ConLaw Practice Exam

Since I'm supposed to be learning all about Constitutional Law for a final, um, in a week or so, I'm a little concerned that I don't have more complete responses to the Constitutional quandaries in the headlines. Therefore, as a public service to any law student studying for ConLaw, I present two real-life ConLaw practice exam questions:

Question One:
Health and Human Services (HHS), an agency under the executive branch, is refusing to release information to Congress (and the press, but that's a different story). What arguments can HHS make to support its claim that it doesn't have to comply with a Congressional request for information?

Question Two:
The U.S. is currently holding more than 600 foreign nationals at a military base in Cuba as suspected terrorists. The Supreme Court recently considered whether these prisoners should be accorded any due process rights, or if they should be denied those rights because the executive says they are "enemy combatants." What arguments can the executive make to support its position that U.S. courts have no jurisdiction over these prisoners, that these prisoners have no due process rights, and that the executive has complete discretion to decide these matters?

In a related question, Yaser Hamdi, one of the Guantanamo prisoners, turned out to be a U.S. citizen. Does that change the executive's power to detain Hamdi? Does the executive have unreviewable authority to deprive a U.S. citizen of his Constitutional rights? What arguments can the executive make in its favor? What are the flaws in those arguments? (A bit more on these questions here.)

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How would you answer these questions on a ConLaw final? They say practice exams are a great way to study. Feel free to practice in the comments! ;-) Click "more" for my very superficial/general thoughts on these questions.

General Thoughts on Question 1:
Can HHS withhold information from Congress under executive privilege? If so, does the executive's need for confidentiality outweigh the public's need to know this information? The answer to that probably depends on whether you'd like to see a second Bush term. If you'd like to see Bush reelected, then the public doesn't really need to know how duplicitous the executive was here. If you'd prefer to see Bush leave office, then the public's need to know this information is quite urgent.

This issue might also raise other, more difficult Constitutional law questions, such as: What happens if an executive agency lies to Congress about the cost of a program, then Congress appropriates money for that program, and then the executive says, oops, we need more money? I mean, I guess there are no Rule 11 sanctions to impose on the executive branch, but really, there should be. I'm guessing the only "sanctions" are accountability to the public—if people are angry enough about the executive's duplicity, they'll indicate their anger at the ballot box. Let's hope. Of course, if voters can't get the information, or if the information remains clouded in enough controversy that voters can convince themselves the executive may not, in fact, have lied here, then that ballot box accountability becomes a bit dubious, doesn't it?

General thoughts on question 2:
At a basic level the enemy combatant cases present questions about the extent of the executive's powers under the "commander in chief" (Art. II, § 2) and possibly "vestiture" (Art. II, § 1) clauses. But then, these seem to conflict a bit with the executive's responsibilities to "take care that the laws be faithfully executed" (Art. II, § 4). I mean, especially in Hamdi's case, since he's a U.S. citizen, we do have laws about due process that the executive has an obligation to uphold, right?

Posted 09:31 AM | Comments (4) | law general law school

TypeKey No Thanks

During a study break (yeah, that's it) I learned that MovableType is beta testing MT 3.0, which they say isn't a feature release, except for the one big feature, comment registration, a.k.a., TypeKey Authentication Services. The point of TypeKey is supposed to be that it will reduce spam in the comments of MT blogs, which seems like a neat idea, except that problem has already been pretty well solved with MT-Blacklist. So instead of solving problems for users, it seems like TypeKey is just going to create hassles and reduce the fun and spontaneity of blogs by forcing people to "register" and "login" if they want to comment on blogs that use TypeKey. How often have you thought about leaving a comment somewhere, but decided not to when faced with a registration or login screen? I generally don't fight through those things; it's usually not worth it. I mean, I enjoy leaving comments on blogs, and I certainly love to read the comments here at ai (they're really what make blogging worthwhile, to a large extent—more comments, please!), but part of the fun of blog comments is that they're quick and easy. Read a post, jot a thought, and move on. Registration and login systems add those extra steps, thereby raising the barrier for commenting.

On the plus side, this faq says you don't have to use TypeKey to use MT 3.0, and it sounds like they've built at least some of the functionality of MT-Blacklist right into MT itself. I hope they keep things that way for all future MT upgrades, as well. I also hope MT-Blacklist sticks around and someone continues to update it. I think it's a far better solution to the spam problem than TypeKey promises to be.

Posted 06:37 AM | Comments (5) | meta-blogging