University of Chicago Undergraduate Law Review
Archive for
The State of the Union and the Environment
The State of the Union and the Environment
By Julia Reinitz
President Barack Obama delivering the State of the Union Address
The first half of Obama’s term saw the passage of the Waxman-Markey Cap and Trade Bill in the House. Obama nearly quadrupled clean energy production on public land – and yet, portions of his State of the Union Address on January 24th advocated heavily for that environmental demon, fossil fuel.
Under the ambiguous umbrella of an “all-of-the-above strategy,” the President touted domestic oil production’s 16-year high, an alleged hundred year supply of natural gas, and plans to open 75 percent of our potential offshore oil and gas resources. While the address also included remarks about the importance of passing clean energy tax credit, the number of concrete proposals expanding clean energy was tiny compared to the number of concrete fossil fuel based proposals.
Why is this the case? Why such rhetoric from a President we all thought would be such a friend to the environment? There are a couple of reasons.
The most obvious reason is an election-year appeal to swing voters. These voters do not care how we lower demand for foreign oil, as long as we do so, and these voters believe in the mantra of Sarah Palin, “drill baby drill.” This constituency is not, however so conservative that they simply would not vote for Obama are courted big time with terms like “all-of-the-above strategy.” A 2011 Rasmussen poll found that approximately 50% of Americans would support drilling in the Arctic National Wildlife Reserve (ANWR). ANWR famously sits on lots of oil, but is also a crucial area of habitat preservation in Alaska. The Obama Administration could woo these voters by expanding oil and natural gas production. In a similar vein, plenty of people are unhappy with the likely presidential veto awaiting that Keystone Pipeline deal. Promising other development of fossil fuels would pacify the people unhappy with the Keystone decision.
Another likely reason relates to the Solyndra scandal plaguing the Obama White House. Solyndra, a company that made silicone-free solar panels, received $528 million in federal stimulus money, and declared bankruptcy in August 2011. American citizens were nonplussed and upset with the waste of government funds. Critics of the Obama Administration cited the incident as proof-positive that the federal government should not subsidize private clean energy efforts. As more information about the scandal surfaced, the situation only appeared bleaker for President Obama. The findings of a House panel indicated that an improper loan restructuring performed by the Department of Energy paid private investors before payment to the government in case of a default. Furthermore, an audit of all of the loan guarantees of the Department of Energy, such as subsidies to clean energy firms, is concluding this week. The breadth and depth of said audit demonstrates the extent of distrust in the Obama administration policies on renewable energy.
It is not easy for any administration to set energy policy. Political controversies emerge from the delicate balance amongst environmental concerns, energy needs, and economic interests. A good example is the recent concern over “fracking”, or hydraulic fracturing for fossil fuel extraction. Fracking illustrated the extent to which sweeping laws like the Clean Air and Clean Water Acts still leave huge amounts of room for interpretation. The issue isn’t helped, either, by the fact that high-level federal courts rarely make rulings on environmental issues.
If you are the president of these United States, you have to take all of these interests and issues into consideration when directing the EPA and making proposals to Congress. I understand why Obama took the State of the Union in the direction he did. I do not think, however, there is a good reason to back away from protecting ecosystems and natural resources, especially fear of conservative criticism and the media. Stop arguing over Keystone, and stop trying to place blame for Solyndra, and give us the clean jobs we were promised.
Julia Reinitz is a first year in the College.
Prop. 8: Unconstitutional?
Prop. 8: Unconstitutional?
By Sean McClelland
I think most of us at the University of Chicago can agree that Proposition 8, California’s ban on same-sex marriage, was a very frightening move in the wrong direction for one of the nation’s most progressive states. More worrying still, as with all propositions in California, Prop 8 was voted for by the people of California and approved by a majority of voters in the 2008 election. Following its tumultuous passage, it was challenged in Federal District Court in Perry v. Schwarzenegger (now Perry v. Brown in the federal courts), where it was ruled unconstitutional, but the judgment was stayed pending appeal.
Now, the 9th Circuit Court has handed down a ruling that effectively follows the landmark District Court decision, written by Judge Vaughn R. Walker. The Ninth Circuit Court ruled the Californian ballot initiative passed by the people deprived certain individuals of rights in violation of the 14th Amendment’s Equal Protection and Due Process Clauses. Though the case will likely end up in front of the Supreme Court, the current momentum of the ruling provides an interesting insight into how federal judiciaries envision the role of federalism, popular sovereignty and judicial power in the American constitutional system.
The most immediately interesting question the 2-1 Circuit Court decision attempts to answer centers on the constitutional weight held by popularly supported State initiative outcomes. While there has been a history of Supreme Court jurisprudence overruling state initiative decisions like Washington v. Seattle School District (1982), Perry v. Brown, the federal court case replacing Perry v Schwarzenegger, provides an interesting glimpse at the current state of federal interpretation of state initiatives. Though not a momentous decision in the jurisprudence on the matter, Perry v. Brown exemplifies a decades-long trend that places a broad interpretation of the 14th Amendment ideologically above a strong interpretation of the 10th Amendment.
Opponents of this trend in constitutional law claim that, despite the fact that Prop 8 was democratically passed directly by Californian voters, nationally ineffable conceptions of Equal Protection still prevailed unjustly. Of course, the reality is more nuanced. Clearly, the 14th Amendment applies to state legislatures, the traditional bodies of popular sovereignty. As such, it must surely apply to initiatives passed directly by the people.
While the case for gay marriage’s constitutionality over popularly passed initiatives may now seem cut and dry, it is important to look at the specific Equal Protection claims addressed in the decision. Most notably, the Circuit Court wields the Equal Protection Clause in defense of the rights that were retracted by Proposition 8, not in defense of the rights themselves. Prop 8, passed in response to the In re Marriage Cases, which the California Supreme Court struck down a previous ban on same-sex marriage, revoked rights previously held by a group of individuals. In this way, the Circuit Court sidestepped the thorny issue of the possible designation of homosexuals as a suspect class, which would grant them protections similar to those granted to African Americans, among other minority groups. Instead of protecting same-sex marriage absolutely, the Circuit Court protected it in the circumstances of California. This means that virtually every other state is free to ban the practice, so long as they are not revoking a right already given at any point.
Now, this sort of decision is to be expected and is, for the most part, the best that can be expected in terms of achieving marriage equality. The current framework for Equal Protection cases, as outlined by cases like Shapiro v. Thompson (1969), is based off a tiered structure of scrutiny that privileges “suspect classes” with a higher threshold for which government action can be accepted. That is to say that governments have a much harder time upholding the constitutionality of their legislation if the legislation discriminates against a suspect class like a racial minority. In Perry v. Brown, the Circuit Court noted that homosexuals could potentially be considered a suspect class, but that Prop 8 was already unconstitutional under a lower level of scrutiny. Without suspect class designation, however, nation-wide gay marriage is much harder to argue on Equal Protection grounds. At the same time, assigning such a designation is a fairly momentous move that would likely require more popular momentum behind the issue. It’s then clear that the Circuit Court was being very pragmatic in their decision, correcting a clear Equal Protection problem locally without getting ahead of public opinion on what has become a particularly thorny issue nationally.
Does this pragmatism mean that nationwide same-sex marriage isn’t going to happen until homosexuals receive a suspect class designation? No. While the Equal Protection route to gay marriage may be the most satisfying ideologically, a much stronger legal argument lies in the unconstitutionality of the Defense of Marriage Act (DOMA) via the Full Faith and Credit Clause (Article 4, Section 1). There is a definite argument to be made that DOMA, which establishes that no U.S. state can be required to recognize the legality of a same-sex marriage performed in another state, violates societal contract components of the Full Faith and Credit Clause. Whatever the path towards constitutionality, however, it is clear that the Circuit Court’s decision this week in Perry v. Brown was nothing if not pragmatic. It is a logical, well-argued piece that, ultimately, does not rock the boat of judicial precedent.
Sean McClleland is a second year Law, Letters, and Society Major in the College.
Regional Economic Exceptions Threaten Supranational Cohesion in the EU
Regional Economic Exceptions Threaten Supranational Cohesion in the EU
By Sean McClelland
Apparently, Swedes love their snus. Snus is an orally ingested form of tobacco consisting of wrapped packets of moist leaves, placed for extended periods under the lip of the consumer. Since the 19th Century, snus has been manufactured, distributed and consumed in Scandinavia, receiving widespread popularity in Norway and Sweden. Sometimes hailed as a substitute for smoking, it has become remarkably culturally relevant to Swedes in particular, who view the EU’s attempt to ban the manufacture and sale as a commercial and cultural assault on Sweden’s smokeless tobacco industry.
The snus battle is but one of many points of economic contention in a trans-national community that is becoming increasingly defined by a war over unique regional economic policies. Under the current sovereignty distribution scheme, the European Union is forced to make legal and regulatory compromises with joining states, often erecting barriers to the efficient functioning of the Eurozone as a whole.
At the same time, these exemptions often foment discontent among existing member countries. This holds particularly when economic calamity strikes periphery states like Greece, which has had instances of idiosyncratic pieces of legislation that discriminate against non-Greek Europeans. Ultimately, the clash of regional economic ideology in exemption-seeking member states gets to the very core of many issues plaguing the Eurozone as a whole. Similarly, the European attempt to form and maintain a union of disparate economic interests – let alone social, cultural and political interests – brings to memory many of the struggles in the early years of the United States’ own sovereignty distribution scheme—federalism.
Without a doubt one of the most monumental news sagas in recent memory has been the Eurozone scramble to scrape together enough cash to save Greece from certain financial ruin. Interestingly, this long frenzy has come to be defined not by the largely expected Greek resistance to austerity measures, but instead by the intense hand wringing and inaction on the part of Northwest EU states. At its core, this precipitous time was spurred by deeper-seated economic differences between the core, rich European countries and the poorer periphery. Rich states like Germany, who originally outlined the powerful rhetorical language of EU charters prohibiting discrimination against nationalities (the clearest example can be found in Article 21 Section 2), became outraged at periphery countries and threatened to withhold funds vital to economic rescue.
Most threatening to the cohesion of the European Union, however, was a willingness years earlier to overlook the financial problems of entering member states. Greece was largely admitted to the Eurozone (and, importantly, reached the highest level of integration in the European Monetary Union—adopting the Euro as common currency) despite no visible progress towards cooperation with critical economic regulations outlined in EU charters. Among the charters, those concerned with deficit limitation (for example, Article 126 of the Treaty on the Functioning of the European Union, under which deficit limit was set at roughly 3% of GDP) were routinely ignored by Greek legislators and, indeed, not adequately enforced upon Greece by core EU countries.
In fact, as later became clear, the flaw in the EU’s structure lied in the relatively weak ability of the central EU authorities to force member states to adopt any sort of regulatory scheme; any sort of deficit-reduction matter would have to be pushed upon Greece under threat of default.
As a burgeoning political confederacy, the EU shares many traits with the United States under the Articles of Confederation and, indeed, American sovereignty distribution up until the Civil War. Even in the post-Civil War era of federal dominance, many powerful statutes at the national level are only able to influence the states by dangling fund incentives or threatening grant reductions. For example, Sections 1122 and 1124 of No Child Left Behind encourage states to “teach to the test” in order to earn federal grants. Using the proverbial stick, Section 158 of The United States Code on Highways outlines the manner in which the federal government can withhold highway funds from states that do not comply with minimum drinking-age laws. Acts like these manipulate portions of the American Constitution such as the 14th Amendment, The Commerce Clause (Article 1, Section 8, Clause 3) and the Supremacy Clause (Article 6, Clause 2) to get around the spheres of power held by the states under the 10th Amendment.
Looking at the trajectory of the United States—a transition from decentralized power reminiscent of the modern European Union to a system more or less dominated by a federal government intent on pushing its agenda upon the states—gives us a glimpse as to how the regional exceptions in the EU may pan out. Either the Swedish snus industry (or Greek’s high deficits) gets curtailed, the European Union earns stronger enforcement mechanisms and existing regional exceptions get systematically removed in favor of a stronger centralized European authority or the threats to social cohesion (whether social, political or economic exceptions) prevail. That is to say that the European Union must either become more federal or must devolve into something more akin to a free trade area. Europe’s current regulatory regime that is predicated on the interaction of uniquely individualized countries interacting within a weak regulatory community is inherently at odds with the current paragon of European achievement: the Euro.
Either the EU becomes more cohesive, specifically abolishing regional exceptions, or suffers the fate of the Articles of Confederation, which aptly described their doomed framework as a “firm league of friendship.”
Sean McClelland is a second year Law, Letters, and Society major in the College.
McCleskey v. Kemp: The Dred Scott Decision of Our Time?
McCleskey v. Kemp: The Dred Scott Decision of Our Time?
By Margaret Sivit
In McCleskey v. Kemp (1987), the United States Supreme Court issued a controversial ruling on the role of race in the criminal justice system. The case was an appeal of a sentencing in the 1978 case of Warren McCleskey. In the original case from Atlanta, Georgia, McCleskey was found guilty of murdering an off-duty police officer and was sentenced to death. McCleskey subsequently appealed the conviction, and the case arrived in the Supreme Court in August of 1986.
The defense team for McClesky intended to show that this ruling was unconstitutional, arguing the jury members were predisposed to racial prejudice. In a 5-to-4 vote, however, the Supreme Court ruled sentencing disparities for similarly situated defendants were “an inevitable part” of the administration of justice. Furthermore, “any mode for determining guilt or punishment has its weaknesses and the potential for misuse.” The Court upheld the original verdict, and McCleskey suffered execution by Georgia’s electric chair in September 1991.
McCleskey v. Kemp highlighted findings from a 1983 study contemplating the connection between race and the death penalty, conducted by David Baldus, George C. Woodworth, and Charles A. Pulaski, Jr. The “Baldus study,” as it came to be known, compiled data from the prosecutions of over 1,000 Georgia homicides and subjected them to an intensive statistical analysis. After controlling for 39 nonracial variables, the authors of the Baldus study concluded that defendants accused of killing white victims were 4.3 times as likely to receive the death penalty – of these defendants, those who were black were most likely to be sentenced to death.
The official handbook for trial jurors in the United States asserts that as the protectors of life, liberty, and the pursuit of happiness, members of the jury “must be men and women possessed of sound judgment, absolute honesty, and a complete sense of fairness.” The Baldus study indicates that one’s outward “complete sense of fairness” may be undermined by subconscious biases. As the Supreme Court acknowledged, such a claim:
“Throws into serious question the principles that underlie the entire criminal justice system… [and] easily could be extended to apply to other types of penalties and to claims based on unexplained discrepancies correlating to membership in other minority groups and even to gender.”
However, the Court felt that to upend the criminal justice system on such “potentially irrelevant factors” was unnecessary and unwarranted. The Court statement indicated without “exceptionally clear proof” of an active and purposeful “intent to discriminate,” there was no evidence of racial bias.
John Dovidio, professor of Psychology at Yale University, believes that explicit, conscious racism in the United States is on the decline, while subconscious racism is becoming increasingly ingrained in the American psyche. His views are corroborated by a social neuroscience study completed at Yale last month, in which authors Harrison Korn, Micah Johnson, and Marvin Chun used both traditional tests of racial bias and neuroimaging to predict how much money subjects would award victims of hypothetical employment discrimination cases. The traditional black/white, good/bad Implicit Association Test (IAT) were unable to make accurate predictions; however, fMRI (functional MRI) scans measuring neural activity in the right inferior parietal lobule and the right superior/middle frontal gyrus – both areas associated with visceral prejudices and preferences – could be used to make accurate predictions about a “juror’s” decision to award money to a “victim.” According the study’s authors, the results are significant because they show “that neuroimaging data can measure a racial bias that is reflected in juror decisions more effectively than a common behavioral measure–– the IAT.”
Even so, the IAT is a significantly better indicator of social biases than the method currently used for jury selection, which relies on self-reported measures of prejudice.
Korn et al. point out that, due to potential cost and privacy concerns, they “are not suggesting that potential jurors be put in an MRI machine during jury selection for cases where race is salient.” However, their results show that, as explicit racism is increasingly subverted to visceral prejudices, the active “intent to discriminate” is no longer a sufficient marker of the unjust juror. The Sixth Amendment states that every defendant has the right to be tried by “an impartial jury;” accordingly, the jury selection process should be reformed in order to take into account implicit as well as explicit biases. While a truly impartial jury may be impossible, we do not have to resign ourselves to regarding race-based sentencing as inevitable.
Margaret Sivit is a second year in the College.
