Political Science Case Study

Its 5 questions that need to be answered. Hypothetical questions and just needs to refer to a case in law history. The questions are long but the answers doesn’t have to be very long. Alternative History: Assume it is February 2017 and Hillary Clinton (Democrat) is the current President. Also assume that the House and Senate are heavily filled with Democrats such that both houses are in said party’s control. In this political environment, one of Clinton’s first acts in office was to nominate a new Supreme Court justice to fill the still vacant seat on the court. For her nomination, she unexpectedly choose former President Obama to fill the seat. Given the Democrat’s control of the Senate, Obama’s appointment was quickly confirmed and he was sworn into office shortly thereafter. Nearly a year passes and the media is ablaze; a scandal is uncovered unlike any other in American history. After President Clinton’s e-mail had been hacked (yet again) in late 2017 by an unknown entity it was shown that while she was a candidate for President she had promised then President Obama a Supreme Court nomination in exchange for his assuring her that no criminal charges against her would be filed for her use of a private server to store confidential government documents while she was the Secretary of State in his administration. Even though he (Obama) believed such charges were warranted, he clearly agreed to order his Attorney General to forgo charges, regardless of what the FBI recommended. Furthermore, it was shown that then President Obama actively suppressed evidence from the FBI to make it less likely they would recommend charges be brought. Assume that if this is all true then these acts by both Clinton and Obama would constitute felonies punishable by no less than 10 years in federal prison. The midterm elections that follow soon after this scandal broke are a disaster for Democrats who, despite the evidence, did not move to impeach either President Clinton or Justice Obama. As such, the new House of Representatives after the election is now heavily dominated by the Republican Party while the Senate, thanks to staggered elections, remains ever so slightly in Democratic hands thanks only to the VP’s tiebreaking vote (meaning the Senate is tied 50-50 but the Democratic VP casts all tiebreaking votes). On the first day of their opening session the Republican majority in the House votes overwhelmingly to impeach both Supreme Court Justice Obama and President Clinton, thereby moving the matter to the Senate to try both. The Senate then voted by a 51-50 vote to refer the matter to a 5 member Senate sub-committee within the Judiciary Committee (assume 3 of the 5 members of the sub-committee are democrats being that Democrats control the chamber –thanks the tiebreaking vote by the VP – they have majorities on all committees and sub-committees). The sub-committee is then tasked to investigate and try the matter entirely within the sub-committee, taking no input from the rest of the Senate. Their vote on conviction will then determine whether Clinton and/or Obama are removed from office or not. After one week passes the sub-committee votes and decided not to convict President Clinton or Justice Obama. Infuriated, Senate Republicans file suit demanding that the full Senate be given the right to vote in the impeachment trial of Obama and Clinton. The matter is eventually brought before the Supreme Court, though not before the 2020 election that saw Clinton retire early rather than seek a second term. However, as her last official act in Office, Clinton issued a full and unconditional pardon to both herself and Justice Obama for “any acts that were or may have been criminal over the past 40 years”. Will the Court even issue a ruling on this case? Specifically, answer whether you think that they will dismiss all of it, none of it, or part of it. Next, regardless of your answer above, assume the court decided to hear the case. Would the Republican Senators prevail? Why/Why not? Lastly, does the pardon have any effect on this case? Why/Why not? If yes, how so. If not, why not. 2. Slightly less alternative history: Imagine the current President of the US is still Donald Trump but that he won after a swell of support following a major terrorist attack that occurred just a day before the election. The attack was coordinated to occur simultaneously in 15 major cities and the estimated body count was upwards of 10,000 American civilians, making it over 3 times as deadly as the 9/11 attacks. Shortly after taking the oath of office, President Trump addressed Congress over the terrorist attack. In his address, he asked for an authorization to use military force against the Islamic terrorists responsible for the attack. A day later, the Congress passed, with an extremely high level of support, such an authorization. In the authorization it was stated that “The President may take such action as needed to answer the threat of Islamic terrorism both domestically and abroad”. Three weeks go by and then President Trump issued the following executive order: “I hereby direct my Secretary of Homeland Security to detain all persons of a Muslim faith on US soil, whether they are US citizens or not, until such time as it may be determined safe to allow their reentry into society.” This ruling is immediately challenged by way of a writ of habeas corpus from a Muslim-American who was forced into a detention camp created by the Department of Homeland Security. However, just before the Supreme Court was to issue its decision to hear the case, Congress passed and the President signed into law a restriction on the court’s authority to hear any writ of habeas corpus cases from individuals held in Trump’s determinant camps. Will the court issue a decision in this case? Why/Why not? Assume, regardless of your answer above, that the court issued a decision on the case. How do you think the court would rule here? 3Slightly less alternative history: Imagine the President of the US is Donald Trump and that he won the election after a swell of support followings a major terrorist attack just before the election. Shortly after taking the oath of office, President Trump addresses Congress, asking for an authorization to use military force against the Islamic terrorists responsible. A day later, the Congress passes (with an extremely high level of support) such an authorization that includes a provision allowing the President to take “any action necessary to fight the terrorist threat, in both a domestic and foreign context”. A week after the authorization passes, a contract dispute between management and workers at Lockheed Martin (a major military weapons manufacturing company) leads to a complete work stoppage, thereby disrupting their production of materials necessary to craft and even operate already built weaponized drones. In response, President Trump immediately issued the following executive order: “I hereby order that Lockheed Martin is now under control of the United States government and will immediately restart production of vital weapons systems for the US military” Assume the court decided to hear this case. How would the court rule in this case? 4. Alternative Future: For purposes of this question assume that it is November 2036. Democrats control the U.S. Supreme Court (7 Democrats and 2 Republicans) but a Republican, Howard Lark, is now President of the United States; and Republicans control the House of Representatives. The Democratic party also had controlled the U.S. Senate. But, in the election of 2036 the party lost several seats, such that—beginning in January 2037 when the new Senators were to be sworn into office—the Senate would be controlled by Democrats, though by a slim margin (49 Republicans and 51 Democrats). During his 2036 campaign to become a U.S. Senator, the famous movie star Clint Terminator (a Democrat from California) was under constant attack from the major newspapers in California. Among the most serious charges reported in the press was that Terminator had sexually harassed or even assaulted as many as 15 women between the years 2030 and 2035. Despite these and other allegations of improper (perhaps even illegal) behavior, Terminator won the election by a wide margin. But his troubles were not over. The Democratic Attorney General of California had begun an investigation into Terminator’s activities to determine whether he had violated any state laws. And the lame-duck Republican Senate saw the investigation as a way to regain control of the Senate: if it could get rid of Terminator and elect a Republican in his place, the Senate would be divided 50-50, thereby enabling Lark’s Vice President to break any ties. One week after the election (on November 15, 2036), the Senate, pursuant to Article I, §5 of the U.S. Constitution,[1] formed a committee specifically to investigate the accusations of sexual harassment against Terminator. The charge to this Committee, the Select Committee on Ethics, read as follows: “The Senate of the United States will not tolerate misconduct on the part of its members or potential members. The Senate charges the Select Committee on Ethics with the task of determining whether Clint Terminator engaged in illegal or questionable activities. To this end, the Committee may gather any information and call upon any witnesses it deems relevant.” The first witness called to testify before the Committee, Terminator’s agent, revealed an interesting piece of information: since 2025, Terminator kept an extensive journal on his computer of all his activities. Upon hearing this, the Committee asked Terminator to turn over a computer disk containing the content of his journal. It also called Terminator to testify before it. Terminator agreed to allow the congressional committee to review everything in his journal except accounts of “personal, private family matters.” Once the Committee consented to this request, Terminator turned over the disk. But, much to the Committee’s dismay, entries for the years 2031 to 2033 were not on the disk. When the Committee asked him about these years, Terminator said he had accidentally erased them from his hard drive. Knowing that a computer expert could recover the information, the Committee requested Terminator to turn over his computer. Terminator refused, claiming that he would not have an opportunity to excise personal entries. But the Committee didn’t buy his argument: instead, it voted unanimously to force him to turn over the computer. Terminator, when he appeared before the Committee, again refused this request. When the chair of the Committee asked him why, Terminator refused to answer. He also would not answer the chair’s next questions: “With how many women have you had sexual relations over the last five years?” “Did you discuss your sexual relations with anyone? A friend, a family member?” In fact, immediately after the chair asked these questions, Terminator stated that he would not answer any of the committee’s questions. The committee cited Terminator for contempt, and he challenged its orders in a federal court. He alleged that (1) the committee could not conduct investigations into this particular subject, 2) the committee’s purpose was too vague, and 3) the committee’s questions lacked pertinence. Suppose you were the judge hearing this case. Based on U.S. Supreme Court precedent, how would you rule on each of these three claims and why? ________________________________________ [1] The relevant clauses of Article I, §5 state: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members. . . Each House may. . . punish members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” 5. While Terminator’s case against the Senate Committee was pending in federal court, the Senate decided to take action against Terminator: In December 2036, it voted to exclude him from the Senate (61 Senators voted for exclusion) and directed the Senate majority leader (a Republican) to inform the Governor of California that the seat was vacant. The Governor of California, Dreg Mavis (another Republican), not only was quick to call a new election but he also decided to run in it—as the Republican candidate to replace Terminator. As it turned out, and much to the delight of the Republican party, Mavis won the election. He was sworn in as a member of the U.S. Senate in January 2037. Livid about this turn of events, Terminator brought another suit against the Senate, claiming that it did not have the power to deny him a seat since he met all the qualifications for office: he was 30, had been a U.S. citizen for more than nine years, and so on. Believing that Terminator might have a plausible legal argument and knowing that the Supreme Court of the United States was controlled by Democrats, Republicans in the Senate decided to take yet another step: they removed the Supreme Court’s authority to hear cases centering on the power of Congress to refuse to seat members. Both Houses quickly passed the legislation and the President signed it. This step, however, did not deter Terminator. Not only did he proceed with his challenge to the Senate’s authority to exclude him; he also added an additional claim: that Congress cannot take away the Court’s jurisdiction to hear this class of cases. Suppose you are a justice on the Supreme Court. Would you move to decide this case on its merits (that is, would you determine whether Congress could exclude Terminator) or would you dismiss it on the grounds that the Court lacked jurisdiction to decide it and/or that the dispute itself was nonjusticiable? Furthermore, assuming you and the majority of the court found the issue to be justiciable (regardless of your ruling on the issue in the above question) how then would you vote on the matter of Terminator’s failure to be seated in the Senate?

Bill Carlson

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