Parameters of Executive Power

By: Giliann Karon

Edited By: Grace Gay

In his concurring opinion in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), Justice Robert Jackson wrote that presidential powers are not fixed and emphasized the executive branch’s “separateness but interdependence.” [1] He divided the executive power that the president can delegate to the legislative branch into three categories: implied power, the “zone of twilight,” and the “lowest ebb.” The president has maximum authority when he acts in accordance with express or implied powers from Congress and the Court is unlikely to strike down these actions. In the “zone of twilight,” the president acts without congressional authorization and it is uncertain whether the president’s actions will be struck down. Instead of measuring the constitutionality of the president’s power against legal theories, the Court must take current events into account. When the president’s power is at its “lowest ebb,” the actions are the most likely to be struck down because they are incompatible with express or implied congressional power. Through analysis of a select number of Court cases spanning from Abraham Lincoln to George W. Bush through the lens of Justice Jackson’s test, I have established legal parameters for when a president can and cannot infringe on fundamental rights. During times of war, the Court is far more lenient than in times of peace. If the Executive Branch claims that the action in question is in the interest of national security, the Court will more than likely deem it constitutional, no matter how unethical it may be. 

The executive branch enjoys more power during times of war than during times of peace. The Court unanimously ruled that the president is not entitled to absolute executive privilege in US v. Nixon 418 U.S. 683 (1974). [2] They acknowledged that the president can prevent the release of some information if it is necessary for national security, but if Nixon withheld the tapes, the special counsel could not carry out its duties of administering justice.

During times of peace, however, the president cannot curtail constitutional rights without meeting an incredibly high level of scrutiny. While investigating President Richard Nixon’s involvement with the Watergate break-in, Special counsel Leon Jaworski sought a court order requiring Nixon to hand over tape recordings from the Oval Office. Nixon refused to comply, claiming executive privilege because there is a need for confidentiality of communications within the executive branch. If the president could claim executive privilege to prevent being implicated in a criminal trial, what else could he claim executive privilege over? The fair administration of justice was more important than the need for confidentiality within the White House. Nixon released the tapes and resigned shortly after. This ruling placed parameters on when the president can invoke executive privilege and ensured that no one is above the law. After the Watergate scandal, Congress passed a provision as part of the Ethics in Government Act of 1978 authorizing the Attorney General to establish an independent counsel to investigate violations among high-ranking government officials. The counsel could exercise all the powers of the Justice Department, even though it was created by the executive branch. The Attorney General would have limited oversight and could only remove the counsel if they were unable to carry out their duties or if the investigation was complete.

A body within the executive branch had comparable powers to the Justice Department, so there were concerns over possible separation of powers violations, specifically the Appointments Clause because the president did not directly appoint the independent counsel. In a 7-1 ruling, the Court found that the Act did not violate the Appointments Clause because the independent counsel was an inferior officer, so they could be appointed by three judges instead. The process of appointing the counsel did not violate separation of powers because it did not interfere with the executive branch’s other responsibilities or take away power from the branch. 

The ruling in Clinton v. Jones 520 U.S. 681, 117 S. Ct. 1636 (1997) held that the Constitution does not grant the president immunity from civil litigation over events that took place before he took office. [3] President Bill Clinton made unwanted sexual advances on Paula Jones, a state employee, while he was governor of Arkansas. Jones rejected Clinton’s advances and her supervisors at work retaliated by demoting her. When she sued for damages in federal district court, Clinton tried to invoke presidential immunity to get the suit suspended. Instead, the judge granted a stay until Clinton left office.

Both parties appealed. The appeals judge denied Clinton’s request, holding that the president is subject to the same laws as any other citizen. If she stayed the case until the end of Clinton's term, she would grant him a degree of presidential immunity. Clinton asked the Supreme Court to reverse the decision because he believed the Framers recognized that the president is different from an ordinary citizen. He also claimed that civil lawsuits would be distracting. The Court unanimously held that the president is only immune from civil litigation under exceptional circumstances. No precedent supported Clinton’s invocation of immunity for a civil suit over actions from before he took office. They also held that the president’s involvement in a civil suit does not violate separation of powers because the judicial branch is not performing any powers of the executive branch.

There is far more accountability within the executive branch during times of war than in times of peace. During wartime, the president cannot turn the country into a police state, but the Court is more forgiving of increased surveillance and militarism. As commander-in-chief, the president must defend the country from enemy forces. The president often tinkers with due process rights to safeguard American citizens and interests, as was the case in Korematsu v. U.S., 323 U.S. 214 (1944). [4]

After the bombing of Pearl Harbor and the anti-Japanese mass hysteria, President Franklin Delano Roosevelt signed Executive Order 9066, which authorized the relocation of Japanese-Americans into detention centers. Fred Korematsu, who was born in California to Japanese parents, was arrested because he refused to relocate. At the beginning of World War II, he underwent surgery on his eyelids and started going by Clyde Sarah to pass as white.

He argued that EO 9066 violated the Equal Protection clause of the Fifth Amendment because it discriminates on the basis of race, as well as the Due Process clause of the Fifth Amendment because it deprived him of the same rights of other citizens without due process, but the Court ruled against Korematsu. Justice Black, writing for the majority, said that laws restricting civil rights on the basis of race are not inherently unconstitutional. They are just subject to a stricter level of scrutiny. He acknowledged Korematsu’s hardships, but contended that hardships are a part of war and every American must pay their dues. Justice Frankfurter, concurring, believed the president’s actions must be “judged wholly in the context of war.” The president’s duty to prevent further aggression from Japanese forces justified the executive order according to the Court.

The Court has also allowed for more military aggression without a formal declaration of war. In the Prize Cases 67 U.S. (2 Black) 635 (1863), President Abraham Lincoln imposed a naval blockade of Southern ports after the Southern states seceded. [5] Union forces seized four ships that had been trading with the Confederacy. The ship owners declared the seizure unconstitutional because there was no official declaration of war. The Court determined that Lincoln’s actions did not amount to piracy and his blockade was constitutional absent a declaration of war because the Union was in a state of insurrection. When the current situation meets the requirements for war, regardless of whether Congress has issued a declaration, the president has more authority to enact measures that hinder the enemy’s military capabilities, including blockades and seizure of property.

Cases from George W. Bush’s administration held that the executive branch cannot fully suspend the rights of American citizens during wartime. In the wake of September 11th, Congress passed the Authorization for Use of Military Force, which allowed the president to use all necessary and appropriate force against countries, organizations, and people with links to terrorism. US-backed Afghan forces captured Taliban soldier Yaser Esam Hamdi, declared him an enemy combatant, and sent him to Guantanamo Bay. Since he was an enemy combatant, he could be held indefinitely without trial, pursuant to the AUMF. Upon discovering that Hamdi was an American citizen that moved to Saudi Arabia as a child, he was transferred to a military prison in Virginia. His father filed a petition for habeas corpus on his son’s behalf, alleging that indefinite detention without trial or access to legal assistance is a violation of due process. The Court held that Hamdi’s detention was unlawful because as long as he was held in the United States, he was entitled to due process. He was also entitled to due process because he was an American citizen, even though he was aligned with the Taliban. Justice O’Connor, writing for the plurality, emphasized that a “state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.” The decision did not address the rights of non-citizen detainees.

Guantanamo Bay detainees have no right to trial and restricted access to counsel, but Boumediene v. Bush 553 U.S. 723, 128 S. Ct. 2229 (2008), greatly expanded detainees’ legal rights by allowing them to bring habeas corpus petitions to federal court. [6] In 2002, Bosnian police arrested Lakhdar Boumediene and five accomplices for planning an attack on the US Embassy in Bosnia. The United States government deemed them enemy combatants and sent them to Guantanamo Bay. Boumediene petitioned for a writ of habeas corpus, but the District Court said he did not have a right to a habeas petition because he was not an American citizen and Guantanamo Bay is not in the United States. Four years later, Congress passed the Military Commissions Act of 2006. Section 7 prevented federal courts from hearing habeas petitions from enemy combatants detained overseas. Detainees could only be tried in military commissions. Boumediene petitioned again, arguing that the MCA violated the Suspension Clause, which only permits the suspension of the writ in cases of rebellion or invasion. The D.C. Circuit Court held that in 1789, the Suspension Clause only applied to American citizens on American soil. Even though Guantanamo Bay is on land that the United States leases from Cuba, the region is not within America’s borders. The Supreme Court denied Boumediene’s petition for a writ of certiorari, but reversed their decision three months later. In a 5-4 decision, they held that Section 7 violated the Suspension Clause, the due process clause of the Fifth Amendment, and the Geneva Conventions. Their decision restored federal courts’ jurisdiction over habeas petitions filed by Guantanamo Bay detainees.

The Bush administration best exemplifies how times of crisis justify enormous expansions of presidential power that snowball until America becomes a surveillance state predicated on a climate of fear. And if it’s under the guise of national security, the Supreme Court will usually let it stand.

Boumediene was one of those rare cases where the Supreme Court emphasized the importance of habeas corpus. If prisoners cannot challenge their unlawful detention, there is no way to hold the legal system accountable and reform the law. Allowing the vilest terrorists to have their day in court under a fair legal system is the crux of human rights. Regardless, Bush enacted wide-reaching surveillance programs and chipped away at detainees’ legal rights because he was acting in the interest of national security, and the United States was at war. The Court is quick to strike down executive actions that marginally reach beyond constitutional boundaries during times of peace.

Would FDR have been able to relocate Japanese-Americans if Pearl Harbor had not been attacked? Would Nixon have been able to keep the tapes if they contained classified information about a military strategy? There’s no way of knowing for sure, but the Court most likely would have struck down both of these cases. The president’s powers are clearly established, but they are not fixed. History will not be kind to those who supported Executive Order 9066 or Bush’s foreign policy measures. But the point is, the Court held that the president must have the ability to act beyond the powers specifically delegated in the Constitution in order to protect the country from enemies foreign and domestic, and the Court must take current events into account while protecting equality and due process.

NOTES:

1. Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952)

2. US v. Nixon 418 U.S. 683 (1974)

3. Clinton v. Jones 520 U.S. 681, 117 S. Ct. 1636 (1997)

4. Korematsu v. U.S., 323 U.S. 214 (1944)

5. Prize Cases 67 U.S. (2 Black) 635 (1863)

6. Boumediene v. Bush 553 U.S. 723, 128 S. Ct. 2229 (2008)

BIBLIOGRAPHY:

Thomas G, Epstein, Lee Walker, Constitutional Law for a Changing America - Institutional Powers and Constraints (Washington, DC: CQ Press, 2015)

Legal Realism in International Law

By: Assem Belhadj

Edited by: Dheven Unni, Michelle Pak, and Kirsten Huh

One of humanity’s most unique evolutionary traits is collaboration. As our social systems expanded and developed, social rules were formed to delineate which kinds of behavior are and are not acceptable. These laws evolved and have manifested in various ways as we developed distinct cultures and legal systems. With increasing globalization, our laws, legal traditions, and cultures have increased their contact with one another, creating a need for nations to collaborate further culminating in the emergence of international law and the International Court of Justice (ICJ). While it is difficult to reach global consensus on universal human rights and values, approaching international law through a legal realist approach—which affirms that jurisprudence should rely on empirical methods—allows for international judges to arrive at more objective decisions without giving preference to any legal tradition or succumbing to geopolitical influences.

British legal philosopher H. L. A. Hart, in his book The Concept of Law, described the law as the union of primary rules and secondary rules. Primary rules govern societal conduct and outline rules and consequences when they are not followed. [1] Secondary rules define what counts as the law, how laws can be changed, and how individuals judge the application of the law. [2] What separates laws from other rules is that laws are enacted through political processes. The meaning and viability of the law usually come into question during legal cases, requiring a methodology of interpreting the law that can ensure philosophical consistency and fairness. 

On the international stage, laws are usually derived from rules that govern nations’ conduct. International law is a relatively new legal system, set up along the lines of the UN ICJ Statute. Article 38 directs the ICJ to use “international conventions, … international custom, … the general principles of law recognized by civilized nations, [and]… judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” [3] However, what happens when these sources of international law contradict one another based on differing legal traditions? Or when they result in decisions by the ICJ that serve national interests rather than the international community? While some of these sources of international law are based on commonly accepted principles (jus cogens) or agreements between nations, seats distributed by geographic region attempt to account for differences in legal traditions: five for Western countries, three for African countries, two for Eastern European countries, three for Asian countries, and two for Latin American and Caribbean countries. [4] To account for the differences in legal traditions, the inconsistencies in the sources of international law, and to interpret the law with fairness to the international community, international legal jurisprudence must seek objective, empirical methods through which to make legal decisions. A legal realist approach would recognize that law is indeterminate due to its ambiguities, and that the law as it exists is separate from the law as it should be. [5] The law and its applications, however, are inseparable, and to properly evaluate and interpret the law, it must be tested through natural observations. This approach would benefit the objectivity in international legal cases, as judges would draw logical conclusions based on real-world observations independent of political interests and subjectivities, rather than relying on legal traditions or engaging in moral quandaries.

To achieve this objectivity, legal interpreters must understand how the law is practiced and is observed in society. The development of legal realism in the 20th century exposed the extent to which politics influences judicial decision-making and questioned earlier methods of impartial legal interpretations. [6] Legal realism allowed for the focus to be placed on the law in practice rather than in text. The actions of judges and the factors that led to their decisions were analyzed closer as human behaviors, leading legal realists to turn to social scientific methods to hypothesize legal outcomes. [7] Additionally, the developments in understanding society that have occurred in the century since legal realism was pioneered expanded the methods of understanding the law and its applications. Novel empirical methods in social scientific inquiry provide international legal scholars and judges with new ways to test hypotheses and make more scientific conclusions on international law. To account for these modern developments, a “New Legal Realist understanding of international law …  [takes into consideration] how international law obtains meaning, is practiced, and develops over time.” [8] This New Legal Realist (NLR) approach utilizes modern methods to broaden the sociological analysis of international law. Legal realism is not only grounded in objectivity, but also can progress with developments in the social sciences, further solidifying its importance in the future of international legal decisions. 

With the progressive nature of the NLR approach to international law, there arises the question of the role of past precedent in ICJ rulings. However, the ICJ statute explicitly excludes past decisions in the sources of international law. Former President of the ICJ, Gilbert Guillaume, wrote that “in developing its jurisprudence, the Court may refer to its precedent, but it has no binding character.” [9] Invoking stare decisis in the ICJ may challenge an NLR view that relies on the development of social scientific inquiry. But further challenges arise within an NLR ideological framework: how could stare decisis be based on the ever-changing social scientific consensus? Another challenge arises in considering the non-Western legal traditions that may not place importance on stare decisis. In order to deal with these challenges, international legal jurisprudence should first disregard attempts to legitimize stare decisis in ICJ decisions as it has no “binding character” in the sources of international law. Consequently, within an NLR approach, precedent should not be invoked to account for the ever-changing nature of social scientific inquiry. This provides leeway for international justices to determine which social scientific methods and conclusions are legitimate. The merits in this leeway arise when considering that no single scientific view will hold authority over court decisions, but this leeway will also let judges to provide their own argumentation on the methods they use which may lead to a variety of decisions being made under the facade of NLR. These challenges to legal realism in international law are vital to consider when seeking an international jurisprudence that can remain impartial to geopolitical influence.

Various traditions, values, and cultures make human groups distinct, which makes international jurisprudence more difficult. The most direct way to overcome these differences to arrive at common legal truths, however, is to empirically and logically interpret international law and its applications. International law exists to regulate behavior between states and using established truths of reality can allow for fairer and more just international legal systems. Once international law reaches this level of objective fairness, nations can be held accountable regardless of politics. This international justice can let us reach new, global heights of human collaboration and progress.

NOTES:

1. Hart, “The Concept of Law,” 81.

2. Hart, “The Concept of Law,” 79-99.

3. “Statute of the International Court of Justice”

4. Harris, “Cases and Materials on International Law,” 839.

5. Llewellyn, “Some Realism about Realism: Responding to Dean Pound,” 1222.

6. Bybee, “Legal Realism, Common Courtesy, and Hypocrisy,” 76.

7. Frank, “Law and the Modern Mind” 

8. Shaffer, “The New Legal Realist Approach to International Law”

9. Guillaume, “The Use of Precedent by International Judges and Arbitrators,”

BIBLIOGRAPHY:

Bybee, Keith J. “Legal Realism, Common Courtesy, and Hypocrisy.” Law, Culture, and the Humanities 1 (2005). 

Frank, Jerome. Law & the Modern Mind. Abingdon: Routledge, 2017. 

Guillaume, Gilbert. “The Use of Precedent by International Judges and Arbitrators.” Journal of International Dispute Settlement, vol. 2, no. 1, 2011, pp. 5–23., doi:10.1093/jnlids/idq025.

Harris, David, and Sandesh Sivakumaran. Cases and Materials on International Law. London: Sweet & Maxwell, 2020. 

Hart, H. L. A. The Concept of Law. Oxford: Oxford Univ. Press, 2012. 

Llewellyn, Karl. “Some Realism about Realism: Responding to Dean Pound.” Harvard Law Review 44, no. 8 (June 1931). 

Shaffer, Gregory. “The New Legal Realist Approach to International Law.” Leiden Journal of International Law 28, no. 2 (June 2015). 

“Statute of the International Court of Justice.” Statute of the Court | International Court of Justice. Accessed November 19, 2020. http://www.icj-cij.org/en/statute.

The Unconstitutional Implications of the Two-Senator-Per-State Rule

By: Ashley Ravid

Edited by: Dheven Unni and Maddy Bennett

It is to the detriment of our democratic future as a nation that many citizens and politicians alike consider it blasphemous to discuss altering our governmental systems from the original format laid out in the Constitution. Though the United States’ system of checks and balances remains vital to our republican system of government, the role of the Senate in unequally representing our citizens in myriad ways is antithetical to the spirit of the Constitution and to voting rights in the United States. Reapportioning the Senate is not only the Constitutional path forward, but also represents the nation’s best chance to adapt for modern times and conceptions of law, order, rights, and justice. 

1.Unequal Representation in the Senate 

A.Statistical Republican Skew 

One highly salient issue facing the American public’s relationship with the legislative branch is a pattern of Democrats claiming fewer House and Senate seats in elections than the proportion of votes they received would suggest. Redistricting post-2010 has only increased the severity of this statistical disconnect. This skew is so impactful on election results that researchers and political analysts estimate how many percentage points Democrats will need to beat Republicans to take control of either the House or Senate. In 2018, researchers predicted Democrats would need to win by 4 to 7 points to take a majority of seats in the House.[1] Though this “seats bonus” has favored Republicans in the last four elections, the Brookings Institution (a public policy nonprofit organization) notes that whichever party wins the congressional majority benefits from this boost, netting an average “seats bonus” of 5.6 percentage points.[2] Slate explains the pervasiveness of this partisan skew and how impactful it has become on the legislative system as a whole: “Republicans held over 55 percent of the seats in the House after 2016’s elections despite winning only 49.9 percent of the popular vote. This mismatch is nothing new. It’s a function of not only partisan redistricting processes, but also the fact that Democratic and Republican voters wouldn’t be evenly distributed even absent gerrymandering.”[1] This widening disproportionality between votes cast for a party and the proportion of representatives from that party who actually take office poses judicial, legal, ethical, and Constitutional questions about why nothing has changed to combat voting skew despite widespread acknowledgement of its existence.  

2. Wesberry v. Sanders 

Constitutionally, every citizen’s vote should carry equal weight, a precedent initially set by the Supreme Court’s decision in Wesberry v. Sanders, 376 U.S. 1 (1964). In that case, the Court ruled not only that congressional districting and voting systems fall under legislative branch justiciability, but also established that the Fourteenth Amendment of the Constitution guarantees citizens the right to have their vote matter just as much as another. The Court held that “construed in its historical context, the command of Art. I, § 2 that Representatives be chosen ‘by the People of the several States’ means that, as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's.”[3] Though in this instance the votes being discussed are those for the House, the same principle should logically apply to votes cast in elections for the Senate; both Article I and the Fourteenth Amendment support this conclusion. The purpose of the government is to serve and represent its people and their best interests. If any branch of the government fails to uphold these basic duties, action should be taken to rectify this divergence. In this case, reasonably equitable districting must be guaranteed so that the proportion of Senate seats won by each party in elections remains proportional to the share of votes received. Furthermore, the United States has expanded from 13 to 50 states in the centuries since the Constitution was written, causing a 284.6% increase in Senators. This dramatic increase has widened inequality by granting states with smaller populations increasingly disproportionate power within the legislative branch.  

3.Unequal Weight of Citizens’ Votes 

A memo released by Data for Progress, a progressive policy think tank, compiles data and declaims the Senate as an “irredeemable institution.”[4] Though the use of such harsh language may seem excessive in a traditionally patriotic sense, the data presented does suggest deep-rooted issues inherent to the current structure of the Senate. Smaller states are more reliant on federal funding than larger ones and tend to have smaller immigrant populations and larger white populations. A statistical analysis of the voting population based on data from the U.S. Census Bureau shows that the weight of a vote by a citizen in a larger state is drastically reduced compared to the vote of a citizen in a small state. Essentially, “This means that instead of one person in California counting as one person in the national total, one person in California would count as only one-fifth of a person. Each person in North Dakota counts as eight people, each person in New York as one-third of a person.”[5] Particularly concerning is that this skew of uneven vote weighting through Senate representation drastically favors white populations, particularly non-college educated whites.  

Though people of color and white populations do not necessarily have different voting preferences or political opinions, analysis shows that non-college-educated whites vote more frequently for conservative candidates and platforms—such as opposing gun control—than people of color do. In summary, “The Senate amplifies representation for whites at the expense of representation for people of color. The Senate overweights the votes of non college-educated whites to such a substantial degree that they become an effective majority of the voting-eligible population. In consequence, the Senate will discount the political preferences of people of color, and amplify the political preferences of whites.”[5] As the country’s population has diversified, the growth of nonwhite populations has not been distributed across the country evenly, as immigrant and nonwhite populations tend to reside in larger, more liberal-leaning states. The lowered statistical voting impact of mainly nonwhite voters will only be exacerbated by this inequality. Gabriel Yglesias describes the growth of this inequity over the centuries: in 1790, “the largest state...was about 12.6 times as big as the smallest state, and the ratio was even lower among free people. Today, the smallest state is Wyoming, and the state of Washington has about 12.6 times as many people...Illinois has 22 times Wyoming’s population. Texas is nearly 50 times as big (and growing fast). And California is a stunning 68 times as large.”[6] The Constitution is clear: each state will be represented by two Senators in order to guarantee fair representation of all states in Congress. The House is intended to compensate for this variation of populations by allotting representation to states based upon their citizenship. However, in a bicameral system where having support from both houses of Congress is almost always essential to passing key legislation, such an extreme deviation from equal representation has concerning implications for a country founded on the principle of “no taxation without representation.” 

4.Gaffney v. Cummings Threshold 

Gerrymandering remains a controversial and not-wholly-adjudicated issue for both state and federal governments, particularly in relation to the Fourteenth Amendment. Part of the reason is that it is difficult to draw perfectly equal districts within a state or county to ensure equal representation. Still, various courts across the country have enacted rulings to stipulate how much deviation is permissible in redistricting. Justice Brennan of the Supreme Court, in his dissent of the Court’s opinion in Gaffney v. Cummings, 412 U.S. 735 (1973) wrote that according to Court precedent, “deviations in excess of [10%] are apparently acceptable only on a showing of justification by the State.”[7] In the intervening years, Court interpretations of districting thresholds have typically followed this unofficial rule. A deviation of 68 times—the amount that California’s population is greater than Wyoming’s, despite their equal representation in the Senate—appears repugnant to the spirit of such a threshold. While it is important to note that this decision is intended to apply to states, the Court has established precedent to make similar decisions on the legislative branch, particularly the House (see Wesberry). Many cases cited in this article are intended to apply to states or the House, specifically exempting the Senate because it was written into the Constitution to fairly represent states rather than people. Yet what is a state made of if not its people? What is the United States made of if not its people, regardless of what specific state they reside in? It seems inadvisable and impractical to write off enacting similar thresholds for equal representation in the Senate simply because of tradition, even if that tradition originates with the Constitution.  

5.One Person, One Vote 

A. Reynolds v. Sims 

Further evidence for the necessity of Senate reform and the authority to do so is found in the case Reynolds v. Sims, 377 U.S. 533 (1964). In their ruling on the reapportionment of Alabama State House and Senate districts, the Supreme Court held that “the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a [substantially equal] population basis.”[8] When Alabama attempted to justify its system through comparison to the composition of the federal Senate, the Court replied that “the historical circumstances which gave rise to the congressional system of representation, arising out of compromise among sovereign States, are unique and without relevance to the allocation of seats in state legislatures.”[9] However, in the very same ruling, the Court held that “Legislators represent people, not areas,” and “revision [of districts] less frequent than decennial would be constitutionally suspect.”[10] It has been over 230 years since the last time our federal Senate districts were ‘revised.’ The two-per-state rule has not yet been altered from the original framework of the Constitution—significantly longer than the Court’s suggestion of reapportionment every 10 years—and should therefore be considered “constitutionally suspect.” 

Despite stating that the federal Senate is historically exempt from these principles, the Reynolds holding also stipulates that “The right of suffrage is denied by debasement or dilution of a citizen's vote in a state or federal election” and that “Considerations of history, economic or other group interests, or area alone do not justify deviations from the equal population principle.”[11] There are clear contradictions here as the Court says that the Senate’s Constitutional history render it immune from changes even though statistics clearly show that it dilutes and thereby “[denies] the right of suffrage,” and also states that “[historical] considerations” should not be a barrier to equal representation among legislative districts. With this logical fallacy acknowledged, the next consideration is whether anything should be done to address the issue. Fortunately, the Reynolds ruling answers this question as well: “Courts should attempt to accommodate the relief ordered to the apportionment provisions of state constitutions insofar as is possible.” [12] A reasonable interpretation of this decision is that the Senate in its current format is incompatible with the spirit of the Constitution and its guarantee of voting rights—and it is the duty of the Supreme Court, as well as the executive and legislative branches, to correct this offense. The right of the people to have their votes matter equally is more important than the weight of a state’s influence on the federal government and the country as a whole.  

6. The Great Compromise 

To some, the idea of questioning the framework of the government as laid out in the Constitution is seditious. At some point, however, it becomes illogical to not question whether a system of government laid out hundreds of years ago—years before the modern semaphore telegraph or steam locomotive had even been invented—is the ideal structure to represent and serve our populace in the modern age. Even at the time of writing, some of the Framers of the Constitution expressed concerns about the makeup of the Senate, which had been created to appease the interests of small states as part of the Great Compromise of 1787. Alexander Hamilton, one of the original framers of the Constitution, wrote in Federalist Paper No. 22: “Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York… Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail… this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense.” James Madison and George Washington shared similar reservations, but considered adopting the unequal distribution of Senators a necessary evil in order to gain the support needed to pass the Constitution as a whole.[13] As a society, the United States tends to regard the Framers with near-deified status; and as the decades and centuries have passed, we have begun to consider the original Constitution to be a sort of infallible document, establishing the ideal and only format of government that the United States should ever have. Even as they wrote the original Constitution, however, its authors knew that the text was not without flaws or necessary compromises; it is not an illogical leap to suppose that they assumed future generations would take up the mantle of redressing issues with the document as such problems arose. The Senate has never not been a problem—it is an inherent challenge to not only the “one person, one vote” precedent established in Reynolds, but also to the definition of suffrage as a whole. A patriot should want the United States to thrive both now and in the future; if one of the best ways to ensure this is to revise the makeup of the Senate, refusing to do so seems more un-American than clinging to the two-Senator-per-state rule.  

7. Conclusion  

Depending on to which philosophy of legal interpretation an individual subscribes, their reaction to the idea of changing the makeup of Senate representative apportionment will vary—as will their opinions of how such changes can or should be enacted if it proves possible. As the first step is successfully advocating for some form of change to the Senate as necessary, the exact mechanics of how such a structural overhaul can be arranged are not immediately pressing. Scholars who have studied the subject, however, have come up with a variety of possible solutions. One such possibility published by Professor Eric W. Orts of the Wharton School at the University of Pennsylvania, suggests that the Senate be made up of 110 members; each state will retain at least one Senator, while the remainder is allocated to different states based on population. Orts also provides theoretical mechanics for how such reform could be achieved.[14] Attorney and writer Simon Barnicle suggests that adding new states to the country (namely the District of Columbia and possibly Puerto Rico, though the latter’s possible statehood presents other practical and moral challenges) will help balance the minority rule that sees partisan vote skews worsening as more Americans move to a handful of states which are already underrepresented in the Senate.[15] Regardless of which, if any, solution sounds most appealing, some degree of change to our government is inevitable. This is not the same United States that was founded over two hundred years ago, and it is long past time that we acknowledged this as a nation. The U.S.’s rigid conformity to the exact form of governance laid out in the Constitution, a document hundreds of years old, undermines the very premise of our republican government and the democratic voting process as a whole. Our best path forward is to take prescient action to get ahead of worsening voting skew rather than attempting to retroactively redress the challenges it poses to the sanctity of voting rights for all United States citizens. 

NOTES:

1. Nwanevu, Osita. “How Much Do Democrats Need to Win By?” Slate Magazine. Slate, March 27, 2018. https://slate.com/news-and-politics/2018/03/how-much-do-democrats-need-to-win-by.html. 

2. Reynolds, Molly E. “Republicans in Congress Got a ‘Seats Bonus’ This Election (Again).” Brookings. Brookings, January 27, 2017. https://www.brookings.edu/blog/fixgov/2016/11/22/gop-seats-bonus-in-congress/. 

3. Wesberry, 376 U.S. at 18 

4. McAuliffe, Colin. “Memo: The Senate Is an Irredeemable Institution.” Data For Progress. Data For Progress, December 17, 2019. https://www.dataforprogress.org/memos/the-senate-is-an-irredeemable-institution. 

5. Ibid., 5 

6. Yglesias, Matthew. “American Democracy's Senate Problem, Explained.” Vox. Vox, December 17, 2019. https://www.vox.com/policy-and-politics/2019/12/17/21011079/senate-bias-2020-data-for-progress. 

7. Gaffney, 412 U.S. at 772, 777, 778  

8. Reynolds, 377 U.S. at 568 

9. Ibid., 571-577 

10. Ibid., 562 

11. Ibid., 554-555 

12. Ibid., 5784 

13. Hertzberg, Hendrik. “Alexander Hamilton Speaks Out (III): Two Senators Per State, Regardless of Population?” The New Yorker. The New Yorker, June 18, 2017. https://www.newyorker.com/news/hendrik-hertzberg/alexander-hamilton-speaks-out-iii-two-senators-per-state-regardless-of-population. 

14. Orts, Eric W. “The Path to Give California 12 Senators, and Vermont Just One.” The Atlantic. Atlantic Media Company, January 4, 2019. https://www.theatlantic.com/ideas/archive/2019/01/heres-how-fix-senate/579172/. 

15. Barnicle, Simon. “The 53-State Solution.” The Atlantic. Atlantic Media Company, February 11, 2020. https://www.theatlantic.com/ideas/archive/2020/02/case-new-states/606148/. 

BIBLIOGRAPHY:

Chong, Jane. “This Is Not the Senate the Framers Imagined.” The Atlantic. Atlantic Media Company, February 11, 2020. https://www.theatlantic.com/ideas/archive/2020/01/not-senate-framers-imagined/605017/. 

Barnicle, Simon. “The 53-State Solution.” The Atlantic. Atlantic Media Company, February 11, 2020. https://www.theatlantic.com/ideas/archive/2020/02/case-new-states/606148/. 

Gaffney v. Cummings, 412 U.S. 735 (1973)

Hertzberg, Hendrik. “Alexander Hamilton Speaks Out (III): Two Senators Per State, Regardless of Population?” The New Yorker. The New Yorker, June 18, 2017. https://www.newyorker.com/news/hendrik-hertzberg/alexander-hamilton-speaks-out-iii-two-senators-per-state-regardless-of-population. 

McAuliffe, Colin. “Memo: The Senate Is an Irredeemable Institution.” Data For Progress. Data For Progress, December 17, 2019. https://www.dataforprogress.org/memos/the-senate-is-an-irredeemable-institution. 

Noel, Hans. “The Senate Represents States, Not People. That's the Problem.” Vox. Vox, October 13, 2018. https://www.vox.com/2018/10/13/17971340/the-senate-represents-states-not-people-constitution-kavanaugh-supreme-court. 

Nwanevu, Osita. “How Much Do Democrats Need to Win By?” Slate Magazine. Slate, March 27, 2018. https://slate.com/news-and-politics/2018/03/how-much-do-democrats-need-to-win-by.html. 

Orts, Eric W. “The Path to Give California 12 Senators, and Vermont Just One.” The Atlantic. Atlantic Media Company, January 4, 2019. https://www.theatlantic.com/ideas/archive/2019/01/heres-how-fix-senate/579172/. 

Reynolds v. Sims, 377 U.S. 533 (1964)

Reynolds, Molly E. “Republicans in Congress Got a ‘Seats Bonus’ This Election (Again).” Brookings. Brookings, January 27, 2017. https://www.brookings.edu/blog/fixgov/2016/11/22/gop-seats-bonus-in-congress/. 

Yglesias, Matthew. “American Democracy's Senate Problem, Explained.” Vox. Vox, December 17, 2019. https://www.vox.com/policy-and-politics/2019/12/17/21011079/senate-bias-2020-data-for-progress. 

Wesberry v. Sanders, 376 U.S. 1 (1964)

United States v Big Tech: A Rare Antitrust Phenomenon

By: Patrick Ales

Edited By: Joni Rosenberg and Tess Ballis

Over the last twenty years, the United States has seen a significant shift in the balance of power within the realm of “big” business. This very simple term has been used to describe companies or sectors that have exerted large amounts of influence over the general well-being of the economy, as well as essentially dictated corporate economic policy. The newest sector to have a hegemony on the S&P 500 is commonly referred to as “tech,” encompassing most large corporations that are involved in software development or general technological advancement. At the head of this surging sector stand some of the most valuable companies in the world by market cap, including Google, Facebook, Apple, and Microsoft. These companies have also been allowed to grow with virtually no oversight or regulatory policy, as opposed to other industries that underwent the same drastic growth in a short period of time, like radio or television [1]. One of the few actions taken against Big Tech companies in the twenty-first century has been the Sherman Antitrust suit levied against Microsoft in 2001 [2], and the newest suit against Google that alleges a monopoly over search engine advertising [3]. The rarity of such regulatory policies in a period of immense growth within the sector certainly had much to do with a lack of precedent on how to regulate the internet, a space in which Big Tech has made most of their market inroads. There has been a recent proclivity to use the Sherman Antitrust Act to lessen the market impact of some of these corporations, evidenced by the European Union’s first ever antitrust suit against Google in 2019 [4], and the United States’ parallel action [5]. Despite the coordinated efforts to take issue with Google’s dominance, there still remain many concerns regarding the definition of a true “tech” market and how antitrust can be efficiently employed against Big Tech.

An ever-evolving internet inherently means that the companies that contribute to this advancement are also changing rapidly. Facebook, for example, has faced litigation regarding issues of privacy and data sharing, but is yet to face an antitrust suit, even after their acquisition of Instagram in 2012. The Clayton Act provides the government with the ability to retroactively undo the merger, but only if there is an unreasonable disruption to competition in the market [6]. There are ample concerns regarding how to treat the market in which Facebook operates, and thus, a monopoly with no concrete market is at the face of the American tech and social media sector [7]. The dynamic changes that Facebook has undergone in their market dominance, from once being more reliant on the potential number of people in their network to now being defined by their advertisement, are largely emblematic of the shift in the way innovation is treated in the economy. The one constant in the regulation of Big Tech across the last two decades is that when the Sherman Act is involved, there seems to be continuity in how it is applied to internet giants such as Microsoft and Google, with a focus on exclusionary practices and Section 2 [8].  

The two most recent cases of Sherman Act litigation against Big Tech may be eighteen years apart, but there are stark similarities as to the market in question. The space of search engine advertising and search queues comprises the bulk of Google’s revenue stream, and represents their highest relative market dominance [9]. In the same vein, Microsoft once had a commanding portion of the web browser market, as Internet Explorer was the de facto exclusive browser on all Windows PCs, which at the time of United States v Microsoft Corp (2001), was the leading distributor of operating systems [10]. It seems to be the case that the Federal Trade Commission (FTC) and regulators take the most active stance on how access to the internet is purveyed and the ability of any individual company to regulate that access. The 2001 suit against Microsoft found that they were in violation of Section 2 of the Sherman Act, as the FTC deemed their actions in preventing other web browsers from being as easily compatible with Windows as exclusionary [11]. Eighteen years later, Google is also being sued by the U.S. government for exclusionary practices in regard to their dominance over the access of search engines to consumers [12]. This includes a perceived barrier to entry for many competitors in the search engine market, as well as concerts over the power that Google holds over companies that are reliant on advertising through search engines [13]. Google CEO Larry Page has previously said that competitors are only one click away from establishing themselves within the market, but lawmakers have become more skeptical on the true openness of the internet under the thumb of many tech conglomerates [14]. The comparisons between the two most recent applications of the Sherman Act pertaining to the companies usually grouped in Big Tech paint a picture that the use of the law and its related policies are not going to actively stop the mergers of many tech companies [15], as market sizes and the relative dominance of companies in these dynamic markets can change much faster than traditional large cap markets. Instead, the government has relied more heavily on Section 2 of the Sherman Act and its ban on exclusionary and anticompetitive practices. Going forward, this newest challenge to the “sovereignty” of large tech conglomerates could start a new era of government oversight on a once unregulated sector. This could also just be a blip on the radar for companies like Google that are at the forefront of innovation and are always expanding, in the same way that Big Tech saw no further challenges after the case against Microsoft twenty years ago. There are many considerations to be taken when looking at action against Big Tech, most notably the relative health of the stock market when the future of its fastest growing and most influential sector is uncertain. 

notes:

1. Brannon, “Regulating Big Tech: Legal Implications.

2. United States v. Microsoft Corporation

3. “Justice Department Sues Monopolist Google For Violating Antitrust Laws.”

4. “Antitrust: Commission Fines Google €1.49 Billion for Abusive Practices in Online Advertising.”

5. Romano. “Don't Ask Whether Facebook Can Be Regulated. Ask Which Facebook to Regulate.”

6. 15 U.S.C §19

7. Brannon,“Regulating Big Tech: Legal Implications.”

8. 15 U.S.C § 2

9.  Hazan,“Stop Being Evil: A Proposal for Unbiased Google Search.”

10. Cohen, Amanda. “Surveying the Microsoft Antitrust Universe.”

11. Brannon,“Regulating Big Tech: Legal Implications.”

12. “Justice Department Sues Monopolist Google For Violating Antitrust Laws.”

13. “Justice Department Sues Monopolist Google For Violating Antitrust Laws.”

14. Brannon,“Regulating Big Tech: Legal Implications.”

15. Lambert,“The Limits of Antitrust in the 21st Century.”

Bibliography:

“Antitrust: Commission Fines Google €1.49 Billion for Abusive Practices in Online Advertising.” European Commission, European Union, 2019, ec.europa.eu/commission/presscorner/detail/en/IP_19_1770. 

Brannon, Valerie C. “Regulating Big Tech: Legal Implications.” Federation of American Scientists , 2019, fas.org/sgp/crs/misc/LSB10309.pdf. 

Cohen, Amanda. “Surveying the Microsoft Antitrust Universe.” Berkeley Technology Law Journal, vol. 19, no. 1, 2004, pp. 333–364. JSTOR, www.jstor.org/stable/24117552. Accessed 9 Nov. 2020.20.

Hazan, Joshua G. “Stop Being Evil: A Proposal for Unbiased Google Search.” Michigan Law Review, vol. 111, no. 5, 2013, pp. 789–820. JSTOR, www.jstor.org/stable/23812653. Accessed 9 Nov. 2020.

“Justice Department Sues Monopolist Google For Violating Antitrust Laws.” The United States Department of Justice, 2020, www.justice.gov/opa/pr/justice-department-sues-monopolist-google-violating-antitrust-laws. 

Lambert, Thomas Andrew. “The Limits of Antitrust in the 21st Century.” SSRN Electronic Journal, 2020, doi:10.2139/ssrn.3533549. 

Romano, Aja. “Don't Ask Whether Facebook Can Be Regulated. Ask Which Facebook to Regulate.” Vox, Vox, 12 Apr. 2018, www.vox.com/technology/2018/4/12/17224096/regulating-facebook-problems. 

United States, Congress, Antitrust Division Manual. Vol. 5, U.S. Department of Justice, 2012. Antitrust Division Congress. 

United States Court of Appeals for the District of Columbia Circuit, United States v. Microsoft Corporation. Federal Reporter, Third Series, vol. 253