L.A. City Councilman Thomas Bradley Statement on Senator Edmund S. Muskie\u27s Comments

Date: September 8, 1971 L.A. City Councilman Thomas Bradley responds to Senator Edmund S. Muskie\u27s comments on the possibility of a Black vice presidential candidate, calls Muskie\u27s honesty a fresh breath of air.https://scarab.bates.edu/msp/1131/thumbnail.jp

Ask Me No Question, I'll Tell You No Lies: Does the Bradley Effect Still Exist?

Since African-Americans began competing in elections in majority white districts, researchers have postulated that some whites were reticent to tell pollsters that they intended to vote for the white candidate, causing polling to be inaccurate. Prior to 2006, it was difficult to determine empirically whether the Bradley Effect existed, and if it did, how powerful of a factor it was, since there were relatively few cases to examine. This study examines the 2006 electoral contests that pitted African-Americans versus whites, and analyzes the Democratic primaries and caucuses in the 2008 presidential race. We find that a Bradley Effect did exist in about half of the 2006 elections and in about one quarter of the 2008 primaries. However, a ‘reverse’ Bradley Effect occurred about as often

Treaty Termination and the Presidency: Using Custom to Solve Separation of Powers Disputes

The debate over whether the President, the Senate, or the Congress has primacy in treaty termination remains unsettled. Professor Curtis Bradley incorrectly argues that custom supports a presidential authority to terminate treaties independently. This paper argues that a fuller view of custom, combined with the Intent of the Framers and functional considerations, shows treaty termination is a shared executive-legislative power

NH Presidential Race Tightens as GOP Support for McCain Grows 11/1/2008

The presidential race in New Hampshire between Democrat Barack Obama and Republican John McCain has grown tighter in recent days as Republicans decide to put their support behind their party’s nominee. Democrat Jeanne Shaheen continues to hold her lead against incumbent Republican John Sununu in the U.S. Senate race, and incumbent Democrat Carol Shea-Porter has extended her lead over Republican Jeb Bradley in the First Congressional District. Election: 200

Exiting Congressional-Executive Agreements

Commentators have argued that, even if the president has the unilateral authority to terminate Article II treaties concluded with the Senate’s advice and consent, the president lacks the unilateral authority to terminate “congressional-executive agreements” concluded with majority congressional approval, such as the North American Free Trade Agreement (NAFTA). This Article challenges that claim. If one accepts a presidential authority to terminate Article II treaties, this Article contends, there is no persuasive reason to conclude differently with respect to congressional-executive agreements. Congressional-executive agreements have become largely interchangeable with Article II treaties as a matter of domestic law and practice. For example, either instrument can be used to address matters relating to international commerce and trade. Moreover, while presidents cannot unilaterally terminate statutes, congressional-executive agreements are not mere statutes. They are, like Article II treaties, binding international instruments that can be concluded by the United States only through presidential action. These agreements also typically contain withdrawal clauses similar to those contained in Article II treaties, which presidents have long invoked unilaterally, and Congress has never indicated that presidents have less withdrawal authority for such agreements. Indeed, in its trade legislation, Congress appears to have accepted that presidents may invoke such clauses unilaterally

Emergency Power and Two-Tiered Legality

Commentators have long debated how to think about the relationship between law and presidential power during emergencies. Three distinct positions have emerged in that debate. First is the strict approach: that the president is subject to the normal constitutional and statutory laws even during emergencies. Second is the accommodation approach: that constitutional and statutory law should be interpreted to allow for more expansive presidential power during time of emergency. Third is the extralegal approach: that exercises of emergency authority should be understood as operating outside the law, potentially with some sort of after-the-fact evaluation of whether the exercise was functionally or morally justified1. Each of these approaches has potential drawbacks. The strict approach’s denial that the interpretation of constitutional and statutory authority changes during times of emergency seems naïve and threatens to make the law either too restrictive or too disconnected from actual practice. The accommodation approach, by allowing governmental authority to expand during time of perceived emergency, may allow the government to opportunistically ratchet up its power and may create precedent that could distort the law during more normal times. The extralegal approach, by placing exercises of emergency authority outside the law, may leave these actions unregulated and undermine the rule of law, and it may be unrealistic if it depends on an acknowledgment by public officials of illegality. In his thoughtful essay, Richard Fallon has added to this debate by suggesting an approach that attempts to keep emergency power within the domain of law while reducing the danger that exercises of this power will corrupt the rest of the law.2Analogizing from “threshold deontology” in moral theory, Fallon suggests a distinction between the rules of constitutional and statutory interpretation that apply during normal times and those that apply during emergencies. Citing Justice Holmes’s observation that “[g]reat cases . . . make bad law,” 3 Fallon’s chief concern is the “problem of normalization: powers created for emergencies spill over their originally intended banks and become the norm.”4 His approach, he suggests, addresses this concern while retaining the rule of law. It also “fits our historical and contemporary practices for gauging the scope of executive authority.”5 At first glance, Fallon’s approach may seem to be a restatement of the accommodation approach. After all, his claim that “[w]hen consequence-based imperatives possess sufficient urgency, it is right to conclude, as a matter of law, that the president can do some things that would be flatly illegal or unconstitutional under the ordinarily applicable rules,” 6 is precisely the claim made by accommodationists. But Fallon’s position is potentially distinguishable in two respects. First, Fallon hypothesizes a two-tiered model that involves both normal law, akin to what is envisioned by the strict approach, as well as a category of emergency law, with the latter limited to “highly exigent cases.”7 Second, Fallon suggests that presidential actions that can be legally justified only in the emergency category “should be regarded as lesser legal evils that are regrettably in breach of,” and not wholly reconcilable with, “ordinary legal and constitutional ideals that emergency does not eradicate.”8 By having the emergency category conceptualized as narrow and as tainted, the hope is that it will be sufficiently cabined to avoid corrupting the rest of the law. Fallon’s analogy to threshold deontology is useful in highlighting some of the dilemmas that emergency power can pose for the law. Nevertheless, I have doubts about the need for, or usefulness of, two-tiered legality. As an initial matter, it is not clear that the idea of a regrettable lesser evil has broad relevance to real-world issues of statutory and constitutional law relating to presidential power. In addition, I question whether Fallon’s central concern—that the accommodation approach will lead to the creation of precedent that will corrupt the rest of the law—is borne out by practice. Nevertheless, I understand Fallon’s anxiety about the danger that the executive branch might extend its authority by tendentiously relying on past practices. This anxiety, I would suggest, relates to the general role of historical practice in informing presidential authority rather than anything specific to the emergency power context, and I therefore question whether a two-tiered legality approach would do much to address it

AGORA: Reflections on Zivotofsky v. Kerry : Historical Gloss, the Recognition Power, and Judicial Review

The U.S. executive branch has long declined to recognize any country’s sovereignty over Jerusalem, insisting that the matter be worked out through negotiations between Israel and the Palestinians. The U.S. Congress, by contrast, has tended to support Israeli sovereignty over the city. In 2002, Congress enacted the Foreign Relations Authorization Act for Fiscal Year 2003, Section 214(d) of which provides that, “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”1 Both the Bush Administration and the Obama Administration declined to comply with this statutory directive. In Zivotofsky v. Kerry(Zivotofsky II), the Supreme Court sided with the executive branch, holding that Section 214(d) unconstitutionally interferes with the exclusive authority of the President to recognize foreign sovereigns.2 The focus of this essay is on the Court’s methodology rather than its conclusion. In particular, the focus is on the Court’s reliance on the historic practices of Congress and the executive branch in support of the Court’s finding of an exclusive presidential recognition power. Reliance on such practice—also known as “historical gloss”—is common in constitutional interpretation relating to the separation of powers. For a variety of rea-sons, however, there are unlikely to be many instances in which historical practice will clearly establish an exclusive presidential power. In Zivotofsky II, the relevant practice provided clear support only for a power of recognition and was ambiguous about whether this power was concurrent or exclusive. The Court’s assessment of the practice, therefore, appears to have been affected by other considerations, such as the Court’s perception about the consequences of adopting a particular interpretation. This is not necessarily an indictment, given that a similar dynamic often characterizes other aspects of constitutional interpretation, including textual analysis. It is probably fair to say, however, that whereas in some cases historical practice shapes perceptions about other interpretive materials, in Zivotofsky II the principal direction of influence was the other way around. The decision also highlights tensions between a custom-based approach to the separation of powers and the institution of judicial review, tensions that are potentially relevant both to the proper scope of justiciability doctrines as well as to the way in which judicial decisions are best formulated

Presidential Power, Historical Practice, and Legal Constraint

The scope of the President’s legal authority is determined in part by historical practice. This Essay aims to better understand how such practice-based law might operate as a constraint on the presidency. Some scholars have suggested that presidential authority has become “unbounded” by law, and is now governed only or primarily by politics. At the same time, there has been growing skepticism about the ability of the familiar political checks on presidential power to work in any systematic or reliable fashion. Skepticism about law’s potential to constrain in this context is heightened by the customary nature of much of what purports to be the law of presidential power, and by the limited availability of judicial review. As the Essay explains, no examination of whether law constrains the President can succeed without careful specification of what constraint entails and how it relates to distinct but related phenomena like genuine disagreement about the content of the law. After attempting such specification, the Essay identifies various internal and external causal mechanisms through which law, including practice-based law, could constrain the President. The Essay explains, among other things, that one way that law might constrain the President is through the simple fact that issues of presidential power are publicly criticized and defended in legal terms. To gain additional traction on the topic, the Essay considers two other areas of debate that pose analogous questions about the constraining effect of law: whether the doctrine of stare decisis (itself a practice-based norm) constrains Supreme Court decision making, and whether international law (including the international law that is based on customary practice) constrains the behavior of nation-states. The Essay concludes by suggesting some avenues of possible empirical research

National Newspaper Analysis of the Press Coverage of Jesse Jackson\u27s 1984 Presidential Campaign: The Confirmation of the Candidate

Jesse Jackson\u27s 1984 and 1988 presidential campaigns have motivated thousands of citizens throughout America to take a more active role in politics. The 1984 campaign witnessed many previously unregistered Americans actively participating in Jackson\u27s call to join the Rainbow Coalition. Four years later, Jackson once again hit a responsive chord within the American electorate, broadening his support base in his second run for the White House. His vibrant campaigns presented challenges not only to the American system of government, but also to accepted journalistic traditions in campaign reporting. Specifically, the dilemma has been a difficult one for journalists responsible for campaign coverage. How much coverage should a reporter give to Jesse Jackson\u27s campaign? Should he be treated like an Alan Cranston or Gary Hart in 1984, or a Paul Simon or Albert Gore in 1988? Or does the historical impact of his being the first black candidate to make a serious bid for the presidency warrant a different approach to press coverage? Highlighting this dilemma in the 1984 campaign, Dates and Gandy note: Jackson\u27s candidacy was a challenge for the press because on the one hand journalistic traditions would dictate that the ideological orientation of the media organization would constrain its coverage to be consistent with longstanding editorial practice.[1