A few of you asked some terrific questions in class on Monday concerning the breadth of the President's constitutional power to issue pardons. And, lo and behold, I think we have some answers.
The pardon power is set out in Article II, section 2, clause 1. It states that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in cases of Impeachment." One obvious limitation, which flows from both the text and our federal structure, is that the President cannot pardon persons from offenses against the states (that is, violations of state law). Another clear textual limitation is that the power does not extend to cases of impeachment.
Beyond that, there does not appear to be much by way of limits. There is no substantive limit as to what is a legitimate basis for granting a pardon. Thus, there is nothing that prevents the President, other than political forces, from granting pardons in cases where he has a clear conflict of interest (consider the cases of Casper Weinberger and Marc Rich).
Further, it includes the power to pardon whole classes of people simultaneously by proclamations of amnesty, see United States v. Klein, 80 U.S. 128, 147 (1871), and it can be exercised any time subsequent to the commission of the offense, even prior to indictment, see Ex parte Garland, 71 U.S. 333 (1866). Moreover, the pardon power cannot be "modified, abridged, or diminished by the Congress." Schick v. Reed, 419 U.S. 256, 266 (1974).
The President may not, however, pardon persons for acts that have not yet been committed. See L. Tribe, American Constitutional Law sec. 4-10, at p. 720 (3d ed. 2000). As some of you foresaw in our discussion Monday, such a power "would amount to a presidential arrogation of authority to dispense with the laws--and hence the rule of law--altogether." Id.
Wednesday, November 26, 2008
Tuesday, November 25, 2008
The right to privacy
Some more questions . . .
QUESTION: In Griswold and Baird, the Court apparently finds the right to privacy to be a fundamental right. Yet, the analysis the Court uses is a legitimate interest/reasonable fit test. Again, is this because the Court is saying, "Hello state, you can't even meet the "reasonableness test," so there is no way you'd meet the compelling interest/necessary means test?
ANSWER: That has always been my understanding, as the Court elsewhere in those opinions clearly discusses the right at issue as being "fundamental."
QUESTION: My confusion or question then goes to the Lawrence case.
ANSWER: You and me both.
QUESTION: Even though the Court does not declare the right in Lawrence to be fundamental, can't we look at the law in two ways: (1) This is not a right to sodomy as the dissent points out but simply the right to privacy again, and therefore an implicit use of the Strict Scrutiny Test? and (2) Even if it is not a fundamental right, since it is certainly viable that a moral code interest may not be "legitimate" meaning the court could also say the Texas law does not even meet the rational basis test and, regardless of whether the right is fundamental, there is no way that the State could prevail.
ANSWER: You have hit on precisely the question that I have for all of you -- namely, what exactly is the Court doing in Lawrence? And you have laid out the two basic interpretations that seem possible. Notice, though, that there are problems with each. If the right in Lawrence (however we describe it) is fundamental, that has several implications for what other sorts of laws should be subjected to strict scrutiny, implications that the majority takes pains not to imply. On the other hand, if this law fails the rational basis test because the view that the conduct in question was immoral was an illegitimate interest, that could have some profound implications as well. What about our moral judgment about other practices, sexual or otherwise? Would that reading of Lawrence suggest that the majority's view of morality, at least by itself, cannot be a legitimate state interest? No easy answers here, and the Court is quite cagey about how it phrases its analysis.
QUESTION: In Griswold and Baird, the Court apparently finds the right to privacy to be a fundamental right. Yet, the analysis the Court uses is a legitimate interest/reasonable fit test. Again, is this because the Court is saying, "Hello state, you can't even meet the "reasonableness test," so there is no way you'd meet the compelling interest/necessary means test?
ANSWER: That has always been my understanding, as the Court elsewhere in those opinions clearly discusses the right at issue as being "fundamental."
QUESTION: My confusion or question then goes to the Lawrence case.
ANSWER: You and me both.
QUESTION: Even though the Court does not declare the right in Lawrence to be fundamental, can't we look at the law in two ways: (1) This is not a right to sodomy as the dissent points out but simply the right to privacy again, and therefore an implicit use of the Strict Scrutiny Test? and (2) Even if it is not a fundamental right, since it is certainly viable that a moral code interest may not be "legitimate" meaning the court could also say the Texas law does not even meet the rational basis test and, regardless of whether the right is fundamental, there is no way that the State could prevail.
ANSWER: You have hit on precisely the question that I have for all of you -- namely, what exactly is the Court doing in Lawrence? And you have laid out the two basic interpretations that seem possible. Notice, though, that there are problems with each. If the right in Lawrence (however we describe it) is fundamental, that has several implications for what other sorts of laws should be subjected to strict scrutiny, implications that the majority takes pains not to imply. On the other hand, if this law fails the rational basis test because the view that the conduct in question was immoral was an illegitimate interest, that could have some profound implications as well. What about our moral judgment about other practices, sexual or otherwise? Would that reading of Lawrence suggest that the majority's view of morality, at least by itself, cannot be a legitimate state interest? No easy answers here, and the Court is quite cagey about how it phrases its analysis.
Thursday, November 20, 2008
Questions about the exam
Here are some answers to a range of questions I have received about the final exam recently. Please let me know if you have others I have not addressed.
QUESTION: What will be the format of the exam?
ANSWER: A mixture of multiple-choice questions and one or two essay questions, roughly half of each.
QUESTION: Will the exam be open book?
ANSWER: Yes. All printed material is fair game, other than books checked out of the library. Your outline. Your friend's outline. Commercial outlines. Flash cards. Whatever. (For what it is worth, I do not think such things are very helpful, but that is for you to decide.)
QUESTION: Will you allow us to use our computers for any reason other than to write the exam, such as to access our notes saved in our hard drives.
ANSWER: No. If you want it at the exam, bring a hard copy. My apologies for the environmental degradation. For a more detailed explanation, please see my prior post on the topic here.
QUESTION: Can you provide any indication of what sorts of questions you tend to ask, or what types of answers you prefer.
ANSWER: I think the best indications would be my past exams and my model answers to those exams. All of my past exams, checklists for answers, and some complete model answers are posted on the ClaraNet course page.
QUESTION: Do you have any suggestion as to how to prepare for the multiple choice portion of the exam?
ANSWER: Unfortunately, I am not smart enough or creative enough to devise a set of parallel, "reject" multiple choice questions. But I think that the best indication of what my questions are like will be my past essay questions. The principal reason I use multiple choice questions is to cover more topics than I can possibly reach in a three-hour essay exam. To me, the perfect multiple choice question is a brief, essay-like fact pattern that calls on the student to successfully complete one, discrete step in the legal analysis. Thus, I think of multiple-choice questions as very similar to a short essay question, but where the student must only fill in a circle rather than taking th time to write out the analysis.
Again, if you have additional questions about the exam, please let me know, and I will be happy to answer them.
QUESTION: What will be the format of the exam?
ANSWER: A mixture of multiple-choice questions and one or two essay questions, roughly half of each.
QUESTION: Will the exam be open book?
ANSWER: Yes. All printed material is fair game, other than books checked out of the library. Your outline. Your friend's outline. Commercial outlines. Flash cards. Whatever. (For what it is worth, I do not think such things are very helpful, but that is for you to decide.)
QUESTION: Will you allow us to use our computers for any reason other than to write the exam, such as to access our notes saved in our hard drives.
ANSWER: No. If you want it at the exam, bring a hard copy. My apologies for the environmental degradation. For a more detailed explanation, please see my prior post on the topic here.
QUESTION: Can you provide any indication of what sorts of questions you tend to ask, or what types of answers you prefer.
ANSWER: I think the best indications would be my past exams and my model answers to those exams. All of my past exams, checklists for answers, and some complete model answers are posted on the ClaraNet course page.
QUESTION: Do you have any suggestion as to how to prepare for the multiple choice portion of the exam?
ANSWER: Unfortunately, I am not smart enough or creative enough to devise a set of parallel, "reject" multiple choice questions. But I think that the best indication of what my questions are like will be my past essay questions. The principal reason I use multiple choice questions is to cover more topics than I can possibly reach in a three-hour essay exam. To me, the perfect multiple choice question is a brief, essay-like fact pattern that calls on the student to successfully complete one, discrete step in the legal analysis. Thus, I think of multiple-choice questions as very similar to a short essay question, but where the student must only fill in a circle rather than taking th time to write out the analysis.
Again, if you have additional questions about the exam, please let me know, and I will be happy to answer them.
Schedule for office hours and exam review
Here is a schedule of when I will be holding additional office hours and a review session in the week leading up to our final exam.
Tuesday, December 2: office hours 10:30-2:30
Wednesday, December 3: office hours 10:30-2:30
Sunday, December 7: review session, 3:00, Room 142
Monday, December 8: office hours, noon-4:30
I generally do not make individual appointments for office hours, but instead speak with students as they come to my office. If several students arrive at the same time, I will move our discussion to a table in Benson, where a group can participate together. (I will leave a note on my office door if I do so.)
The review session, of course, is purely optional. I will not present any material, but instead merely answer questions in a group setting.
And I am sure you all realize this, but the purpose of my answering questions at this point in the course is to clarify issues that you have been unable to resolve on your own. That is, I am here to help you after you have tried to answer the questions yourselves. My job is to offer a framework, to organize the material, and to provide you with the tools for comprehension. But the work of learning is on you. To state it in more crass terms, something like "Can you just go over the dormant Commerce Clause again?" is a question I will not answer.
Again, I am sure you know this already, but a gentle reminder is sometimes helpful. Thanks.
Tuesday, December 2: office hours 10:30-2:30
Wednesday, December 3: office hours 10:30-2:30
Sunday, December 7: review session, 3:00, Room 142
Monday, December 8: office hours, noon-4:30
I generally do not make individual appointments for office hours, but instead speak with students as they come to my office. If several students arrive at the same time, I will move our discussion to a table in Benson, where a group can participate together. (I will leave a note on my office door if I do so.)
The review session, of course, is purely optional. I will not present any material, but instead merely answer questions in a group setting.
And I am sure you all realize this, but the purpose of my answering questions at this point in the course is to clarify issues that you have been unable to resolve on your own. That is, I am here to help you after you have tried to answer the questions yourselves. My job is to offer a framework, to organize the material, and to provide you with the tools for comprehension. But the work of learning is on you. To state it in more crass terms, something like "Can you just go over the dormant Commerce Clause again?" is a question I will not answer.
Again, I am sure you know this already, but a gentle reminder is sometimes helpful. Thanks.
Tuesday, November 18, 2008
We will have class next Wednesday
I know this will come as a disappointment to many of you, but our class will meet next Wednesday, November 26 (even though the civil procedure class is canceled). There are a variety of reasons for this, but at bottom (1) I feel an obligation to cover the material set out in the syllabus, as this is what you will all be expected to have mastered entering con law II, and (2) given your various schedules, it would be impossible to schedule a different time to make up the class. As I said on the first day of class, I understand when students choose to spend their time elsewhere (or, perhaps more accurately, I try not to be judgmental about it). So if you fell like you would rather be someplace else, that is your prerogative. At the same time, you all are paying an awful lot of money to be here. And I feel a strong professional obligation to hold up the school's end of the bargain.
Remaining reading assignments
The following sets out what we are likely to cover in our remaining class meetings, respectively.
Wednesday, November 19: the right to privacy and Roe v. Wade (pp. 850-868).
Monday, November 24: Planned Parenthood v. Casey, the government funding of abortion services, and (perhaps only start) Lawrence v. Texas (pp. 867-878, 897-901, 891-895, 920-932).
Wednesday, November 26: Lawrence v. Texas and the right to marry (pp. 821-827).
Wednesday, November 19: the right to privacy and Roe v. Wade (pp. 850-868).
Monday, November 24: Planned Parenthood v. Casey, the government funding of abortion services, and (perhaps only start) Lawrence v. Texas (pp. 867-878, 897-901, 891-895, 920-932).
Wednesday, November 26: Lawrence v. Texas and the right to marry (pp. 821-827).
Monday, November 17, 2008
Notes and the final exam
I will have a longer post addressing procedural questions concerning the final exam within the next week. But I thought I should address this one now.
QUESTION: I was wondering whether students will have access to their notes in the computer during the exam? In the past, I've taken an exam on examsoft, where access to my notes on the computer remained available (Professor Neustadler's Contract Exam). If possible, I would like that option available. Thank you very much for your consideration.
ANSWER: You are welcome for the consideration. But you are going to be disappointed with my answer, which is no. The short of it is that I am inherently conservative in tinkering with exam procedures, so my strong presumption is in favor keeping things the same. My underlying substantive concern with opening up laptops for such access is that it rewards students who (a) stuff exorbitant amounts of material on their hard drives, and (b) are able to access that material through various searches during the exam. And I am thinking not just about what is actually fair, but also various perceptions of fairness.
Thus, the answer is no. I will maintain the default setting in examsoft, which means you will not be able to access anything on your hard drive. The exam is completely open book. But if you want access to something, you need to bring it to the exam in a hard copy.
QUESTION: I was wondering whether students will have access to their notes in the computer during the exam? In the past, I've taken an exam on examsoft, where access to my notes on the computer remained available (Professor Neustadler's Contract Exam). If possible, I would like that option available. Thank you very much for your consideration.
ANSWER: You are welcome for the consideration. But you are going to be disappointed with my answer, which is no. The short of it is that I am inherently conservative in tinkering with exam procedures, so my strong presumption is in favor keeping things the same. My underlying substantive concern with opening up laptops for such access is that it rewards students who (a) stuff exorbitant amounts of material on their hard drives, and (b) are able to access that material through various searches during the exam. And I am thinking not just about what is actually fair, but also various perceptions of fairness.
Thus, the answer is no. I will maintain the default setting in examsoft, which means you will not be able to access anything on your hard drive. The exam is completely open book. But if you want access to something, you need to bring it to the exam in a hard copy.
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