Separation of Powers: Scope of Executive Authority

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Separation of PowersScope of Executive
Authority

• Part 1

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Problem for Case Studies

• If the United States wants to remain a world
  leader in this global society, what ethical
  standards must we set for our political
  representatives?
• Context Executive authority to act independent
  of other branches.

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Bill of Rights-First 10 Amendments
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Fourth Amendment

• The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated, and no Warrants shall issue, but upon
  probable cause, supported by Oath or affirmation,
  and particularly describing the place to be
  searched, and the person or things to be seized.

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Requirements for a Search

• Probable cause and warrant from a neutral
  impartial magistrate judge.
• Applies to places where a person has a
  reasonable expectation of privacy
• N/A to email public places, Workplace where
  notice.
• Exclude evidence of illegal searches.
• Civil penalties

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Fifth Amendment

• Reads in part,
• No person shall be held to answer for a
  capital, or otherwise infamous crime, unless on
  presentment or indictment of a Grand Jury, except
  in cases arising in the landor in the Militia,
  when in actual service in time of War or public
  danger nor shall any person be subject for the
  same offense to be twice put in jeopardy of life
  or limb nor shall be compelled in any criminal
  case to be a witness against himself, nor be
  deprived of life, liberty, or property, without
  due process of law nor shall private property be
  taken for public use, without just compensation.

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Due Process Requirements

• Taken into custody Miranda Rights 1)remain
  silent 2) statements made can be used against
  you 3) right to counsel, 4) if cant afford,
  right to appointed.
• Presented before a court for statement of
  charges, right to trial, right to counsel, right
  to confront witnesses.
• Failure gives rise to Writ of Habeas Corpus or
  charges dismissed for unlawful detention.

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Fourteenth Amendment

• Extends Bill of Rights to state action
• All persons born or naturalized are US
  citizens and citizens of the state where they
  reside. No state shall make or enforce any law
  which shall abridge the privileges or immunities
  of citizens', or deprive any person of life,
  liberty, or property, without due process of law
  nor deny to any person within its jurisdiction
  the equal protection of the laws.

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Executive Power

• Defined by Art II U.S. Constitution
• Independent Powers Commander in Chief-Reporting
  by executive Departments Pardons
• Concurrent Powers Subject to congressional
  authority to appoint public officials and
  inferior officers
• Delegated Powers As authorized by Congress

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Domestic vs Foreign Policy

• Domestic Policy
• Executive Authority more restricted subject to
  checks balances.
• Limited by Constitution Congress.
• Presumptive Judicial review

• Foreign Policy
• Executive Authority more broadly construed
  greater deference
• Limited judicial review arguably more
  independent authority.

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Broad Interpretation of Executive Power
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Branch System-Check Balance

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Abuse of Executive Authority?

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Abuse of Executive Authority?

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Abuse of Executive Authority?
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Remedies for Abuse of Executive Authority

• Legal Remedies
• Judicial Review of decisions
• Congressional action to restrict
• Impeachment
• Elect someone else
• Change in party representation
• Criminal actions where violation of law
• Censure Sanctions

• Practical Effect
• Remedial vs. preventive
• Burden on victims or special interests to
  challenge
• Public opinion makes it clear lack of tolerance
  and
• Protracted legal process for legal remedies gives
  Gov. time to achieve goal i.e., detention,
  intelligence, war.

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Standards for Ethical Conduct

• What requirements of a branch system of checks
  balances must be upheld?

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Standards for Ethical Conduct

• What requirements of a branch system of checks
  balances must be upheld?
• Preserve an independent judicial branch.
• Preserve two-party political system in
  government.
• Ensure a persons vote is counted.

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Hon. John Houston

• U.S. Dist. Court for Southern District (Bush
  appointee 03)
• Former U.S. Magistrate Judge, S.D.
• Retired Lieutenant Colonel in Army
• Federal Prosecutor
• Chief, Asset Forfeiture Division
• Legal Instructor, Dept. of Justice

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Judicial Independence Discretion

• 1/22/07 SCt. strikes down CA sentencing law that
  gave judges discretion to increase sentences. Ct.
  said judge has no discretion. Jury must find the
  facts beyond a reasonable doubt, to justify
  stiffer sentence.
• CA law tell judges to sentence inmates to middle
  of 3 factors, unless factors exist that justify
  shorter or longer prison term.
• State has to figure out how to effect by
  resentencing thousands of inmates.

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Scope of Decision

• During 2005, just under a 250K felony
  convictions in the state in 2005.
• Roughly 15 percent of cases involving just one
  felony count result in sentences in which a
  judge, not a jury, finds an aggravating factor to
  justify the additional punishment.
• Not affect most felony convictions.

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Exercise of Constitutional Rights in Schools

• Part 2

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Executive State School
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Case Study First Amendment in Schools

• The School of X recently suspended  Outspoken,
   who wore a teeshirt that said,  "Be Ashamed, Our
  School Has Embraced That Which God Has Condemned"
  emblazoned on one side, and "Homosexuality Is a
  Sin. Romans 127" on the other.
• Outspoken wore the teeshirt to protest a
   school-sponsored Day of Silence devoted to
  opposing what the school officials deemed
  intolerance against gay, lesbian, and transgender
  teenagers.  
• Outspoken was told to remove the teeshirt and
  subsequently was suspended from school for
  violating state law and school policy condemning
  hate speech toward homosexuals. Outspoken sued
  and lost.
• The schools custodial authority  was upheld,
  meaning  that school officials act as custodial
  parents in the school setting and may exercise
  discretion in conducting searches and seizures,
  and censoring certain types of speech, including
  wearing certain colors, or making statements.   

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Task

• In response, the school authority has agreed to
  sponsor a program that will allow students to
  present alternative viewpoints.  
• You will represent a group of parents, school
  officials, and students in developing the
  guidelines for that program to ensure that
  persons can voice their viewpoint, but balance
  the schools need to maintain order, comply with
  state law, and protect the civil rights of all of
  its students.

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Problem

• Develop guidelines for the program to ensure
  that
• Permits persons to voice their viewpoint
• Maintain law and order
• Does not violate school policy (if applicable)
  and state law banning hate speech and
• Protects the civil rights of all of its students.
  

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What is Hate Speech?

• Hate speech is a controversial term for speech
  intended to degrade, intimidate, or incite
  violence or prejudicial action against a person
  or group of people based on their race, gender,
  age, ethnicity, national origin, religion, sexual
  orientation, gender identity, disability,
  language ability, moral or political views,
  socioeconomic class, occupation and appearance
  (such as height and weight).

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Facts

• Not all speech is protected by the US
  Constitution and/or state constitutions.
• Hate crime is fastest growing violent crime in
  California.
• Suicide is the 3rd leading cause of death for
  youths 15-24 years.
• Violence between students teachers in schools
  is on the rise.
• Many schools in D.C. have three police officers
  assigned to it Metal detectors and X-ray
  machines and eight Hawk One security guards
  with walkie-talkies roam in pairs.

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Facts

• School environments for many school officials
• A fight broke out in the school between two
  rival gangs. As a group of students rushed to
  watch the fight, Principal was trying to get the
  students to return to their classrooms. He
  grabbed one male student. Then another student,
  allegedly coming to the first student's defense,
  jumped on Principals back. Both were charged
  with misdemeanor simple assault.
• Student sued teacher and school for 500K.
• Unions fear it will dilute authority of principal
  to maintain control over students.

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Unknown Facts

• What facts dont you know that you need to know
  to solve the problem and Are they ascertainable?
• Are there any facts that you cant determine and
  how do you account for that in the solution? E.g.
  Create a process to study or research the issue.

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Unknown Facts-Quantifiable

• 1) People have different sensibilities of what is
  offensive. Where do you draw the line?
• 2) Is there a correlation between hate speech and
  increase in suicides?
• 3) Are the speech codes that prohibit hate speech
  effective to deter hate speech at Schools
  Universities?
• 4) Do religious schools have a problem with
  discrimination based on sexual orientation?
• 5) People react differently to threat of fear or
  violence. E.g."The more nonverbal you do, the
  less confrontational it will be."

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First Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  Government for a redress of grievances.

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Fourth Amendment in Schools

• Government officials cannot conduct unreasonable
  searches seizures.
• Government officials include civil criminal
  authorities at federal and state level.

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Warrantless Searches

• Justification has evolved from
• Individualized suspicion? Framers
• Reasonable suspicion that search will produce
  evidence of a crime and reasonable in scope of
  circumstances ?Terry v Ohio (1968)
• Balancing intrusion of rights vs. promoting
  legitimate government interest. Camara v
  Municipal Court
• Special needs? In certain circumstances, so long
  as governments basis is more than law
  enforcement. New Jersey v. TLO

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Special Needs Exception

• School Search context School officials assume a
  custodial role to safeguard students. Affirmative
  obligation.
• Given great deference by courts in determining if
  search is justified, either to address drugs or
  violence.

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California law

• In California, it is a crime, whether or not
  acting under color of law, to willfully injure,
  intimidate, interfere with, oppress, or threaten
  any other person, by force or threat of force, in
  the free exercise or enjoyment of any right or
  privilege secured to him or her by the
  Constitution or laws of the state, because of
  race, color, religion, ancestry, national origin,
  disability, gender, or sexual orientation, or
  because he or she perceives that the other person
  has one or more of those characteristics.

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Bottom Line

• Threat, fear, potential use of force. Acts
  Words ? fear intimidation
• Someone is a member of protected class. E.g.
  Race, color, religion, ancestry, national origin,
  disability, gender, or sexual orientation.
• Ability to exercise rights or privileges is
  infringed.

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What is Hate Speech?

• CA Law Hate speech is protected in public, but
  allows easy prosecution for alleged hate crimes,
  in verbal form as well in physical form.
  California law claims hate speech at the
  workplace does not constitute as "protected
  speech" and employers have the right to terminate
  or discharge those who committed hate speech on
  workplace grounds.

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Which entities would you exclude and Why?

• Pan Asian Awareness
• Sons of Militia
• Gangs of America
• Skinheads
• Heavy Acid Metal
• Gay Lesbian Pride
• Christian Rights

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Whats in a Name?

• Pan Asian Awareness promote understanding of Pan
  Asian culture issues.
• Sons of Militia Separatist group who proclaim
  independence from US.
• Gangs of America Ex-gang members promoting
  non-violence in inner cities.
• Skinheads Promote white supremacy.
• Heavy Acid Metal Promote the dark side.
• Gay Lesbian Pride Tolerance and equal rights
  for alternative lifestyles.
• Christian Rights Promote Christian values
  pro-life and anti-gay rights.
• BOTTOM LINE NEED TO KNOW MORE THAN THE NAME OF
  THE ORGANIZATION TO UNDERSTAND THEIR MESSAGE AND
  ITS POTENTIA IMPACT ON OTHERS.

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Devising a Solution

• GOAL Enable the process to effectively screen
  illegal, inappropriate or unwanted speech without
  bringing in your own predispositions.
• Step 1 What parts of the problem can be
  addressed through the structure or the process of
  selecting the participants.
• Structure and process can provide the framework
  for solving the problem.
• The structure needs to be inclusive and
  accessible to anyone within the defined
  community.
• The process needs to be simple easy to follow.
• Focus on registration, notification of
  acceptance, guidelines for participating etc.

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Devising a Solution

• Step 2 What are the biggest potential risks that
  need to be addressed.
• Avoidance of risks need to be built-in to the
  guidelines to disqualify illegal speech, acts
  etc.
• Guidelines need to be objective and applied
  without discrimination.
• The guidelines must be clear and easy to
  understand.

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Devising a Solution

• Step 3 Focus on structure and process.
• Can use any media, e.g. website, live, text,
  virtual.
• Process should include deadlines for
  notifications and receipt of information.
• Violations will disqualify participates.
• GOAL Enable the process to effectively screen
  illegal, inappropriate or unwanted speech without
  bringing in your own predispositions.

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Identify Three Possible Solutions

• Break into groups of 8. Divide the group into 3
  subgroups representing School, Students, Parents.
• 40 minutes to discuss develop a solution that
  describes the goal and purpose of the program
  who can qualify to participate any restrictions
  on qualifications penalty for violating rules.
• Solutions have to be quantifiable and attainable
  through rules and procedures (educating students
  on tolerance-NO create up to 5 themes on
  addressing stereotypes-Yes)
• Reconvene and discuss solutions. Will vote on
  most effective approach to solving the problem.

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Requirements of Program

• Develop program guidelines that describe
• The goal and purpose of the program
• Who can qualify to participate
• Any restrictions on qualifications
• Penalty for violating rules.