that those without ID can always vote by absentee ballot.

Brenda Williams is skeptical that things will work that smoothly. The people she helps have faced many hurdles in their lives.

DMV Says It Has 'Bent Over Backwards'

Later, she joins several other people in song outside a trailer home in nearby Mayesville. Thelma Hodge, who lives there, just received her birth certificate in the mail after trying for five years. She was one of 11 children in her family born with a midwife, and she never had a birth certificate. Hodge always thought she was born in 1942, but her new certificate shows that it was 1941. Still, she's overjoyed. Among other things, she'll be able to vote.

Related NPR Stories

While she's at Hodge's home, Williams calls out to a young man walking by. She asks him if he's registered to vote and has a photo ID from the DMV. He says no, and says he's been trying to get a photo ID, but has been having problems because his name is spelled differently on his birth certificate and his Social Security card.

Williams gives him the name of a lawyer who'll handle the case for free.

Last month, the state offered to drive anyone who needed a ride to the DMV to get their photo ID. Only 21 people took advantage of the one-day offer. Williams says that's because transportation isn't the issue.

But Kevin Shwedo, executive director of the state DMV, says he believes the ID problem isn't as widespread as many people think. He says he wants to make sure that everyone who needs a credential gets one.

"And where we've got those individuals that just need a warm body to help them, we have bent over backwards to try to accommodate them," he says.

In fact, after he heard about the case of Willie Blair, Shwedo sent DMV workers the next day to his aunt's trailer and had her sign an affidavit that Blair lived there so he could get his ID. He got it three days later.

Brenda Williams says that's great for Blair, but that thousands more in the state still need help.

Yes, the Commerce Clause Still Matters...

WHAT a lot of trouble seven words can cause. In 1787 America’s constitution, a model of clarity in so many other ways, gave to Congress the power “to regulate commerce…among the several states”, and lawyers and politicians have been arguing about what that means ever since. Now they threaten a deadly blow to Barack Obama’s proudest achievement (the saving of the economy not having gone quite according to plan).

The “commerce clause” provides the legal justification for the core part of Mr Obama’s health reforms, passed with great celebration on the left in 2010 but now the subject of dozens of lawsuits. Central to Mr Obama’s plan is that insurance companies must offer low-cost and government-subsidised cover to anyone deemed to need it, and that insurers should not be able to discriminate against anyone for being unhealthy. Even with the subsidies, that is onerous: hence the offsetting requirement that everyone be obliged to take out health insurance, which should give the insurers tens of millions of new customers, many of them young and healthy and for that reason not currently bothering to insure themselves.

But can the federal government force people to buy insurance? Mr Obama’s people insist that it can—and that like a lot of other federal laws on taxation and the environment it is permitted by the commerce clause. But no fewer than 28 states, not to mention various other organisations such as the National Federation of Independent Business, have launched legal attacks on the bill, claiming the mandate is unconstitutional. One of the guiding principles of America’s constitution is that powers not explicitly given to the federal government are reserved to the states. For some on the right, who object even to the idea of a federal income tax, the mandate is an old fight reborn. But insurance is more open to doubt than other areas. Car insurance, for example, is a state, not a federal, requirement; in New Hampshire you don’t have to have it.

This week yet another district court (in Pennsylvania) declared the mandate to be unconstitutional; but the real action has already moved to higher judicial levels. So far two federal appeals courts have given inconveniently opposing verdicts. In the meantime, the (mainly Republican) states that oppose Obamacare have been able to use the legal impasse as a perfect excuse for foot-dragging: they have not started work on setting up the subsidy regimes and health-insurance exchanges that will be needed in 2014, when the bill is supposed to come fully into force. American businesses, which will end up footing a large part of the bill, often cite the uncertainty as one reason not to invest at the moment.

Supremes can’t hurry love; they could hurry health

In principle, a federal mandate on health policy does not seem an absurd extension of Leviathan: done simply, it might even mean less government. But this debate will be decided by the American constitution, and, from that perspective, the main issue is speed. The sooner the Supreme Court agrees to hear the case, and delivers its verdict, the better. That will not end the uncertainty altogether, of course; implementation of the 2,400-page bill is fraught, and more lawsuits are sure to follow. But until the largest issue, the mandate, is resolved, the reforms are paralysed.

The Supreme Court showed, in the Bush-Gore stand-off of 2000, that it is capable of acting expeditiously in matters of great national importance. It is time it did so again.

Man Wrongly Convicted: Are Prosecutors Liable?


When prosecutors violate the law to deprive a person of a fair trial, is vindication enough, or should the prosecutors be held liable for damages?

This week, a bitterly divided U.S. Supreme Court all but closed the door to such lawsuits. The 5-4 ruling came in the case of a New Orleans man who served 18 years in prison for a crime he did not commit.

In December of 1984, Raymond Liuzza Jr., the son of a prominent New Orleans business executive, was shot to death in front of his home. Police, acting on a tip, picked up two men, Kevin Freeman and John Thompson.

Thompson denied knowing anything about the shooting, but Freeman, in exchange for a one-year prison sentence, agreed to testify that he saw Thompson commit the crime.

Prosecutors wanted to seek the death penalty, but Thompson had no record of violent felonies. Then, a citizen saw his photo in the newspaper and implicated him in an attempted carjacking — and prosecutors saw a way to solve their problem. John Hollway, who wrote a book about the case, said the solution was to try the carjacking case first.

A conviction in the carjacking case would yield additional benefits in the subsequent murder trial, Hollway observes. It would discredit Thompson if he took the stand in his own defense at the murder trial, so he didn't. And the carjacking would be used against him during the punishment phase of the murder trial.

It all worked like a charm. Thompson was convicted of both crimes and sentenced to death for murder.

An 'Oh My God' Moment

Several years later, four young lawyers at the silk-stocking firm of Morgan Lewis in Philadelphia took on Thompson's case pro bono. But after 10 years and thousands of hours of work, they lost all their appeals, including one at the U.S. Supreme Court. Two of the lawyers, Michael Banks and Gordon Cooney, flew to Louisiana.

"We were literally on our way from telling John that we had failed him as his lawyers and that he was going to die," Banks says. "And we were on our way to tell his mother and his 17-year-old son that they should start planning for the execution."

Banks was driving while his co-counsel checked their office voice mail and learned some astonishing news: Their investigator had unearthed, in microfiche files, a lab report to prosecutors in the carjacking. A swatch of fabric stained with the carjacker's blood had been tested and never produced to the defense.

"It is an 'oh my God' moment," Banks says.

He says that single discovery would unravel both cases.

"We still did not have evidence of Thompson's innocence, but now we knew the DAs had played very, very dirty pool, and we were determined to see if there was other evidence that we could get," he says.

There was plenty.

Further testing would show that the carjacker's blood was Type B; Thompson's was Type O. And, it turned out, one of the prosecutors had years earlier made a deathbed confession to a colleague that he had hidden the blood report from the defense. That confession, too, was kept secret.

To The Supreme Court

All of this would eventually lead to reversal for both convictions, and a new trial on the murder charge. At that trial, yet more evidence would be uncovered and presented to the jury.

Previously undisclosed police reports showed witnesses at the crime scene had described the shooter as 6 feet tall with close-cropped hair. Thompson was 5-feet, 8-inches tall with a huge Afro. The description, in fact, fit not Thompson, but Freeman, the man who had made the deal to testify against Thompson.

In all, there would be 10 pieces of exculpatory evidence that prosecutors failed to turn over to the defense at the first murder trial. At the second trial, a jury acquitted Thompson after just 35 minutes of deliberation.

Thompson then sued New Orleans District Attorney Harry Connick and his office for failure to train prosecutors about their obligation to turn over such evidence to the defense. Connick's office had previously been chastised by the Supreme Court for similar failures. A jury awarded Thompson $14 million in damages. But this week, the U.S. Supreme Court overturned that award.

Justice Clarence Thomas, writing for the five-justice majority, said there was no proof of a pattern of indifference in the DA's office and that prosecutors, unlike police, do not need special training in such matters because they learn the rules in law school.

Justice Ruth Bader Ginsburg took the unusual step of reading her dissent from the bench to underscore her view that the "deliberately indifferent attitude" in the DA's office had created a "tinderbox," where miscarriages of justice were inevitable. Many saw her dissent as a call to Congress to change the law.

'That Is What's Scary'

Thompson insists he's not bitter, saying he can't miss money he never had, but he says he is worried about accountability for prosecutors.

"I'm disappointed that from the Supreme Court ruling ... I didn't make things better. I might have made things worser," he says. "It made them really think they got permission to kill now without being held accountable. That is what's scary."

Connick, the district attorney, feels vindicated by the high court ruling.

"I think that he committed ... a murder, and I think that obviously we thought we had enough evidence to gain a conviction," he says. "So I was delighted that the Supreme Court ruled in our favor."

Private Prison Promises Leave Texas Towns In Trouble


The country with the highest incarceration rate in the world — the United States — is supporting a $3 billion private prison industry. In Texas, where free enterprise meets law and order, there are more for-profit prisons than any other state. But because of a growing inmate shortage, some private jails cannot fill empty cells, leaving some towns wishing they'd never gotten in the prison business.

More From This NPR News Investigation

It seemed like a good idea at the time when the west Texas farming town of Littlefield borrowed $10 million and built the Bill Clayton Detention Center in a cotton field south of town in 2000. The charmless steel-and-cement-block buildings ringed with razor wire would provide jobs to keep young people from moving to Lubbock or Dallas.

For eight years, the prison was a good employer. Idaho and Wyoming paid for prisoners to serve time there. But two years ago, Idaho pulled out all of its contract inmates because of a budget crunch at home. There was also a scandal surrounding the suicide of an inmate.

Shortly afterward, the for-profit operator, GEO Group, gave notice that it was leaving, too. One hundred prison jobs disappeared. The facility has been empty ever since.

A Hard Sell

"Maybe ... he'll help us to find somebody," says Littlefield City Manager Danny Davis good-n aturedly when a reporter shows up for a tour.

The 372-bed Bill Clayton Detention Center is a medium-security prison that is currently sitting empty in Littlefield, Texas.
EnlargeJohn Burnett/NPR

The 372-bed Bill Clayton Detention Center is a medium-security prison that is currently sitting empty in Littlefield, Texas.

Littlefield, Texas

For sale or contract: a 372-bed, medium-security prison with double security fences, state-of-the-art control room, gymnasium, law library, classrooms and five living pods.

Davis opens the gray steel door to a barren cell with bunk beds and stainless-steel furniture.

"You can see the facility here. [It's] pretty austere, but from what I understand from a prison standpoint, it's better than most," he says, still trying to close the sale.

For the past two years, Littlefield has had to come up with $65,000 a month to pay the note on the prison. That's $10 per resident of this little city.

A Resident Burden

Is the empty prison a big white elephant for the city of Littlefield?

"Is it something we have that we'd rather not have? Well, today that would probably be the case," Davis says.

To avoid defaulting on the loan, Littlefield has raised property taxes, increased water and sewer fees, laid off city employees and held off buying a new police car. Still, the city's bond rating has tanked.

The village elders drinking coffee at the White Kitchen cafe are not happy about the way things have turned out.

"It was never voted on by the citizens of Littlefield; [it] is stuck in their craw," says Carl Enloe, retired from Atmos Energy. "They have to pay for it. And the people who's got it going are all up and gone and they left us... "

"...Holdin' the bag!" says Tommy Kelton, another Atmos retiree, completing the sentence.

The Declining Prison Population

The same thing has happened to communities across Texas. Once upon a time, it seems every small town wanted to be a prison town. But the 20-year private prison building boom is over.

Some prisons are struggling outside Texas, too.

Hardin, Mont., defaulted on its bond payments after trying, so far unsuccessfully, to fill its 464-bed minimum security prison. And a prison in Huerfano County, Colo., closed after Arizona pulled out its 700 inmates.

According to the Bureau of Justice Statistics, the total correctional population in the United States is declining for the first time in three decades. Among the reasons: The crime rate is falling, sentencing alternatives mean fewer felons doing hard time and states everywhere are slashing budgets.

The Texas legislature, looking for budget cuts, is contemplating shedding 2,000 contract prison beds. Statewide, more than half of all privately operated county jail beds are empty, according to figures from the Texas Commission on Jail Standards.

"Too many times we've seen jails that have got into it and tried to make it a profitable business to make money off of it and they end up fallin' on their face," says Shannon Herklotz, assistant director of the commission.

The packages look sweet. A town gets a new detention center without costing the taxpayers anything. The private operator finances, constructs and operates an oversized facility. The contract inmates pay off the debt and generate extra revenue.

The economic model works fine until they can't find inmates.

In Waco, McLennan County borrowed $49 million to build an 816-bed jail and charge day rates for bunk space. But today because of the convict shortage, the fortress east of town remains more than half empty. The sheriff and county judge, once champions of the new jail, now decline to comment on it.

Former McLennan County Deputy Rick White, who opposed the jail, had this to say about the prison developers who put the deal together: "They get the corporations formed, they get the bonds sold, they get the facility built, their money is front-loaded, they take their money out. And then there's no reason for them to support the success of the facility."

Two of Texas' busiest private prison consultants — James Parkay and Herb Bristow — declined repeated requests for interviews.

The Inmate Market


According to the Bureau of Justice Statistics, the total correctional population in the United States is declining for the first time in three decades. Among the reasons: The crime rate is falling, sentencing alternatives mean fewer felons doing hard time and states everywhere are slashing budgets.


Private prison companies insist their future is sunny.

A spokesman for the GEO Group declined to speak about the Littlefield prison, but he sent along a slew of press releases highlighting the company's new inmate contracts and prison expansions across the country.

Corrections Corporation of America, the nation's largest private prison operator, says the demand for its facilities remains strong, particularly for federal immigration detainees.

New Jersey-based Community Education Centers, which has been pulling out of unprofitable jails across Texas, issued a statement that "the current (jail) population fluctuation" is cyclical.

One of the places where CEC is cancelling its contract is Falls County, in central Texas, where a for-profit jail addition is losing money. Now it's up to Falls County Judge Steve Sharp to hustle up jailbirds: "If somebody is out there charging $30 a day for an inmate, we need to charge $28. We really don't have a choice of not filling those beds," he said.

Another place where they're desperate for inmates is Anson, the little town north of Abilene, Texas, once famous for its no-dancing law. Today, Jones County owns a brand-new $34 million prison and an $8 million county jail, both of which sit empty. The prison developers made their money and left. Then the Texas Department of Criminal Justice reneged on a contract to fill the new prison with parole violators. The county's Public Facility Corporation that borrowed the money to build the lockups owes $314,000 a month — with no paying inmates. They've got a year's worth of bond service payments set aside before county officials start to sweat.

"The market has changed nationwide in the last 18 months or two years. It's certainly a different picture than when we started this project. And so we're continuing to work the problem," Jones County Judge Dale Spurgin says.

Grayson County, north of Dallas, said no to privatizing its jail. Two years ago, the county was all set to build a $30 million, 750-bed behemoth twice as big as was needed. But the public got queasy and county officials ultimately scuttled the deal.

"When you put the profit motive into a private jail, by design, in order to increase your dollars, your revenues, your profits, you need more folks in there and they need to stay longer," says Bill Magers, mayor of the county seat of Sherman, a leading opponent.

When the supply of prison beds exceeds the demand for prison beds, there are beneficiaries.

The overcrowded Harris County Jail in Houston, the nation's third largest, farms out about 1,000 prisoners to private jails. Littlefield and most other under-occupied facilities in Texas have all been in touch with Houston.

"It really is a buyer's market right now, especially a county our size," says Capt. Robin Kinetsky, who is in charge of inmate processing for the Harris County Sheriffs Department. "They're really wanting to get our business. So, we're getting good deals."

Nearby, disheveled and unsmiling men are brought from a holding cell to stand before a booking officer for their intake interviews. The detainees are wholly unaware that they may soon become the newest commodities of the volatile inmate market.

Aarti Shahani contributed to this NPR News investigation and report.

Senator Al Franken Resigns #MeToo

Play ICivics Games

The Constitution

"We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." — Preamble to the Constitution

The Constitution of the United States of America is the supreme law of the United States. Empowered with the sovereign authority of the people by the framers and the consent of the legislatures of the states, it is the source of all government powers, and also provides important limitations on the government that protect the fundamental rights of United States citizens.

Read the full text of the Constitution

Why a Constitution? | The Constitutional Convention
Ratification | The Bill of Rights

Why a Constitution?

The need for the Constitution grew out of problems with the Articles of Confederation, which established a "firm league of friendship" between the states, and vested most power in a Congress of the Confederation. This power was, however, extremely limited — the central government conducted diplomacy and made war, set weights and measures, and was the final arbiter of disputes between the states. Crucially, it could not raise any funds itself, and was entirely dependent on the states themselves for the money necessary to operate. Each state sent a delegation of between two and seven members to the Congress, and they voted as a bloc with each state getting one vote. But any decision of consequence required a unanimous vote, which led to a government that was paralyzed and ineffectual.

A movement to reform the Articles began, and invitations to attend a convention in Philadelphia to discuss changes to the Articles were sent to the state legislatures in 1787. In May of that year, delegates from 12 of the 13 states (Rhode Island sent no representatives) convened in Philadelphia to begin the work of redesigning government. The delegates to the Constitutional Convention quickly began work on drafting a new Constitution for the United States.

The Constitutional Convention

A chief aim of the Constitution as drafted by the Convention was to create a government with enough power to act on a national level, but without so much power that fundamental rights would be at risk. One way that this was accomplished was to separate the power of government into three branches, and then to include checks and balances on those powers to assure that no one branch of government gained supremacy. This concern arose largely out of the experience that the delegates had with the King of England and his powerful Parliament. The powers of each branch are enumerated in the Constitution, with powers not assigned to them reserved to the states.

Much of the debate, which was conducted in secret to ensure that delegates spoke their minds, focused on the form that the new legislature would take. Two plans competed to become the new government: the Virginia Plan, which apportioned representation based on the population of each state, and the New Jersey plan, which gave each state an equal vote in Congress. The Virginia Plan was supported by the larger states, and the New Jersey plan preferred by the smaller. In the end, they settled on the Great Compromise (sometimes called the Connecticut Compromise), in which the House of Representatives would represent the people as apportioned by population; the Senate would represent the states apportioned equally; and the President would be elected by the Electoral College. The plan also called for an independent judiciary.

The founders also took pains to establish the relationship between the states. States are required to give "full faith and credit" to the laws, records, contracts, and judicial proceedings of the other states, although Congress may regulate the manner in which the states share records, and define the scope of this clause. States are barred from discriminating against citizens of other states in any way, and cannot enact tariffs against one another. States must also extradite those accused of crimes to other states for trial.

The founders also specified a process by which the Constitution may be amended, and since its ratification, the Constitution has been amended 27 times. In order to prevent arbitrary changes, the process for making amendments is quite onerous. An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the states request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the state legislatures, or three-fourths of conventions called in each state for ratification. In modern times, amendments have traditionally specified a timeframe in which this must be accomplished, usually a period of several years. Additionally, the Constitution specifies that no amendment can deny a state equal representation in the Senate without that state's consent.

With the details and language of the Constitution decided, the Convention got down to the work of actually setting the Constitution to paper. It is written in the hand of a delegate from Pennsylvania, Gouverneur Morris, whose job allowed him some reign over the actual punctuation of a few clauses in the Constitution. He is also credited with the famous preamble, quoted at the top of this page. On September 17, 1787, 39 of the 55 delegates signed the new document, with many of those who refused to sign objecting to the lack of a bill of rights. At least one delegate refused to sign because the Constitution codified and protected slavery and the slave trade.


The process set out in the Constitution for its ratification provided for much popular debate in the states. The Constitution would take effect once it had been ratified by nine of the thirteen state legislatures -- unanimity was not be required. During the debate over the Constitution, two factions emerged: the Federalists, who supported adoption, and the Anti-Federalists, who opposed it.

James Madison, Alexander Hamilton, and John Jay set out an eloquent defense of the new Constitution in what came to be called the Federalist Papers. Published anonymously in the newspapers The Independent Journal and The New York Packet under the name Publius between October 1787 and August 1788, the 85 articles that comprise the Federalist Papers remain to this day an invaluable resource for understanding some of the framers' intentions for the Constitution. The most famous of the articles are No. 10, which warns of the dangers of factions and advocates a large republic, and No. 51, which explains the structure of the Constitution, its checks and balances, and how it protects the rights of the people.

The states proceeded to begin ratification, with some debating more intensely than others. Delaware was the first state to ratify, on December 7, 1787. After New Hampshire became the ninth state to ratify, on June 22, 1788, the Confederation Congress established March 9, 1789, as the date to begin operating under the Constitution. By this time, all the states except North Carolina and Rhode Island had ratified — the Ocean State was the last to ratify on May 29, 1790.

The Bill of Rights

One of the principal points of contention between the Federalists and Anti-Federalists was the lack of an enumeration of basic civil rights in the Constitution. Many Federalists argued, as in Federalist No. 84, that the people surrendered no rights in adopting the Constitution. In several states, however, the ratification debate in some states hinged on the adoption of a bill of rights. The solution was known as the Massachusetts Compromise, in which four states ratified the Constitution but at the same time sent recommendations for amendments to the Congress.

James Madison introduced 12 amendments to the First Congress in 1789. Ten of these would go on to become what we now consider to be the Bill of Rights. One was never passed, while another dealing with Congressional salaries was not ratified until 1992, when it became the 27th Amendment. Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights contains rights that many today consider to be fundamental to America.

The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.

The Second Amendment gives citizens the right to bear arms.

The Third Amendment prohibits the government from quartering troops in private homes, a major grievance during the American Revolution.

The Fourth Amendment protects citizens from unreasonable search and seizure. The government may not conduct any searches without a warrant, and such warrants must be issued by a judge and based on probable cause.

The Fifth Amendment provides that citizens not be subject to criminal prosecution and punishment without due process. Citizens may not be tried on the same set of facts twice, and are protected from self-incrimination (the right to remain silent). The amendment also establishes the power of eminent domain, ensuring that private property is not seized for public use without just compensation.

The Sixth Amendment assures the right to a speedy trial by a jury of one's peers, to be informed of the crimes with which they are charged, and to confront the witnesses brought by the government. The amendment also provides the accused the right to compel testimony from witnesses, and to legal representation.

The Seventh Amendment provides that civil cases also be tried by jury.

The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments.

The Ninth Amendment states that the list of rights enumerated in the Constitution is not exhaustive, and that the people retain all rights not enumerated.

The Tenth Amendment assigns all powers not delegated to the United States, or prohibited to the states, to either the states or to the people.


Article I - The Legislative Branch (Congress)

Established by Article I of the Constitution, the Legislative Branch consists of the House of Representatives and the Senate, which together form the United States Congress. The Constitution grants Congress the sole authority to enact legislation and declare war, the right to confirm or reject many Presidential appointments, and substantial investigative powers.

The House of Representatives is made up of 435 elected members, divided among the 50 states in proportion to their total population. In addition, there are 6 non-voting members, representing the District of Columbia, the Commonwealth of Puerto Rico, and four other territories of the United States. The presiding officer of the chamber is the Speaker of the House, elected by the Representatives. He or she is third in the line of succession to the Presidency.

Members of the House are elected every two years and must be 25 years of age, a U.S. citizen for at least seven years, and a resident of the state (but not necessarily the district) they represent.

The House has several powers assigned exclusively to it, including the power to initiate revenue bills, impeach federal officials, and elect the President in the case of an electoral college tie.

The Senate is composed of 100 Senators, 2 for each state. Until the ratification of the 17th Amendment in 1913, Senators were chosen by state legislatures, not by popular vote. Since then, they have been elected to six-year terms by the people of each state. Senator's terms are staggered so that about one-third of the Senate is up for reelection every two years. Senators must be 30 years of age, U.S. citizens for at least nine years, and residents of the state they represent.

The Vice President of the United States serves as President of the Senate and may cast the decisive vote in the event of a tie in the Senate.

The Senate has the sole power to confirm those of the President's appointments that require consent, and to ratify treaties. There are, however, two exceptions to this rule: the House must also approve appointments to the Vice Presidency and any treaty that involves foreign trade. The Senate also tries impeachment cases for federal officials referred to it by the House.

In order to pass legislation and send it to the President for his signature, both the House and the Senate must pass the same bill by majority vote. If the President vetoes a bill, they may override his veto by passing the bill again in each chamber with at least two-thirds of each body voting in favor.

The Legislative Process | Powers of Congress | Government Oversight

The Legislative Process

The first step in the legislative process is the introduction of a bill to Congress. Anyone can write it, but only members of Congress can introduce legislation. Some important bills are traditionally introduced at the request of the President, such as the annual federal budget. During the legislative process, however, the initial bill can undergo drastic changes.

After being introduced, a bill is referred to the appropriate committee for review. There are 17 Senate committees, with 70 subcommittees, and 23 House committees, with 104 subcommittees. The committees are not set in stone, but change in number and form with each new Congress as required for the efficient consideration of legislation. Each committee oversees a specific policy area, and the subcommittees take on more specialized policy areas. For example, the House Committee on Ways and Means includes subcommittees on Social Security and Trade.

A bill is first considered in a subcommittee, where it may be accepted, amended, or rejected entirely. If the members of the subcommittee agree to move a bill forward, it is reported to the full committee, where the process is repeated again. Throughout this stage of the process, the committees and subcommittees call hearings to investigate the merits and flaws of the bill. They invite experts, advocates, and opponents to appear before the committee and provide testimony, and can compel people to appear using subpoena power if necessary.

If the full committee votes to approve the bill, it is reported to the floor of the House or Senate, and the majority party leadership decides when to place the bill on the calendar for consideration. If a bill is particularly pressing, it may be considered right away. Others may wait for months or never be scheduled at all.

When the bill comes up for consideration, the House has a very structured debate process. Each member who wishes to speak only has a few minutes, and the number and kind of amendments are usually limited. In the Senate, debate on most bills is unlimited — Senators may speak to issues other than the bill under consideration during their speeches, and any amendment can be introduced. Senators can use this to filibuster bills under consideration, a procedure by which a Senator delays a vote on a bill — and by extension its passage — by refusing to stand down. A supermajority of 60 Senators can break a filibuster by invoking cloture, or the cession of debate on the bill, and forcing a vote. Once debate is over, the votes of a simple majority passes the bill.

A bill must pass both houses of Congress before it goes to the President for consideration. Though the Constitution requires that the two bills have the exact same wording, this rarely happens in practice. To bring the bills into alignment, a Conference Committee is convened, consisting of members from both chambers. The members of the committee produce a conference report, intended as the final version of the bill. Each chamber then votes again to approve the conference report. Depending on where the bill originated, the final text is then enrolled by either the Clerk of the House or the Secretary of the Senate, and presented to the Speaker of the House and the President of the Senate for their signatures. The bill is then sent to the President.

When receiving a bill from Congress, the President has several options. If the President agrees substantially with the bill, he or she may sign it into law, and the bill is then printed in the Statutes at Large. If the President believes the law to be bad policy, he may veto it and send it back to Congress. Congress may override the veto with a two-thirds vote of each chamber, at which point the bill becomes law and is printed.

There are two other options that the President may exercise. If Congress is in session and the President takes no action within 10 days, the bill becomes law. If Congress adjourns before 10 days are up and the President takes no action, then the bill dies and Congress may not vote to override. This is called a pocket veto, and if Congress still wants to pass the legislation, they must begin the entire process anew.

Powers of Congress

Congress, as one of the three coequal branches of government, is ascribed significant powers by the Constitution. All legislative power in the government is vested in Congress, meaning that it is the only part of the government that can make new laws or change existing laws. Executive Branch agencies issue regulations with the full force of law, but these are only under the authority of laws enacted by Congress. The President may veto bills Congress passes, but Congress may also override a veto by a two-thirds vote in both the Senate and the House of Representatives.

Article I of the Constitution enumerates the powers of Congress and the specific areas in which it may legislate. Congress is also empowered to enact laws deemed "necessary and proper" for the execution of the powers given to any part of the government under the Constitution.

Part of Congress's exercise of legislative authority is the establishment of an annual budget for the government. To this end, Congress levies taxes and tariffs to provide funding for essential government services. If enough money cannot be raised to fund the government, then Congress may also authorize borrowing to make up the difference. Congress can also mandate spending on specific items: legislatively directed spending, commonly known as "earmarks," specifies funds for a particular project, rather than for a government agency.

Both chambers of Congress have extensive investigative powers, and may compel the production of evidence or testimony toward whatever end they deem necessary. Members of Congress spend much of their time holding hearings and investigations in committee. Refusal to cooperate with a Congressional subpoena can result in charges of contempt of Congress, which could result in a prison term.

The Senate maintains several powers to itself: It ratifies treaties by a two-thirds supermajority vote and confirms the appointments of the President by a majority vote. The consent of the House of Representatives is also necessary for the ratification of trade agreements and the confirmation of the Vice President.

Congress also holds the sole power to declare war.

Government Oversight

Oversight of the executive branch is an important Congressional check on the President's power and a balance against his discretion in implementing laws and making regulations.

A major way that Congress conducts oversight is through hearings. The House Committee on Oversight and Government Reform and the Senate Committee on Homeland Security and Government Affairs are both devoted to overseeing and reforming government operations, and each committee conducts oversight in its policy area.

Congress also maintains an investigative organization, the Government Accountability Office (GAO). Founded in 1921 as the General Accounting Office, its original mission was to audit the budgets and financial statements sent to Congress by the Secretary of the Treasury and the Director of the Office of Management and Budget. Today, the GAO audits and generates reports on every aspect of the government, ensuring that taxpayer dollars are spent with the effectiveness and efficiency that the American people deserve.

The executive branch also polices itself: Sixty-four Inspectors General, each responsible for a different agency, regularly audit and report on the agencies to which they are attached.


Article II - the Executive Branch

The power of the Executive Branch is vested in the President of the United States, who also acts as head of state and Commander-in-Chief of the armed forces. The President is responsible for implementing and enforcing the laws written by Congress and, to that end, appoints the heads of the federal agencies, including the Cabinet. The Vice President is also part of the Executive Branch, ready to assume the Presidency should the need arise.

The Cabinet and independent federal agencies are responsible for the day-to-day enforcement and administration of federal laws. These departments and agencies have missions and responsibilities as widely divergent as those of the Department of Defense and the Environmental Protection Agency, the Social Security Administration and the Securities and Exchange Commission.

Including members of the armed forces, the Executive Branch employs more than 4 million Americans.

The President | The Vice President
Executive Office of the President | The Cabinet

The President

The President is both the head of state and head of government of the United States of America, and Commander-in-Chief of the armed forces.

Under Article II of the Constitution, the President is responsible for the execution and enforcement of the laws created by Congress. Fifteen executive departments — each led by an appointed member of the President's Cabinet — carry out the day-to-day administration of the federal government. They are joined in this by other executive agencies such as the CIA and Environmental Protection Agency, the heads of which are not part of the Cabinet, but who are under the full authority of the President. The President also appoints the heads of more than 50 independent federal commissions, such as the Federal Reserve Board or the Securities and Exchange Commission, as well as federal judges, ambassadors, and other federal offices. The Executive Office of the President (EOP) consists of the immediate staff to the President, along with entities such as the Office of Management and Budget and the Office of the United States Trade Representative.

The President has the power either to sign legislation into law or to veto bills enacted by Congress, although Congress may override a veto with a two-thirds vote of both houses. The Executive Branch conducts diplomacy with other nations, and the President has the power to negotiate and sign treaties, which also must be ratified by two-thirds of the Senate. The President can issue executive orders, which direct executive officers or clarify and further existing laws. The President also has unlimited power to extend pardons and clemencies for federal crimes, except in cases of impeachment.

With these powers come several responsibilities, among them a constitutional requirement to "from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." Although the President may fulfill this requirement in any way he or she chooses, Presidents have traditionally given a State of the Union address to a joint session of Congress each January (except in inaugural years) outlining their agenda for the coming year.

The Constitution lists only three qualifications for the Presidency — the President must be 35 years of age, be a natural born citizen, and must have lived in the United States for at least 14 years. And though millions of Americans vote in a presidential election every four years, the President is not, in fact, directly elected by the people. Instead, on the first Tuesday in November of every fourth year, the people elect the members of the Electoral College. Apportioned by population to the 50 states — one for each member of their congressional delegation (with the District of Columbia receiving 3 votes) — these Electors then cast the votes for President. There are currently 538 electors in the Electoral College.

President Barack Obama is the 44th President of the United States. He is, however, only the 43rd person ever to serve as President; President Grover Cleveland served two nonconsecutive terms, and thus is recognized as both the 22nd and the 24th President. Today, the President is limited to two four-year terms, but until the 22nd Amendment to the Constitution, ratified in 1951, a President could serve an unlimited number of terms. Franklin Delano Roosevelt was elected President four times, serving from 1932 until his death in 1945; he is the only President ever to have served more than two terms.

By tradition, the President and the First Family live in the White House in Washington, D.C., also the location of the President's Oval Office and the offices of the his senior staff. When the President travels by plane, his aircraft is designated Air Force One; he may also use a Marine Corps helicopter, known as Marine One while the President is on board. For ground travel, the President uses an armored Presidential limousine.

The Vice President

The primary responsibility of the Vice President of the United States is to be ready at a moment's notice to assume the Presidency if the President is unable to perform his duties. This can be because of the President's death, resignation, or temporary incapacitation, or if the Vice President and a majority of the Cabinet judge that the President is no longer able to discharge the duties of the presidency.

The Vice President is elected along with the President by the Electoral College — each elector casts one vote for President and another for Vice President. Before the ratification of the 12th Amendment in 1804, electors only voted for President, and the person who received the second greatest number of votes became Vice President.

The Vice President also serves as the President of the United States Senate, where he or she casts the deciding vote in the case of a tie. Except in the case of tiebreaking votes, the Vice President rarely actually presides over the Senate. Instead, the Senate selects one of their own members, usually junior members of the majority party, to preside over the Senate each day.

Joseph R. Biden is the 47th Vice President of the United States. Of the 45 previous Vice Presidents, nine have succeeded to the Presidency, and four have been elected to the Presidency in their own right. The duties of the Vice President, outside of those enumerated in the Constitution, are at the discretion of the current President. Each Vice President approaches the role differently — some take on a specific policy portfolio, others serve simply as a top adviser to the President.

The Vice President has an office in the West Wing of the White House, as well as in the nearby Eisenhower Executive Office Building. Like the President, he also maintains an official residence, at the United States Naval Observatory in Northwest Washington, D.C. This peaceful mansion, has been the official home of the Vice President since 1974 — previously, Vice Presidents had lived in their own private residences. The Vice President also has his own limousine, operated by the United States Secret Service, and flies on the same aircraft the President uses — but when the Vice President is aboard, the craft are referred to as Air Force Two and Marine Two.

Executive Office of the President

Every day, the President of the United States is faced with scores of decisions, each with important consequences for America's future. To provide the President with the support the he or she needs to govern effectively, the Executive Office of the President (EOP) was created in 1939 by President Franklin D. Roosevelt. The EOP has responsibility for tasks ranging from communicating the President's message to the American people to promoting our trade interests abroad.

The EOP, overseen by the White House Chief of Staff, has traditionally been home to many of the President's closest advisers. While Senate confirmation is required for some advisers, such as the Director of the Office of Management and Budget, most are appointed with full Presidential discretion. The individual offices that these advisors oversee have grown in size and number since the EOP was created. Some were formed by Congress, others as the President has needed them — they are constantly shifting as each President identifies his needs and priorities, with the current EOP employing over 1,800 people.

Perhaps the most visible parts of the EOP are the White House Communications Office and Press Secretary's Office. The Press Secretary provides daily briefings for the media on the President's activities and agenda. Less visible to most Americans is the National Security Council, which advises the President on foreign policy, intelligence, and national security.

There are also a number of offices responsible for the practicalities of maintaining the White House and providing logistical support for the President. These include the White House Military Office, which is responsible for services ranging from Air Force One to the dining facilities, and the Office of Presidential Advance, which prepares sites remote from the White House for the President's arrival.

Many senior advisors in the EOP work near the President in the West Wing of the White House. However, the majority of the staff is housed in the Eisenhower Executive Office Building, just a few steps away and part of the White House compound.

The Cabinet

The Cabinet is an advisory body made up of the heads of the 15 executive departments. Appointed by the President and confirmed by the Senate, the members of the Cabinet are often the President's closest confidants. In addition to running major federal agencies, they play an important role in the Presidential line of succession — after the Vice President, Speaker of the House, and Senate President pro tempore, the line of succession continues with the Cabinet offices in the order in which the departments were created. All the members of the Cabinet take the title Secretary, excepting the head of the Justice Department, who is styled Attorney General.

Department of Agriculture

The U.S. Department of Agriculture (USDA) develops and executes policy on farming, agriculture, and food. Its aims include meeting the needs of farmers and ranchers, promoting agricultural trade and production, assuring food safety, protecting natural resources, fostering rural communities, and ending hunger in America and abroad.

The USDA employs more than 100,000 employees and has an annual budget of approximately $95 billion. It consists of 17 agencies, including the Animal and Plant Health Inspection Service, the Food and Nutrition Service, and the Forest Service. The bulk of the department's budget goes towards mandatory programs that provide services required by law, such as programs designed to provide nutrition assistance, promote agricultural exports, and conserve our environment. The USDA also plays an important role in overseas aid programs by providing surplus foods to developing countries.

The United States Secretary of Agriculture administers the USDA.

Department of Commerce

The Department of Commerce is the government agency tasked with improving living standards for all Americans by promoting economic development and technological innovation.

The department supports U.S. business and industry through a number of services, including gathering economic and demographic data, issuing patents and trademarks, improving understanding of the environment and oceanic life, and ensuring the effective use of scientific and technical resources. The agency also formulates telecommunications and technology policy, and promotes U.S. exports by assisting and enforcing international trade agreements.

The Secretary of Commerce oversees a $6.5 billion budget and approximately 38,000 employees.

Department of Defense

The mission of the Department of Defense (DOD) is to provide the military forces needed to deter war and to protect the security of our country. The department's headquarters is at the Pentagon.

The DOD consists of the Departments of the Army, Navy, and Air Force, as well as many agencies, offices, and commands, including the Joint Chiefs of Staff, the Pentagon Force Protection Agency, the National Security Agency, and the Defense Intelligence Agency. The DOD occupies the vast majority of the Pentagon building in Arlington, VA.

The Department of Defense is the largest government agency, with more than 1.3 million men and women on active duty, nearly 700,000 civilian personnel, and 1.1 million citizens who serve in the National Guard and Reserve forces. Together, the military and civilian arms of DOD protect national interests through war-fighting, providing humanitarian aid, and performing peacekeeping and disaster relief services.

Department of Education
The mission of the Department of Education is to promote student achievement and preparation for competition in a global economy by fostering educational excellence and ensuring equal access to educational opportunity.

The Department administers federal financial aid for education, collects data on America's schools to guide improvements in education quality, and works to complement the efforts of state and local governments, parents, and students.

The U.S. Secretary of Education oversees the Department's 4,200 employees and $68.6 billion budget.

Department of Energy

The mission of the Department of Energy (DOE) is to advance the national, economic, and energy security of the United States.

The DOE promotes America's energy security by encouraging the development of reliable, clean, and affordable energy. It administers federal funding for scientific research to further the goal of discovery and innovation — ensuring American economic competitiveness and improving the quality of life for Americans.

The DOE is also tasked with ensuring America's nuclear security, and with protecting the environment by providing a responsible resolution to the legacy of nuclear weapons production.

The United States Secretary of Energy oversees a budget of approximately $23 billion and more than 100,000 federal and contract employees.

Department of Health and Human Services

The Department of Health and Human Services (HHS) is the United States government's principal agency for protecting the health of all Americans and providing essential human services, especially for those who are least able to help themselves. Agencies of HHS conduct health and social science research, work to prevent disease outbreaks, assure food and drug safety, and provide health insurance.

In addition to administering Medicare and Medicaid, which together provide health insurance to one in four Americans, HHS also oversees the National Institutes of Health, the Food and Drug Administration, and the Centers for Disease Control.

The Secretary of Health and Human Services oversees a budget of approximately $700 billion and approximately 65,000 employees. The Department's programs are administered by 11 operating divisions, including 8 agencies in the U.S. Public Health Service and 3 human services agencies.

Department of Homeland Security

The missions of the Department of Homeland Security are to prevent and disrupt terrorist attacks; protect the American people, our critical infrastructure, and key resources; and respond to and recover from incidents that do occur. The third largest Cabinet department, DHS was established by the Homeland Security Act of 2002, largely in response to the terrorist attacks on September 11, 2001. The new department consolidated 22 executive branch agencies, including the U.S. Customs Service, the U.S. Coast Guard, the U.S. Secret Service, the Transportation Security Administration, and the Federal Emergency Management Agency.

DHS employs 216,000 people in its mission to patrol borders, protect travelers and our transportation infrastructure, enforce immigration laws, and respond to disasters and emergencies. The agency also promotes preparedness and emergency prevention among citizens. Policy is coordinated by the Homeland Security Council at the White House, in cooperation with other defense and intelligence agencies, and led by the Assistant to the President for Homeland Security.

Department of Housing and Urban Development

The Department of Housing and Urban Development (HUD) is the federal agency responsible for national policies and programs that address America's housing needs, that improve and develop the nation's communities, and that enforce fair housing laws. The Department plays a major role in supporting homeownership for lower- and moderate-income families through its mortgage insurance and rent subsidy programs.

Offices within HUD include the Federal Housing Administration, which provides mortgage and loan insurance; the Office of Fair Housing and Equal Opportunity, which ensures all Americans equal access to the housing of their choice; and the Community Development Block Grant Program, which helps communities with economic development, job opportunities, and housing rehabilitation. HUD also administers public housing and homeless assistance.

The Secretary of Housing and Urban Development oversees approximately 9,000 employees on a budget of approximately $40 billion.

Department of the Interior

The Department of the Interior (DOI) is the nation's principal conservation agency. Its mission is to protect America's natural resources, offer recreation opportunities, conduct scientific research, conserve and protect fish and wildlife, and honor our trust responsibilities to American Indians, Alaskan Natives, and our responsibilities to island communities.

DOI manages 500 million acres of surface land, or about one-fifth of the land in the United States, and manages hundreds of dams and reservoirs. Agencies within the DOI include the Bureau of Indian Affairs, the Minerals Management Service, and the U.S. Geological Survey. The DOI manages the national parks and is tasked with protecting endangered species.

The Secretary of the Interior oversees about 70,000 employees and 200,000 volunteers on a budget of approximately $16 billion. Every year it raises billions in revenue from energy, mineral, grazing, and timber leases, as well as recreational permits and land sales.

Department of Justice

The mission of the Department of Justice (DOJ) is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.

The DOJ is comprised of 40 component organizations, including the Drug Enforcement Administration, the Federal Bureau of Investigation, the U.S. Marshals, and the Federal Bureau of Prisons. The Attorney General is the head of the DOJ and chief law enforcement officer of the federal government. The Attorney General represents the United States in legal matters, advises the President and the heads of the executive departments of the government, and occasionally appears in person before the Supreme Court.

With a budget of approximately $25 billion, the DOJ is the world's largest law office and the central agency for the enforcement of federal laws.

Department of Labor

The Department of Labor oversees federal programs for ensuring a strong American workforce. These programs address job training, safe working conditions, minimum hourly wage and overtime pay, employment discrimination, and unemployment insurance.

The Department of Labor's mission is to foster and promote the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements.

Offices within the Department of Labor include the Bureau of Labor Statistics, the federal government's principal statistics agency for labor economics, and the Occupational Safety & Health Administration, which promotes the safety and health of America's working men and women.

The Secretary of Labor oversees 15,000 employees on a budget of approximately $50 billion.

Department of State

The Department of State plays the lead role in developing and implementing the President's foreign policy. Major responsibilities include United States representation abroad, foreign assistance, foreign military training programs, countering international crime, and a wide assortment of services to U.S. citizens and foreign nationals seeking entrance to the U.S.

The U.S. maintains diplomatic relations with approximately 180 countries — each posted by civilian U.S. Foreign Service employees — as well as with international organizations. At home, more than 5,000 civil employees carry out the mission of the Department.

The Secretary of State serves as the President's top foreign policy adviser, and oversees 30,000 employees and a budget of approximately $35 billion.

Department of Transportation

The mission of the Department of Transportation (DOT) is to ensure a fast, safe, efficient, accessible and convenient transportation system that meets our vital national interests and enhances the quality of life of the American people.

Organizations within the DOT include the Federal Highway Administration, the Federal Aviation Administration, the National Highway Traffic Safety Administration, the Federal Transit Administration, the Federal Railroad Administration and the Maritime Administration.

The U.S. Secretary of Transportation oversees approximately 55,000 employees and a budget of approximately $70 billion.

Department of the Treasury

The Department of the Treasury is responsible for promoting economic prosperity and ensuring the soundness and security of the U.S. and international financial systems.

The Department operates and maintains systems that are critical to the nation's financial infrastructure, such as the production of coin and currency, the disbursement of payments to the American public, the collection of taxes, and the borrowing of funds necessary to run the federal government. The Department works with other federal agencies, foreign governments, and international financial institutions to encourage global economic growth, raise standards of living, and, to the extent possible, predict and prevent economic and financial crises. The Treasury Department also performs a critical and far-reaching role in enhancing national security by improving the safeguards of our financial systems, implementing economic sanctions against foreign threats to the U.S., and identifying and targeting the financial support networks of national security threats.

The Secretary of the Treasury oversees a budget of approximately $13 billion and a staff of more than 100,000 employees.

Department of Veterans Affairs

The Department of Veterans Affairs is responsible for administering benefit programs for veterans, their families, and their survivors. These benefits include pension, education, disability compensation, home loans, life insurance, vocational rehabilitation, survivor support, medical care, and burial benefits. Veterans Affairs became a cabinet-level department in 1989.

Of the 25 million veterans currently alive, nearly three of every four served during a war or an official period of hostility. About a quarter of the nation's population — approximately 70 million people — are potentially eligible for V.A. benefits and services because they are veterans, family members, or survivors of veterans.

The Secretary of Veterans Affairs oversees a budget of approximately $90 billion and a staff of approximately 235,000 employees.

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Article III - The Judicial Branch

Where the Executive and Legislative branches are elected by the people, members of the Judicial Branch are appointed by the President and confirmed by the Senate.

Article III of the Constitution, which establishes the Judicial Branch, leaves Congress significant discretion to determine the shape and structure of the federal judiciary. Even the number of Supreme Court Justices is left to Congress — at times there have been as few as six, while the current number (nine, with one Chief Justice and eight Associate Justices) has only been in place since 1869. The Constitution also grants Congress the power to establish courts inferior to the Supreme Court, and to that end Congress has established the United States district courts, which try most federal cases, and 13 United States courts of appeals, which review appealed district court cases.

Federal judges can only be removed through impeachment by the House of Representatives and conviction in the Senate. Judges and justices serve no fixed term — they serve until their death, retirement, or conviction by the Senate. By design, this insulates them from the temporary passions of the public, and allows them to apply the law with only justice in mind, and not electoral or political concerns.

Generally, Congress determines the jurisdiction of the federal courts. In some cases, however — such as in the example of a dispute between two or more U.S. states — the Constitution grants the Supreme Court original jurisdiction, an authority that cannot be stripped by Congress.

The courts only try actual cases and controversies — a party must show that it has been harmed in order to bring suit in court. This means that the courts do not issue advisory opinions on the constitutionality of laws or the legality of actions if the ruling would have no practical effect. Cases brought before the judiciary typically proceed from district court to appellate court and may even end at the Supreme Court, although the Supreme Court hears comparatively few cases each year.

Federal courts enjoy the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases. The courts, like Congress, can compel the production of evidence and testimony through the use of a subpoena. The inferior courts are constrained by the decisions of the Supreme Court — once the Supreme Court interprets a law, inferior courts must apply the Supreme Court's interpretation to the facts of a particular case.

The Supreme Court of the United States | The Judicial Process

The Supreme Court of the United States

The Supreme Court of the United States is the highest court in the land and the only part of the federal judiciary specifically required by the Constitution.

The Constitution does not stipulate the number of Supreme Court Justices; the number is set instead by Congress. There have been as few as six, but since 1869 there have been nine Justices, including one Chief Justice. All Justices are nominated by the President, confirmed by the Senate, and hold their offices under life tenure. Since Justices do not have to run or campaign for re-election, they are thought to be insulated from political pressure when deciding cases. Justices may remain in office until they resign, pass away, or are impeached and convicted by Congress.

The Court's caseload is almost entirely appellate in nature, and the Court's decisions cannot be appealed to any authority, as it is the final judicial arbiter in the United States on matters of federal law. However, the Court may consider appeals from the highest state courts or from federal appellate courts. The Court also has original jurisdiction in cases involving ambassadors and other diplomats, and in cases between states.

Although the Supreme Court may hear an appeal on any question of law provided it has jurisdiction, it usually does not hold trials. Instead, the Court's task is to interpret the meaning of a law, to decide whether a law is relevant to a particular set of facts, or to rule on how a law should be applied. Lower courts are obligated to follow the precedent set by the Supreme Court when rendering decisions.

In almost all instances, the Supreme Court does not hear appeals as a matter of right; instead, parties must petition the Court for a writ of certiorari. It is the Court's custom and practice to "grant cert" if four of the nine Justices decide that they should hear the case. Of the approximately 7,500 requests for certiorari filed each year, the Court usually grants cert to fewer than 150. These are typically cases that the Court considers sufficiently important to require their review; a common example is the occasion when two or more of the federal courts of appeals have ruled differently on the same question of federal law.

If the Court grants certiorari, Justices accept legal briefs from the parties to the case, as well as from amicus curiae, or "friends of the court." These can include industry trade groups, academics, or even the U.S. government itself. Before issuing a ruling, the Supreme Court usually hears oral arguments, where the various parties to the suit present their arguments and the Justices ask them questions. If the case involves the federal government, the Solicitor General of the United States presents arguments on behalf of the United States. The Justices then hold private conferences, make their decision, and (often after a period of several months) issue the Court's opinion, along with any dissenting arguments that may have been written.

The Judicial Process

Article III of the Constitution of the United States guarantees that every person accused of wrongdoing has the right to a fair trial before a competent judge and a jury of one's peers.

The Fourth, Fifth, and Sixth Amendments to the Constitution provide additional protections for those accused of a crime. These include:

  • A guarantee that no person shall be deprived of life, liberty, or property without the due process of law
  • Protection against being tried for the same crime twice ("double jeopardy")
  • The right to a speedy trial by an impartial jury
  • The right to cross-examine witnesses, and to call witnesses to support their case
  • The right to legal representation
  • The right to avoid self-incrimination
  • Protection from excessive bail, excessive fines, and cruel and unusual punishments

Criminal proceedings can be conducted under either state or federal law, depending on the nature and extent of the crime. A criminal legal procedure typically begins with an arrest by a law enforcement officer. If a grand jury chooses to deliver an indictment, the accused will appear before a judge and be formally charged with a crime, at which time he or she may enter a plea.

The defendant is given time to review all the evidence in the case and to build a legal argument. Then, the case is brought to trial and decided by a jury. If the defendant is determined to be not guilty of the crime, the charges are dismissed. Otherwise, the judge determines the sentence, which can include prison time, a fine, or even execution.

Civil cases are similar to criminal ones, but instead of arbitrating between the state and a person or organization, they deal with disputes between individuals or organizations. If a party believes that it has been wronged, it can file suit in civil court to attempt to have that wrong remedied through an order to cease and desist, alter behavior, or award monetary damages. After the suit is filed and evidence is gathered and presented by both sides, a trial proceeds as in a criminal case. If the parties involved waive their right to a jury trial, the case can be decided by a judge; otherwise, the case is decided and damages awarded by a jury.

After a criminal or civil case is tried, it may be appealed to a higher court — a federal court of appeals or state appellate court. A litigant who files an appeal, known as an "appellant," must show that the trial court or administrative agency made a legal error that affected the outcome of the case. An appellate court makes its decision based on the record of the case established by the trial court or agency — it does not receive additional evidence or hear witnesses. It may also review the factual findings of the trial court or agency, but typically may only overturn a trial outcome on factual grounds if the findings were "clearly erroneous." If a defendant is found not guilty in a criminal proceeding, he or she cannot be retried on the same set of facts.

Federal appeals are decided by panels of three judges. The appellant presents legal arguments to the panel, in a written document called a "brief." In the brief, the appellant tries to persuade the judges that the trial court made an error, and that the lower decision should be reversed. On the other hand, the party defending against the appeal, known as the "appellee" or "respondent," tries in its brief to show why the trial court decision was correct, or why any errors made by the trial court are not significant enough to affect the outcome of the case.

The court of appeals usually has the final word in the case, unless it sends the case back to the trial court for additional proceedings. In some cases the decision may be reviewed en banc — that is, by a larger group of judges of the court of appeals for the circuit.

A litigant who loses in a federal court of appeals, or in the highest court of a state, may file a petition for a "writ of certiorari," which is a document asking the Supreme Court to review the case. The Supreme Court, however, is not obligated to grant review. The Court typically will agree to hear a case only when it involves a new and important legal principle, or when two or more federal appellate courts have interpreted a law differently. (There are also special circumstances in which the Supreme Court is required by law to hear an appeal.) When the Supreme Court hears a case, the parties are required to file written briefs and the Court may hear oral argument.

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Have the Justices Gone Gun-Shy?

Five years after its landmark gun-rights decisions, the U.S. Supreme Court is avoiding any cases about the Second Amendment.


The U.S. Supreme Court declines to hear thousands of cases each year, so in one sense, Monday’s announcement that it wouldn’t take up Friedman v. Highland Park wasn’t much of a surprise. But among the 130 cases the Court declined to grant certiorari on Monday morning, only one elicited a dissent from two justices.


Arie Friedman challenged Highland Park’s assault-weapons ban, which prohibits residents from buying, selling, or owning some types of semiautomatic firearms. The Seventh Circuit Court of Appeals upheld the Chicago surburb’s ban by narrowly interpreting the Court’s recent Second Amendment rulings, which focused on handguns.

That ruling, Justice Clarence Thomas wrote in his dissent from the denial of certiorari, “eviscerated many of the protections recognized” by the Supreme Court. More importantly, he argued, the Court’s refusal to summarily reverse the Seventh Circuit or even hear the case at all risked “relegating the Second Amendment to a second-class right.” Justice Scalia joined his opinion without comment.


Monday’s refusal to hear Friedman is the latest episode in the Supreme Court’s strange silence on the Second Amendment since handing down two landmark rulings, D.C. v. Heller and McDonald v. Chicago, in 2008 and 2010. As the national debate over the role of firearms in American society intensifies with each mass shooting or proposed gun-control measure, the justices have refused to hear a single major gun-rights case since they applied the Second Amendment to the states five years ago.

The Court’s silence hasn’t been for want of a significant case. In June, the justices declined to hear a challenge to San Francisco’s requirement that handguns must be either disabled with trigger locks or stored in locked containers when not in use. The city ordinance was similar, though not identical, to the one struck down by the Supreme Court in D.C. v. Heller in 2008. Last year, the justices ignored two NRA-led cases challenging federal and state age restrictions on firearm purchases. And in 2013, the Court refused a case that sought to overturn New York’s strict regulations on carrying handguns outside the home.

The cumulative effect of these denials (and many others) is a bizarre unwillingness to participate in a legal revolution that the Court itself ignited. First, some history. For most of the republic’s existence, the Bill of Rights, including the Second Amendment, only applied to the federal government. Then, in the 1927 case Gitlow v. New York, the justices ruled that the Fourteenth Amendment’s Due Process Clause extended the protections of the First Amendment’s Free Speech Clause to laws passed by state and local governments. The ruling sparked a slow-burning revolution in American constitutional law over the next half-century as the justices steadily began what constitutional scholars refer to as “selective incorporation”: the application of the Bill of Rights to the states, piece by piece.


State constitutions already protected many rights in many states, but some of the Court’s incorporation rulings still led to seismic changes, especially in criminal law. In Mapp v. Ohio in 1961, the Court incorporated the exclusionary rule, a Fourth Amendment remedy that prevents the use of illegally obtained evidence during trials, to the states, where most criminal trials in the U.S. take place. Two years later, in Gideon v. Wainwright, the Court also incorporated the Sixth Amendment’s assistance-of-counsel clause and ruled that the states had to provide a lawyer for criminal defendants who could not afford one in felony cases, leading to the creation of the modern public-defender system.

By the late 1960s, the Court had expanded most of the Bill of Rights to the states. But the Second Amendment remained an outlier. Only a smattering of cases had addressed it since the Civil War, and those that did often weren’t favorable to the gun-rights movement: U.S. v. Cruikshank, a Reconstruction-era case, explicitly stated that the Second Amendment didn’t apply to the states, and the 1939 case U.S. v. Miller upheld the restrictions of the federal National Firearms Act.

As Michael Waldman noted in his recent history of the Second Amendment, virtually all judges and constitutional scholars believed until recently that there was no constitutional right to individual gun ownership. Chief Justice Warren Burger, a staunchly conservative Nixon appointee, called the idea “a fraud on the American public” in a 1980 interview. The most notable gun-related case of the Rehnquist Court, U.S. v. Lopez, struck down the Gun-Free School Zones Act of 1990 for exceeding Congress’s power to regulate interstate commerce, not for violating the Second Amendment.


Then, in two successive rulings in 2008 and 2010, the Supreme Court dramatically reversed course. First, in a 5-4 decision in Heller, the Court ruled that, lo and behold, the Second Amendment did protect an individual’s right to bear arms. Scalia, writing for the majority, relied heavily on English legal history and colonial-era texts to outline the Founders’ intent to protect that right. At the same time, he dismissed those who noted that despite this historical record, the Court itself had never before found such a right. “Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods,” he argued. “For most of our history the question did not present itself.”

Heller was a triumph of the gun-rights movement, which spent decades dragging the idea out of the hinterlands of American constitutional thought and into the Supreme Court’s rulings. But despite the fears of some and the hopes of others, the decision was more restrained than it could have been. D.C.’s handgun law was among the strictest in the country, making it an easy target for legal activists but limiting its factual relevance for future challenges to other city and state gun laws. In his opinion for the Court, Scalia also indicated that Heller should not throw most of the nation’s gun laws into chaos.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

More importantly, the decision only applied to D.C. itself and to the federal government; it would take another ruling to apply it to the states. Two years later, the same 5-4 majority of justices incorporated the Second Amendment to strike down Chicago’s handgun ban in McDonald. Citing the historical record, Justice Samuel Alito wrote that “it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”


Throughout their opinions in McDonald, both sides braced for future legal challenges to gun laws nationwide. Justice John Paul Stevens complained that the Court “unleashed in Heller a tsunami of legal uncertainty,” citing hundreds of Second Amendment challenges filed in the lower courts in the previous two years. Alito countered those fears with the Court’s past reassurances.

We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.  

Five justices formed the majorities in Heller and McDonald: Scalia, Thomas, Alito, Justice Anthony Kennedy, and Chief Justice John Roberts. All of them remain on the Court today. The Court does not identify how justices vote when granting or denying certiorari petitions, but four votes are required to grant a case. We can therefore logically conclude that at least two justices from the Heller/McDonald majority have refused to take a single Second Amendment case in the last five years.

That does not mean that the same two justices voted against hearings in every single case—Alito and Thomas could have voted against some, for example, while Scalia and Kennedy might have voted against others. More than two justices could have also voted against hearings in some cases. In Friedman, for example, Roberts might have voted to hear the case but chosen not to disclose his vote or join Thomas's dissent. And it’s also possible that the entire Heller/McDonald majority is voting to block further Second Amendment cases with the help of one or more dissenters, though that seems unlikely given how many of the denied cases undercut Heller and/or McDonald.

If the justices had accepted one or two firearm-related cases or their silence was limited to a single term or two, it would be irresponsible to speculate. But a five-year silence on the Second Amendment amid a number of major cases suggests something deeper is at work. Maybe it’s the high-profile mass shootings since McDonald. Or the rise in shootings in Chicago since they struck down the city’s handgun ban. Or maybe they’re waiting for more consensus to emerge among the federal circuit courts before revisiting the questions. Or maybe they’re just waiting for the right one.

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Elections & Voting

One of the most important rights of American citizens is the franchise — the right to vote. Originally under the Constitution, only white male citizens over the age of 21 were eligible to vote. This shameful injustice has been corrected and voting rights have been extended several times over the course of our history. Today, citizens over the age of 18 cannot be denied the right to vote, regardless of race, religion, sex, disability, or sexual orientation. However, in every state except North Dakota, citizens must register to vote, and laws regarding the registration process vary by state.

The path to full voting rights for all American citizens was long and often challenging. The franchise was first extended to African Americans under the Fourteenth and Fifteenth Amendments to the Constitution, passed during the Reconstruction period after the Civil War. These guaranteed that all male citizens, regardless of their race, would receive equal treatment under the law and not be deprived of their rights without due process. The Fifteenth Amendment is specifically dedicated to protecting the right of all citizens to vote, regardless of their race.

For practical purposes, this was not the end of the voting rights struggle for African Americans. Because of widespread discrimination in some states, including the use of poll taxes, grandfather clauses, and literacy tests, African Americans were not assured full voting rights until President Lyndon Baines Johnson signed the Voting Rights Act in 1965.

Women were denied the right to vote until 1920, when the Nineteenth Amendment was passed. Prior to that, women had only been able to vote in select states.

Federal elections occur every two years, on the first Tuesday after the first Monday in November. Every member of the House of Representatives and about one-third of the Senate is up for reelection in any given election year. A presidential election is held every fourth year.

Federal elections are administered by state and local governments, although the specifics of how elections are conducted differ between the states. The Constitution and laws of the United States grant the states wide latitude in how they administer elections.

State and Local Government

Most Americans have more daily contact with their state and local governments than with the federal government. Police departments, libraries, and schools — not to mention driver's licenses and parking tickets — usually fall under the oversight of state and local governments. Each state has its own written constitution, and these documents are often far more elaborate than their federal counterpart. The Alabama Constitution, for example, contains 310,296 words — more than 40 times as many as the U.S. Constitution.

State Government

Under the Tenth Amendment to the U.S. Constitution, all powers not granted to the federal government are reserved for the states and the people. All state governments are modeled after the federal government and consist of three branches: executive, legislative, and judicial. The U.S. Constitution mandates that all states uphold a "republican form" of government, although the three-branch structure is not required.

Executive Branch

In every state, the executive branch is headed by a governor who is directly elected by the people. In most states, the other leaders in the executive branch are also directly elected, including the lieutenant governor, the attorney general, the secretary of state, and auditors and commissioners. States reserve the right to organize in any way, so they often vary greatly with regard to executive structure. No two state executive organizations are identical.

Legislative Branch

All 50 states have legislatures made up of elected representatives, who consider matters brought forth by the governor or introduced by its members to create legislation that becomes law. The legislature also approves a state's budget and initiates tax legislation and articles of impeachment. The latter is part of a system of checks and balances among the three branches of government that mirrors the federal system and prevents any branch from abusing its power.

Except for one state, Nebraska, all states have a bicameral legislature made up of two chambers: a smaller upper house and a larger lower house. Together the two chambers make state laws and fulfill other governing responsibilities. (Nebraska is the lone state that has just one chamber in its legislature.) The smaller upper chamber is always called the Senate, and its members generally serve longer terms, usually four years. The larger lower chamber is most often called the House of Representatives, but some states call it the Assembly or the House of Delegates. Its members usually serve shorter terms, often two years.

Judicial Branch

State judicial branches are usually led by the state supreme court, which hears appeals from lower-level state courts. Court structures and judicial appointments/elections are determined either by legislation or the state constitution. The Supreme Court focuses on correcting errors made in lower courts and therefore holds no trials. Rulings made in state supreme courts are normally binding; however, when questions are raised regarding consistency with the U.S. Constitution, matters may be appealed directly to the United States Supreme Court.

Local Government

Local governments generally include two tiers: counties, also known as boroughs in Alaska and parishes in Louisiana, and municipalities, or cities/towns. In some states, counties are divided into townships. Municipalities can be structured in many ways, as defined by state constitutions, and are called, variously, townships, villages, boroughs, cities, or towns. Various kinds of districts also provide functions in local government outside county or municipal boundaries, such as school districts or fire protection districts.

Municipal governments — those defined as cities, towns, boroughs (except in Alaska), villages, and townships — are generally organized around a population center and in most cases correspond to the geographical designations used by the United States Census Bureau for reporting of housing and population statistics. Municipalities vary greatly in size, from the millions of residents of New York City and Los Angeles to the 287 people who live in Jenkins, Minnesota.

Municipalities generally take responsibility for parks and recreation services, police and fire departments, housing services, emergency medical services, municipal courts, transportation services (including public transportation), and public works (streets, sewers, snow removal, signage, and so forth).

Whereas the federal government and state governments share power in countless ways, a local government must be granted power by the state. In general, mayors, city councils, and other governing bodies are directly elected by the people.

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