American Graduate School in Paris

Additional Degree Option with American University in International Relations and Diplomacy/International Service

2017-09-06T12:44:12Z

Partner program with American University (Washington, DC) leading to two Master's degrees

In partnership with American University (AU) in Washington, D.C., the American Graduate School in Paris offers a dual program option allowing you to earn two US-accredited Master’s degrees over the course of three years:

A Master of Arts in International Relations and Diplomacy at ��˾��Ƶ in Paris, France
A Master of International Service in the International Studies Track (MIS-IST) at American University in Washington, DC, USA, (either on-campus or online)

Paris and Washington, D.C. being two of the world’s most important political capitals, both offering invaluable resources and networking opportunities, this dual program provides the ideal combination for the study of international affairs.

Organization of the partnership program

The first two years of this dual program are spent in Paris, at ��˾��Ƶ, completing the requirements for the M.A. in International Relations and Diplomacy.

The third year is spent completing the MIS-IST program at American University's School of International Service (SIS), either on campus, in Washington, D.C. or online.

Through the partnership between the two institutions, AU accepts up to 12 credits based on previous coursework at ��˾��Ƶ to count toward its 30-credit degree requirement, so that you only have to complete an additional 18 credits in residence at AU in order to obtain AU’s MIS degree after successfully completing ��˾��Ƶ’s degree.

Overview of the Master of International Service at AU

The International Studies track of the Master of International Service program offered through AU's School of International Service is designed specifically to complement your preexisting graduate studies at ��˾��Ƶ, while allowing you take full advantage of AU’s specific expertise in International Service.

The curriculum enables you to build your own concentration based on your professional goals. Possible concentrations include:

Foreign and Security Policy
Regional Studies
Peace and Conflict Resolution
International Negotiation
Communication
International Development

More information on the Master of International Service at American University

Career prospects

The knowledge and skills acquired during this two-fold program can be applied to a vast array of fields in local or national government, intergovernmental organizations, and non-governmental organizations (NGOs). They are also transferrable to international business and other professional areas involving interaction at the international level.

More information on the Master of International Service at American University

Who’s eligible and how to apply

Tuition and fees

Photo: © Jeff Watts, American University

Program Offering Overview

2016-01-15T12:22:15Z

For students interested in pursuing or advancing their career in international affairs, whether in government, international organizations, nonprofit, or international business, the American Graduate School in Paris offers programs specializing in international relations, diplomacy, international business, and related areas. Two types of programs are available: degree programs (at the graduate level only) and part-time non-degree programs, including certificate programs and study abroad in Paris.

All classes are taught at the American Graduate School in Paris, in the center of Paris, and open to students from all backgrounds and nationalities. The language of instruction is English, so you do not need any prior knowledge of French to apply - you then have the opportunity to learn French along with your curriculum.

The ��˾��Ƶ experience combines the interactive methods and internationally recognized excellence of US higher education with the rich resources of France and Europe, in an intimate and personalized learning environment.

Full degree programs (at the graduate level only)

The courses carefully balance academic with practical approaches in order to make you fully prepared to successfully enter the professional arena. The curricula are both rigorous and flexible, allowing you to tailor the program of your choice around your particular interests and career objectives through course electives, certificates, dual degree options, internship opportunities, and study abroad experiences that further internationalize your experience.

US-accredited M.A. in International Relations and Diplomacy: more information
Ph.D. in International Relations and Diplomacy: more information

Dual degree options

The dual programs combine the M.A. in International Relations and Diplomacy with one of the following programs, allowing you to earn two Master's degrees:

IR&D + Diplomacy & Strategic Negociation: more information
IR&D + Master of International Service: more information
IR&D + International Peace and Conflict Resolution: more information
IR&D + Frendh and European Law (LL.M.): more information

Part-time graduate certificate programs

NGO Management
African Studies
Asian Studies
Middle Eastern Studies
Other tailored certificates based on our course offering

More information on Graduate Certificates

Study abroad in Paris

Study abroad programs are available both at the graduate and undergraduate levels. Students enrolled at another university can spend a summer (undergraduate level only), a semester, or a full year in Paris, taking accredited courses to be transferred back to their home university. Students from all countries are welcome.

Study abroad programs

Curriculum

2014-09-03T08:38:36Z

The coursework requirement for the M.A. in International Relations and Diplomacy consists of 14 courses, including 7 electives, for a total of 42 credits.

Note that in an exceptional case, you may request to transfer courses from another institution upon entering the program. This has to be examined on a case-by-case basis with the Academic Coordinator (academics@ags.edu)

Required Courses

(Click on each course title to read its description)

IRD-R-580 : Factors and Theories of Analysis in International Relations and Diplomacy

IRD-R-581 : Research Methodology and Design

IRD-R-682 : Foreign Policy Formulation and Diplomacy

IRD-R-583 : International Public Law

IRD-R-684 : Current Economic Problems and Policies

Additional required courses from the elective pool

IRD-E-507 : Principles of Economics (note: this is a required course for students who cannot demonstrate an adequate background in economics. It is then deducted from the number of electives to be taken)

Foreign Policy Tutorial / 1st year

Additional required courses for the Foreign Policy Paper track only

IRD-E-620 : Diplomacy and International Law (also available as an elective in the Research Thesis track)

Foreign Policy Tutorial / 2nd year

Additional required courses for the Research Thesis track only

IRD-T-690 : Research and Proposal Tutorial

IRD-T-691 : Thesis and Defense Tutorial

Elective Courses

You have to choose seven electives as part as your curriculum.
Important: note that not all of the courses below are available every semester: click here to see the course offering of the upcoming four semesters.

(Click on each course to read its description)

IRD-E-621 : Current Issues in International Relations and Diplomacy

IRD-E-622 : International Organizations

IRD-E-601 : Theory and Origins of Global Conflict

IRD-E-602 : Strategy and Conflict Resolution

IRD-E-603 : Cultural Development and Awareness

IRD-E-501: Geopolitics

IRD-E-502: Geopolitics of Religion

IRD-E-504 : Global Communications, Media and International Affairs

IRD-E-605 : International Trade, Banking and Finance

IRD-E-507 : Principles of Economics
(note: this is a required course for students who cannot demonstrate an adequate background in economics. It is then deducted from the number of electives to be taken)

IRD-E-508 : Beginnings of the Contemporary Political Order

IRD-E-509 : Anthropology and Politics

IRD-E-610 : Post-Modernity and International Relations and Diplomacy

IRD-E-611 : Comparative Politics

IRD-E-514 : International Environmental Politics

IRD-E-616 : Extreme Crisis Situations: Terrorism, Government and Media

IRD-E-617: Gender, Militarization and War

IRD-E-618 : NGOs: An International Perspective

IRD-E-619 : NGOs: Principles and Management

IRD-E-620 : Diplomacy and International Law

IRD-E-699 : Internship

Elective Area Courses

IRD-EA-613 : Issues in U.S. Foreign Policy

IRD-EA-630: A History of the Modern Middle-East

IRD-EA-631: Conflict in the Modern Middle-East

IRD-EA-640 : Contemporary Sub-Saharan Africa

IRD-EA-641: The Scramble for African Resources

IRD-EA-650 : Central and South America

IRD-EA-660 : South Asia: Geopolitical Developments Since WWII

IRD-EA-661 : East Asia: Geopolitical Developments Since WWII

IRD-EA-670 : European Foreign Policies

IRD-EA-671 : The European Union and the World

IRD-EA-672 : Russian Politics

African Studies Concentration

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The African Studies Concentration at ��˾��Ƶ is an opportunity for students pursuing the Master’s program in International Relations and Diplomacy to gain specific knowledge in Sub-Saharan Africa and be able to demonstrate an area specialization for future employers.

This option is especially designed for:

Students who want to work in NGOs, intergovernmental organizations or governmental agencies working in the field of Sub-Saharan Africa
Students who prepare to conduct doctoral or other scholarly research on Africa
Students who have an interest in Sub-Saharan Africa

This option tailors the M.A. in International Relations and Diplomacy curriculum around the subject of Sub-Saharan Africa, by including three components:

A set of two electives on the subject of Africa (more details)
A reading list on African studies, along with specific research activities (more details)
An African-oriented thesis topic (more details)

Throughout this process, students regularly meet with the Concentration advisor to receive guidance in connecting the different components of the concentration and in conducting their research.

At the end of the program, students take a comprehensive examination to ensure that they have have acquired the required set of concepts and theories in African studies provided by the program. More details

Students who complete all of these requirements (coursework, readings, African-oriented thesis, and concentration exam) receive a mention of their African Studies concentration on their diploma.

Coursework

The two courses offered in the area are an introductory course on the politics of Sub-Saharan Africa and a course focusing on the way the presence of oil and other resources impacts and shapes the African continent and its interaction with the rest of the world.

IRD-EA-640 : Contemporary Sub-Saharan Africa

This is an introductory course to contemporary African politics. Students need only a rudimentary background in political science, and no background in African studies. It is recommended that students have some idea of the current economic realities facing African countries, and become familiar with post- colonial ideologies, including dependency and underdevelopment theory. Approached through a comparative examination of the life stories of several of its most important leaders, a political biography approach will allow students to investigate postcolonial African regimes with depth and specificity without requiring of them any previous disciplinary background. After a brief introduction to African political geography – students will learn the map of contemporary Africa – they will systematically sample cases from each of the four broadly defined regions of the subcontinent (West, East, Central and South). But instead of dividing Africa geographically, this course will classify states according to their colonial past (Anglophone, Francophone, Lusophone, Hispanophone, Italophone) in order to test, through comparison of empirical case studies, the central hypothesis of this course: Different forms of colonial domination employed by the British, French, Belgian, Portuguese, Spanish, Italian and Afrikaaner settlers resulted in different post-colonial experiences and regimes.

Learning Objectives:

By the end of the semester students should be able to identify all African states on a map. Additionally, they should:

Have an historical understanding of contemporary African states, both their colonial and post-colonial eras
Know ‘who rules’ today, the dominant political forces (ethnic, electoral, commercial, etc.) and how political power has been acquired and maintained
Be able to conduct biographical research on African leaders,
Be familiar with critical theories of dependency and underdevelopment, neo-colonialism, and imperialism.

IRD-EA-641: The Scramble for African Resources

Natural resources – like conflict oil and blood diamonds – have been blamed for many of Africa’s illnesses, including poverty, corruption, dictatorship and war. This course will explore the debate on the ‘resource curse’ in sub-Saharan Africa, examining such political-economic theories as ‘the paradox of plenty,’ the ‘Dutch disease,’ and the ‘rentier state.’ It also will explore how the politics of extractive economies relate to conflict processes, examining ‘environmental scarcity’ theory, ‘greed versus grievance’ theory, and a number of strong empirical correlations between raw materials export dependency and inter-group struggles for resources in the Third World. Students will apply these theories and approaches to several of the most newsworthy African case studies: Gabon, Angola, Chad, Equatorial Guinea, Congo-Brazzaville, Sierra Leone, São Tomé & Príncipe, Sudan, and Nigeria. The main theme of this course is the ‘oil curse’ in Africa, but other natural resources such as diamonds and timber are also discussed. Its objectives are to describe how primary- resource- dependent development creates dysfunctional politics, economics and government in Africa, and to evaluate initiatives at the international level to change this problem. What makes this course special is its approach, breaking up the vast theoretical literature on the oil curse into separate levels of analysis, moving down from the failure of international governance initiatives to the successes of domestic social forces, to arrive by argumentative structure at the conclusions that real change has come not from above but from below.

Learning Objectives:

By the end of the term students should have a fluency in theoretical perspectives on extractive economies, foreign relations, and political violence, as well as current factual knowledge of politics and economics of country case studies. In the spirit of case study method, students should be able to apply the theories to the cases appropriately, and argue plausible rival theoretical perspectives. Finally students should be familiar with several proposed solutions to the problems evoked over the course of the semester, and should be able to argue the relative merits of each.

Readings and activities

The third component of the concentration is for students to read from a canonic list of works on African politics. These books are kept in the ��˾��Ƶ Library for those students who are doing the concentration. Students receive a set of preparatory questions allowing them to make the most of the readings.

Given our school's privileged location in Paris, it is possible for students in our concentration to meet and interview African politicians, both currently in power as well as those in exile, and to participate in the rich cultural life of African arts that flourish in the former colonial metropole. With its anthropological museums (Musée de l'Homme, Quai Branly), research centers (CEAN, CERI), libraries (BNF, Documentation Française) and thriving cycles of conferences (Sorbonne, College de France) Paris is an ideal place to specialize in African studies. Students are encouraged to take part in the numerous resources which the city has to offer.

African-oriented Master’s thesis

In addition to coursework, students in the African concentration are expected to select as a topic for their Master's thesis a subject dealing with current African affairs.

Some of the thesis already done by concentration students include a study of the role of Chinese oil interests in South Sudan, the causes of the civil war in Ivory Coast, the rise of the responsibility to protect doctrine in Rwanda, the resource scarcity hypothesis in Niger, and the problems of nation-building in the emergence of civil war in Liberia.

Comprehensive examination

Finally, at the end of their studies at ��˾��Ƶ, students take a comprehensive exam on the subject of Sub-Saharan Africa. This exam is a combination of written essays and oral questions. It takes place before the Concentration advisor. Students who have completed all three requirements (coursework, African-oriented thesis, and concentration) should have no problem passing this exam successfully.

Pakistani Elections and the Challenges Faced by the New Government

2013-07-09T00:00:00Z

By Lubna Sunawar,

Ph.D. Candidate in Peace and Conflict Studies at the National Defence University in Islamabad
Visiting SPLIT Fellow at the American Graduate School in Paris

Posted on July 9th, 2013

For the first time in 66 years of Pakistan’s independence, a civilian government led by the Pakistan People’s Party (PPP), has completed a full fixed five-year term in office without facing any military intervention or other type of interruption. In a country where military forces has a history of getting involved through coups or influencing presidents to dissolve parliaments, the PPP made no effort to extend its mandate extra legally.

Today Pakistan is known as a country which has become a hub of Islamic militants. This factor has badly hit Pakistan’s social and economic life from every perspective. The world has a vital stake in who wins these elections and how they proceed to govern. What should we expect from newly elected government in Pakistan?

Pakistan’s historic election of May 11, 2013 could have immense consequences for Pakistan in general and the U.S. in particular. Pakistan’s status as a U.S. major non-NATO ally in the region, and the country’s strategic importance for Western powers particularly for the U.S. has enhanced immensely following Obama administration’s announcement for the subsequent U.S. withdrawal from Afghanistan at the end of 2014. In this given context, elections in Pakistan and the domestic policies of the next elected Pakistani government and its foreign policy agenda are being closely watched by Obama administration hoping to further its own interests in the region.

2013 will surely be a very exciting year in terms of Pakistan’s politics accompanying transitions and likely changes. The timing of the elections seems favourable as it also creates the possibility that the incoming federal government will have the opportunity of better working relationships with the other power centres in Pakistan's state. President Zardari will reach the end of his term in September as President of Pakistan. Mr. Asif Ali Zardari is the 11th President of Pakistan. He is co-chairman of the ruling Pakistan People’s Party (PPP) and the widower of Benazir Bhutto, who served two nonconsecutive terms as Prime Minister in 1990s. A Sindhi from a landowning tribe of Baloch origin, Mr. Zardari rose to eminence after his marriage to Benazir Bhutto in 1987. Between 1993 and 1996, he held various cabinet positions in the second Bhutto administration. He was arrested on charges of corruption in late 1996, following the collapse of the Bhutto government. He was released from jail in 2004. He went into self-exile in Dubai, but returned in December 2007 after Bhutto's assassination. He led his party to victory in the 2008 general elections. He spearheaded a coalition that forced General Musharraf (ex Chief of Army Staff and then President) to resign and was elected President on 6 September 2008.

Pakistan people Party (PPP) led by him has received a huge setback at the polls which was quite expected before the elections. His successor will probably be appointed by the Pakistan Muslim League (PML-Nawaz group), which is the winning party. In November, the Army Chief General Ashfaq Pervez Kyani is going to leave the office who has somewhat managed smooth working relationship with PPP throughout his term in office but has shaky relations with judiciary. Furthermore, in December another major power player in Pakistani politics and in government — the Supreme Court Chief Justice of Pakistan Iftikhar Muhammad Chaudhry — is also set to retire. So all in all, we could see an entirely different cast of political, military and judicial characters in charge in Islamabad by the end of this year.

Pakistan has elected a new parliament under the leadership of Nawaz Sharif. Mr. Sharif rose to prominence as part of General Zia-ul-Haq's military regime in the 1980s He was appointed Chief Minister of Punjab by Zia in 1985. After Zia's death and Benazir Bhutto's being elected Prime Minister in 1988, Sharif emerged as opposition leader from the conservative Pakistan Muslim League. When Benazir was dismissed by then President Ghulam Ishaq Khan in 1990 on corruption charges, Sharif was elected Prime Minister the same year. But relations between Sharif and Ghulam Ishaq too deteriorated, with Ghulam Ishaq tried to dismiss Sharif on similar charges. Sharif successfully challenged the President's decision in the Supreme Court, but both men were ultimately persuaded to step down in 1993 by then army chief Abdul Waheed Kakar who believed that strained relations between President and Prime Minister would give way to political anarchy.

Election results show that the Pakistan Muslim League of former Prime Minister Sharif secured a majority in National Assembly. It was a remarkable comeback for the two-time prime minister in Pakistani politics, who was toppled in a 1999 coup led by the then-army chief Gen. Pervez Musharraf and was sent into self exile in Saudi Arabia for 7 years. (PML-N) is going to form government in the centre but for sure it would be a fragmented parliament without a clear majority most likely comprises of religious parties as coalition. Nawaz Sharif may not have won enough seats in parliament to rule on his own which could have given him upper hand but he has built up enough momentum to avoid having to form a coalition with his main rivals, former cricketer Imran Khan's Tehreek-e-Insaf (PTI) which came second in poll put up a strong fight and he is likely to remain a potent force in politics for years to come. That's a significant gain for Khan’s party that had only ever won one national assembly seat in 2008 general elections; followed by the former ruling Pakistan People's Party (PPP). There is a general perception which generates fear that the need to form a viable coalition might lead to weak government which would make it unable to take foreign policy decisions independently.

There are a number of challenges that the outgoing government has left for the next elected dispensation to tackle.

The newly elected government of Pakistan will face a host of economic problems at home as well as external challenges to tackle. Pakistanis suffer through power outages that can last 18 hours a day and extensive gas outages in the winter. This has seriously hurt the economy and industry sector pushing growth below 4% a year which resulted in inflation that has risen sharply in last five years, and foreign investment dropped. Pakistan is regarded as a failed state because of its poor economic performance, political instability and ongoing violence in the country. The last parliament’s performance was poor by all measures. PPP-led collation government wasted a golden opportunity to turn around Pakistan’s fate as a prosperous country in South Asia. It had a lot of support when it came into power in early 2008, but has completely lost it now and the recent election results have proved it. Pakistan is going through a systematic collapse of state institutions one after the other which has emanated from bad governance. There is no deny in saying, public expectations were dashed in so many ways. Pakistan’s economy is in a state of crisis; corruption, lack of discipline and bad management are other factors which has brought Pakistan to a standstill position. Meanwhile, the national debt has doubled many times thus paying extra burden on a common man. Hardly any politicians pay their fair share of taxes in Pakistan, a custom which has set a bad precedent. Foreign direct investment has never been as low in the history of Pakistan as it has been in last five years. Unfortunately, Pakistan has been ruled by a callous and incompetent elite which has often favored their own self vested preferences over national interests.

Nawaz Sharif, an advocate of free-market economy, is likely to pursue a policy of privatization and deregulation to revive flagging growth. He has said Pakistan should stand on its own feet but in order to revive the economy, it is highly possible that the country will go to the International Monetary Fund (IMF) in August for another bailout to avoid a balance of payments crisis.

The Pakistani military has the reputation for political engineering and manifestation. It usually operates behind the scenes; it has been known to make and unmake majorities and governments and to maintain its primacy and impose its will. Most national and international analysts see the army of Pakistan as the real decision-maker in matters of foreign policy and defense, even when a civilian government is in office. Nawaz Sharif has asserted Pakistan army which has ruled the country for more than half of its tumultuous history, should stay out of politics. However, he will have to work with Pakistan's generals in close collaboration. It is military in Pakistan who sets foreign and security policy and manages the nuclear-armed difficult relationship with the United State. It is generally assumed in army ranks that senior generals are thought to be quite uncomfortable with Mr. Nawaz Sharif come back, whom they see as an untrustworthy figure, and indeed would have preferred the former cricketer Mr. Imran Khan (PTI), whose statements on foreign policy often inline to those of the military. Keeping this in mind, Mr. Nawaz Sharif has been quietly bridging up the gaps with the military in recent weeks.

Recent Political History

If we go back to 1990s, enormous pressure from the military forced Nawaz Sharif to resign from his first term as prime minister in 1993. He became highly unpopular in army after Kargil crisis. His second term ended in 1999 when he was ousted in a military coup led by the General Musharraf. When he becomes prime minister for the third time, he will likely try to reduce the military's influence though seems quite impossible.

Under the new democratic set up, which faces daunting economic and political challenges at home, foreign policy pertaining to neighboring countries in general and U.S. in particular is likely to be both interesting and significant in the near future. Bilateral ties are likely to improve with India, Afghanistan and Iran while Nawaz government will try to strengthen its friendship with the Gulf States. It looks like the revival of Pakistan’s economy will be the top most priority for Nawaz Sharif.
When it comes to foreign policy issues, while all the political parties in Pakistan generally agree on the importance of Pakistan-China relations; China has been an all-weather friend of Pakistan. China has always maintained close military relations with Pakistan but it has not favored any particular faction during the election which is commendable. China, as a growing economic giant and an old ally of Pakistan, will remain at the top of Pakistan's list of foreign policy. It has invested billions of dollars in the past few years in some very important sectors of Pakistan's economy such as telecom and infrastructure building. It has also been the vital key partner in the development of the Gawadar Port in the south-west Pakistan which is a very valuable investment for China from every perspective as it will provide a gateway to the Gulf region for the export of its products as well as import of oil and gas.

Nawaz Sharif has a track record of trying to improve ties with Pakistan's arch rival neighboring India by reducing the need for defence spending. He has already made it clear that he will take up India-Pakistan relations from where he had left them when he was ousted from power in 1999. After conducting nuclear tests in response to India's atomic blasts in 1998, Sharif had worked with his then Indian counterpart Atal Bihari Vajpayee to improve bilateral relations on both sides of the border. After getting victory in recent elections he was talking to the media, Mr. Sharif said he worked hard for a detente with New Delhi before Musharraf deposed him. 'We'll pick the threads where we left. We want to move toward better relations with India, to resolve the remaining issues through peaceful means, including that of Kashmir.’

It is unclear so far what Mr. Sharif's policy will be toward neighboring Afghanistan, where the U.S. plans to withdraw most of its combat troops by end of 2014 and is surely seeking help from Pakistan to negotiate peace talks with the Afghan Taliban. Pakistan and Afghanistan have long tense relations. There is a great hope that newly elected government will also improve relations with Afghanistan and would go to any extent to solve the issues of militancy through dialogue. It is hoped that (PML-N) would support the reconciliation process between the Taliban and Karzai government.

The U.S. and Pakistan have also had a troubled relationship, especially after 2011, accompanied by three major developments: Raymond Davis murder case, American raid operated by U.S. Special Forces in Abottabad in Garrison town of Pakistan army that killed Osama bin Laden, and NATO firing on Pakistani troops at Salala by the end of year.

Sharif is expected to be somewhat more nationalistic and protective of state sovereignty unlike his predecessors who were ever ready to compromise on Pakistan’s sovereignty. He firmly faced U.S. opposition to Pakistan's nuclear test in 1998 and has always criticized unpopular American drone attacks in North-West region of Pakistan. Nawaz Sharif has clearly warned he will stop Pakistan’s involvement in the war on terror, which he considers to jeopardize Pakistan’s internal security. He has been critical of Pakistan People Party (PPP) policy of not stopping the U.S. from conducting operations against terrorists on its territory. This is only fueling and encouraging more radicalism in Pakistan and elsewhere in the region. This is where military would step in which plays a dominant role in foreign policy issues and would definitely not let Mr. Sharif to annoy the U.S and to lose hundreds of millions of dollars as military aid. In addition to this, Washington will also play a deciding role in any bailout package that Pakistan will almost certainly need from the International Monetary Fund to rejuvenate its ailing economy.

Pakistan's ties with the neighboring Iran considerably improved since the fall of Taliban in Afghanistan. There is great hope that the economic and diplomatic ties between Iran and Pakistan are likely to thrive in the near future under Nawaz Sharif government. One of the key reasons is the proposed gas pipeline that is to reach India through Pakistan from southern Iran (also known as the IPI - Iran, Pakistan & India pipeline or Peace Pipeline). This project has been delayed due to Iran's growing economic isolation and U.S. continuous pressure on Pakistan to abandon gas pipeline project with Iran. Pakistan has always resisted this pressure by the U.S. and recently signed this gas pipeline project with Iran to make it a real happening. The project is quite likely to materialize in the near future. This project would help Pakistan to overcome its ongoing energy crisis.

In sum, it is hoped that newly elected government of Nawaz Sharif would make every effort to revive ailing economy of Pakistan by maintaining good relations with all countries of the world in general and with the U.S. in particular. Pakistan has been fighting war on two fronts simultaneously: as an ally of the U.S to root out al-Qaida and facing ongoing militant violence within country. Some good and bold decisions are expected pertaining to foreign policy from a newly elected parliament which is headed by Nawaz Sharif and hopefully Pakistan’s national interests and sovereignty would be protected under his government by keeping Pakistan in first place at national and international level.

Weapons of Mass Destruction?

2013-04-25T14:03:13Z

By Eileen Servidio,
President of the School of International Relations and Diplomacy at ��˾��Ƶ, Professor and Chair of International Law

Posted on April 24th, 2013

Phew. We found some. Weapons of mass destruction. Right in Boston. Who would have thought it? But there they were. I know this because Dzhokhar Tsarnaev, the younger of the two brothers alleged to have committed the Boston marathon bombings, was charged, April 15, with, inter alia:

“Unlawfully using and conspiring to use a weapon of mass destruction (namely, an improvised explosive device) against person and property within the United States used in interstate and foreign commerce and in an activity that affects interstate and foreign commerce, which offense and its results affected interstate and foreign commerce (including but not limited to, the Boston Marathon, private businesses in Eastern Massachusetts, and the City of Boston itself), resulting in death, in violation of 18 U.S. C. § 2332a.”[1]

Who would have thought that one would witness the use of weapons of mass destruction (WMD) in Boston? Not I in any case. A bombing in Boston? Yes, that could be expected. Unfortunately, one can expect a bomb anywhere. But a WMD? No, not in Boston.

However, there is no doubt that the charge is legally, if not logically, founded. Among the definitions of WMD under 18 U.S. C. § 2332a is “any destructive device as defined in section 921 of this title (i.e. explosive device)."

Jumping over to section 921, one reads:

“(4) The term “destructive device” means—
(A) any explosive, incendiary, or poison gas—
(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge of more than four ounces,
(iv) missile having an explosive or incendiary charge of more than one-quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the preceding clauses;
(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and
(C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled.
The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684 (2), 4685, or 4686 of title 10; or any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.”

In other words the term "weapon of mass destruction" can almost mean any device that is a weapon not used for sporting, recreational or cultural purposes. (And therefore Iraq did have WMD, as every country would have according to this.

I have a problem with this. When I think of WMD, I think, chemical weapons, nuclear weapons, biological weapons capable of killing hundreds, perhaps thousands at a time; it is the word ‘mass’ that implies that. Not weapons consisting of, and I quote the criminal complaint, “low-grade explosives that were housed in pressure cookers”.

In criminal law, the importance of the different degrees of behavior and reaction to this behavior cannot be stressed enough. The use of the term WMD, in this and similar cases, is not necessary for the federal government to go into its homeland security mode. The fact that the act can be recognized as an act of terrorism is enough for this to happen. The definition of WMD in the federal texts is a far cry from the definition generally offered on an international level.

The United Nations Commission on Conventional Armaments (CCA) defined the concept of WMD in 1948 as including “atomic explosive weapons, radio active weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in destruction effect to those of the atomic bomb or other weapons mentioned above”.[2]

Resolution 32/84 of the Assembly General of the United Nations relative to the Prohibition of the Development and Manufacture of New Types of Weapons of Mass Destruction and New Systems of Such Weapons reaffirms this definition on 12 December 1977.[3] Other General Resolutions in this area dating from 1996 to 2009 refer also to this definition.[4]

Words are important in law. They mean precise things. Definitions of criminal behavior that are overly broad are generally considered dangerous, giving too much power to those who prosecute. And no matter how serious the Boston bombing was, and it was, this does not take away ones right to put into question laws that are not only inappropriate but truly harmful to the criminal system.

The federal definition of WMD is large, gathering in it weapons that would be incapable of having the ‘mass’ effect that the terms so obviously implies. There is not only no convincing legal reason for this definition, it is prejudicial to the notion of WMD itself. It devalues the dangerousness of the concept. One does not call a slingshot a lethal weapon (although it could be). One does not call a homemade bomb a WMD.

[1] All the “interstate or foreign commerce” references are only due to the necessity of linking this to a power constitutionally granted to the federal government.

[2] Quoted by Dr. W. Seth Carus in the report « Defining « Weapons of Mass Destruction » », National Defense University Press, D.C. January, 2012, p. 10.

[3] Ibid.

[4] Ibid.

The U.S. Supreme Court’s Decision on the National Health Bill

2012-10-30T15:48:55Z

By Eileen Servidio,
President of the School of International Relations and Diplomacy at ��˾��Ƶ, Professor and Chair of International Law

Posted on October 30th

On June 28, 2012 the United States Supreme Court upheld the Patient Protection and Affordable Care Act (ACA), a signature piece of legislation of President Obama, also referred less respectably as “Obamacare”. This victory for the Obama Administration was due in great part to Chief Justice John G. Roberts Jr. who sided with the more liberal members of the Court giving them the majority vote.[1] Some were amazed by this, others less so, however, placing Roberts on the pedestal of great Supreme Court justices that prefer to follow loyally the Constitution rather than their own political, social or other views may be premature. Roberts upheld an important part of the law while putting limits on the powers of the Federal Government, limits that have not been recognized by the Court for some years.

National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. (ACA case) questioned the constitutional validity of the ACA; quite simply, does the Federal Government, in this case Congress, have the power to pass this law. Is the law, or parts of this law in violation of the Constitution?

Congress enacted the ACA in 2010.[2] The goal of the law is to increase the number of people covered by health insurance and to lower the cost of health care. According to the statistics quoted by Justice Ginsburg[3] :

“…most people in the United States obtain health insurance. Many (approximately 170 million in 2009) are insured by private insurance companies. Others, including those over 65 and certain poor and disabled persons, rely on government-funded insurance programs, notably Medicare and Medicaid. Combined, private health insurers and State and Federal Governments finance almost 85% of the medical care administered to U.S. residents[4] (….) Not all U.S. residents, however, have health insurance. In 2009, approximately 50 million people were uninsured, either by choice or, more likely because they could not afford private insurance and did not qualify for government aid.[5]…As a group, uninsured individuals annually consume more than $100 billion in health-care services, nearly 5% of the Nation’s total.”[6]

As Ginsburg points out, not being able to pay for health care does not mean that health care will not be provided so that health-care providers (hospitals, doctors…), it was calculated, did not receive $43 billion worth of the $116 billion in care given in 2008[7] placing a heavy burden on the health care market; the consequences of this being that health-care prices and insurances premiums increase putting the burden on those who do pay.

Among the hundreds of provisions in the over 900 pages of the Act, two were put into constitutional question. The National Federation of Independent Business, 26 States and several individuals brought suit to federal court claiming that the “individual mandate” and the Medicaid extension provisions were contrary to the U.S. Constitution.[8] That is to say outside the power of the Federal Government and thus should be pronounced invalid.

The individual mandate stipulates that by 2014 most individual will be responsible for having a minimum essential coverage or pay a penalty of $95 in 2014, $495 in 2015 and $750 in 2016, or up to two percent of income by 2016, with a cap at the national bronze plan premium.[9] There are exceptions to this requirement; religious objectors, those unable to afford coverage, taxpayers with incomes less than 100% of the Federal Poverty Level (FPL)[10], Indian tribe members, persons receiving a hardship waiver, persons that are not lawfully present, those incarcerated and persons not covered for less than three months.

Medicaid expansion was not in itself put into question. It provides that:

“States may expand Medicare eligibility early as April 1, 2010. Beginning on January 1, 2014, all children, parents and childless adults who are not entitled to Medicare and who have family incomes up to 133 percent FPL will be eligible for Medicaid. Between 2014 and 2016, the federal government will pay 100 percent of the cost of covering newly-eligible individuals. In 2017 and 2018, states that initially covered less of the newly-eligible population (“Other States”) will receive more assistance than states that covered at least some non-elderly, non-pregnant adults (“Expansion States”). States will be required to maintain the same income eligibility levels through December 31, 2013 for all adults, and this requirement would be extended through September 30, 2019 for children currently in Medicaid”.[11]

However, the consequences to the States that refuse to implement the extension were put into question; all Medicaid federal funding would be held back from any State that did not comply.

If either of these provisions were voted by any of the 50 States, its legality would surely not have been put into question. However, the ACA is a federal law, and as such it is required to fall into one of the categories of powers that the federal government is granted by the Federal Constitution. This fact stems from the historical origins of the United States. The experience as colonies under Great Britain left Americans strongly wary of a centralized government possessing wide powers; the centralized government should have the minimum amount of power necessary to unite the States, while leaving each State sovereign. Thus, the first government did not take the form of a federation but a confederation. However, this weak central government--able to enact law but not to enforce them, unable to levy taxes, with most of the important decisions needing approval of 9 out of the 13 States--led the States to many difficulties including economic problems, protectionist acts, and boundary disputes. It was then thought by some that the centralized government needed more power to hold the Nation together. The Federalists, a group of persons advocating a stronger, federal style government, led the struggle for the ratification of a Federal Constitution and the establishment of the federal government in 1789.

However, the fear of an omnipresent, powerful central government and of the loss of much of the States powers resulted in a Constitution that strengthened the central government without granting it what is known as a “general police powers”. This is the power that grants a government the authority to act in any area to protect the health, safety and the general welfare of its citizens. The 50 States have this power, not the Federal Government. The Federal Government is granted by the Constitution enumerated powers; powers that are listed in the Constitution. In these areas and only in these areas can the Federal Government act, be it the legislative, executive or judicial branch. All powers that are not exclusively Federal powers belong to the States[12] that often guard them jealously for the sake of what some like to refer to as their independence and sovereignty. Thus, when Congress enacts a federal law, it must be pursuant to one of the powers that are listed in the Constitution, if not the law in question is not valid. The United States Supreme Court has the final word on whether a law is constitutionally valid or not since it has the final say on how the U.S. Constitution is to be interpreted.

Thus, where a federal law or action has been enacted or taken, one can always ask: Under which enumerated power does this law or action fall?

In the ACA case the Supreme Court was required to decide if the individual mandate and the expansion of Medicaid were within the powers granted by the Constitution to the Federal Government. If this were not the case, the provisions would be invalidated. The two provisions will be treated separately.

Is the provision concerning the individual mandate constitutionally valid:

The individual mandate does not force most people to be insured, however, it does require them to pay a penalty if they are not. As always where one is verifying the constitutionality of a federal law, the question is: What is the enumerated power that grants the Federal Government the authority to take the said measure?

Concerning Congress, the enumerated powers can be found in Article I Section 8 of the U.S. Constitution that begins: “Congress shall have power”. There follows 17 clauses explicitly listing these powers such as the authority to declare war and to raise and support armies and a navy. Some of these powers are vested exclusively in the Federal Government as for example the power to coin money. Some are shared with the different States as is the power to lay and collect taxes.

Most importantly, when the Federal Government has a power, it has it entirely as Chief Justice John Marshall emphasizes in Gibbons v. Ogden:[13]

“This power (speaking of the interstate commerce power), like all others invested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution”.

And as Marshall so dramatically proclaimed in McCulloch v. Maryland[14]:

“If any one proposition could command the universal assent of mankind, we might expect that it would be this—that the government of the Union, though limited in its powers, is supreme within its sphere of action.”[15]

Certain of these enumerated powers provide great authority to the Federal Government such as the taxing and spending powers and perhaps surprisingly for those who do not follow American Constitutional Law, the Interstate Commerce power. This latter power has allowed Congress to make law in areas which may seem out of Federal Government limits at first view. And this is precisely what the Government argued in the ACA case; that Congress had the power to enact the individual mandate provision in pursuance of the Interstate Commerce Clause.

Interstate commerce power: Article I Sect. 8 cl. 3 grants Congress the power “to regulate commerce with foreign nations and among the several States. This seemingly innocent clause has gradually been interpreted by the Supreme Court in such a manner that many areas that are not listed in the other enumerated powers can be considered ‘interstate commerce’ and thus may be regulated by the Federal Government. Some examples. In Gibbons v. Ogden, Gibbons was granted a license by Congress to operate steamboats between New York and New Jersey. Nevertheless, Ogden had already received an exclusive license from the New York legislature and therefore obtained an injunction from New York against Gibbons. New York considered that the license granted by Congress was not valid being outside an area that the Federal Government can regulate. However, the Supreme Court did not invalidate the federally granted license considering that it came under the Interstate Commerce Clause. According to the Court, the term “commerce” is not to be taken in a narrow sense, navigation can be commerce. Also, commerce “among” the States must mean also “commerce with the states” which means that the power of Congress can be exercised “within the territorial jurisdiction of the several states”.[16]

To emphasize the authority of the Federal Government in the areas enumerated, the Court addresses the manner in which these powers, and not just the interstate commerce power, should be interpreted:

“This instrument (the U.S. Constitution) contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the constitution which gives countenance to this rule?

Marshall, writing for the Court, then proceeds to answer this by pointing out that neither the “gentlemen of the bar” nor the Court has “been able to discern (one sentence in the constitution), that prescribes this rule. We do not, therefore, think ourselves justified in adopting it (…). We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.”

However, for some years after this decision, the Court did not take this extensive view of the Interstate Commerce Clause until 1937 in National Labor Relations Board v. Jones & Laughlin Steel Corp.[17] The Federal Law in question was the National Labor Relations Act of 1935 (NLRA). Since the invalidation of an earlier, similar federal law[18] considered unconstitutional by the Supreme Court, employee’s rights were being abused and union members were being blacklisted.

The NLRA was enacted by Congress to guarantee employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection”. To facilitate the enforcement of this law, the Act created the National Labor Relations Board. However, the question as always was did the Federal Government have the right to regulate in this area. The concept of having a central government powerful enough to regulate such an essential element of everyday life as the workplace and to be able to interfere directly with labor disputes through a federal board was a large mental leap for the Court. Though less so at the time for the people since it was the era of the Great Depression and desperate measures for desperate times seemed more acceptable. In the early 1930s strikes broke out in many places and factories were being taken over by employees.

The larger question was simply the scope of the power of the Federal Government to regulate the economy. This question divided the Legislative and the Executive Branches on one side and the Judiciary on the other. Earlier decisions of the Court invalidated efforts by the Federal Government in this area using two legal arguments; that the Due Process Clause of the Fifth Amendment guaranteed contractual freedom between an employer and employee without governmental interference and that the labor relations in manufacturing or production had only an indirect effect on interstate commence and thus the Interstate Commerce Clause did not invest the Federal Government with this power. These decisions frustrated the efforts of Franklin D. Roosevelt and his Democratic Party that had won the 1936 elections hands down. The then Court had what some considered a laissez-faire interpretation of the Constitution. That is, there was “hardly any limit but the sky to the invalidating of (laws) if they happen to strike a majority of the Court as for any reason undesirable”.[19] The most conservative of the Justices, James McReynolds, Pierce Butler, Willis Van Devanter and George Sutherland, often known as the Four Horsemen, thwarting regularly all attempts by Roosevelt to get through his New Deal legislation.[20] However, Roosevelt did not accept defeat easily. He decided to attempt getting passed in Congress the Judiciary Reorganization Bill of 1937 that would have allowed him to appoint additional justices to the Supreme Court in order to obtain a court more favorable to his vision.[21] Although this infamous “court packing” scheme had little chance of getting enacted (even some of the Democrats were against it)[22] the Court took a sudden turn and began to validate New Deal legislation.

This about-face began with the decision in Jones & Laughlin. The Supreme Court upheld the NLRA. There is no power enumerated in the Constitution that addresses explicitly the authority of the National Government to regulate the labor issue in question so that for this law to be considered valid, it would have to draw its authority from the Interstate Commerce Clause. And this is precisely what the Supreme Court concluded. The company in question in the case, Jones & Laughlin Steel Corp. manufactured iron and steel only in Pennsylvania. It did own mines in other States and much of its production was shipped to other States. Its unfair labor practices were leading the workers to strike. The fact that the company was engaged in “production” did not, according to the Court, prevent the effect of such strikes to have an “effect” on interstate commerce. It was decided that this law regulated an activity that could have a “substantial economic effect” on interstate commerce:

“Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” (high-lights added)

Both Chief Justice Charles Evans Hughes and Justice Owen Roberts, who previously had been of the opinion that labor relations associated with production enterprises should be regulated by the States, voted for the validity of the Act. Some feel that they had a “constitutional” change of heart. Others feel this switch would make the “packing the Court” scheme unnecessary and refer to this as “a switch in time saves nine”.

This expansion of the Interstate Commerce Clause continued to such a point that few activities could not be regulated under it. For example, in a unanimous decision, Wickard v. Filburn,[23] the Supreme Court considered that wheat that was consumed on the farm of the farmer who grew it -- thus never leaving the farm it was grown on-- should be subject to the Second Agricultural Adjustment Act, a federal law that placed a quota on wheat. Filburn never sold his wheat in the open market in the year in question. However, he sowed 12 acres of wheat more than he was permitted by the national law and was imposed a penalty.

Filburn argued that wheat grown for personal consumption, wheat that was never to be sold on the open market, could not be regulated by the Federal Government under the Interstate Commerce Clause. There was no “commerce” and no “interstate” activity. At the time of this decision, many of the Justices had since been appointed to the bench by Roosevelt. The Court argued that wheat consumed by the farmer himself could still affect interstate commerce. The Court recognized that Filburn’s own consumption could seem trivial, however if taken with all the other wheat which is home-consumed it is no longer so. Less demand of wheat could depress prices:

“One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. ��˾��Ƶ-grown wheat in this sense competes with wheat in commerce.”

This extensive interpretation of the Interstate Clause certainly allows much national action in regulating the economy.

Nevertheless, this progressive expansion of the interpretation of the Interstate Commerce Clause finally ceased with United States v. Lopez.[24] In a 5 to 4 decision, the Supreme Court invalidated a 1990 federal law, the Gun-Free Zone Act, which made it a federal offense to “knowingly possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone”. The Solicitor General, Drew S. Days, argued that the law targeted possession and not sales and therefore supplemented State law not substitute for it and therefore the link between the Interstate Commerce Clause did not have to be as strong. The Federal Government had argued that possession of firearms in a school zone substantially affects the functioning of the national economy by the cost of violent crimes “through the mechanism of insurance, those costs are spread throughout the population” and since people become less willing to travel to areas that are unsafe. Guns in school affect the learning process producing less productive citizens that in turn affect the national economy. The National Education Association and antigun groups joined the administration in this reasoning as the National Rifle Association and other pro-gun organizations argued against them. Chief Justice William H. Rehnquist wrote for the majority. The administrations’ arguments were rejected by the Court who reasoned that the federal law had nothing to do with “commerce or any sort of economic enterprise, however broadly one might define those terms”. According to the decision, there was no precedent in the Court’s prior cases to uphold such a law that had no nexus with interstate commerce whatsoever. The Court concluded that if the Government’s argument concerning the “cost of crime” were permitted to pass as the link with the Interstate Commerce power, then the Federal Government would be able to enact in all areas that were related to the economic productivity of an individual. That is to say, the Federal Government would no longer have enumerated powers but would have the same powers as the States, to take any action for the welfare of its citizens:

“(…) it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate”.[25]

Justice Clarence Thomas in his concurring opinion historically demonstrated how the Supreme Court had granted the federal government a “blank check” under the provision of the Interstate Commerce Clause. This decision demonstrated the radical change made in the Court by the appointments of both Presidents Ronald Reagan and George Bush.[26]

The ACA decision goes a step further in limiting the Interstate Commerce Clause by refusing to accept the argument that the Patient Protection and Affordable Care Act is a valid exercise by Congress of this power.

Chief Justice Roberts lists the three broad categories that have been defined by precedent to be activities that Congress may regulate under the Commerce Clause:

--the channels (highways, waterways…) of interstates commerce;

--the instrumentalities (people, machines…) of interstate commerce;

--and activities that have a substantial effect on interstate commerce.

The Government argued that Congress can require persons to buy health insurance since the failure to do so has a substantial effect on interstate commerce thus fitting into the 3^rd category. To support this, the Government invoked the Necessary and Proper Clause.

This clause, often referred to as the Doctrine of Implied Powers, is found at the end of the list of enumerated powers: “Congress shall have Power…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”. In other words, the Government has implied powers that allow it to put into effect the enumerated powers.

This clause was first interpreted by the Supreme Court in one of its most famous cases, McCulloch v. Maryland.[27] The Supreme Court considered that Congress had the power to charter a national bank in the State of Maryland that had as its purpose to regulate currency and national economic questions although there is nowhere in the Constitution that explicitly grants the power to charter a bank to the Federal Government. McCulloch declared that there is no exclusion in the Constitution of “incidental or implied powers”[28] nor does the Constitution mention that “everything granted shall be expressly and minutely described”. Since a constitution is not a code, it can only give a “great outline” from which the minor details can be deduced. Thus, the fact that the enumerated powers list such activities as the powers “of levying and collecting taxes throughout this widely-extended empire; of paying the public debts, both in the United States and in foreign countries; of borrowing money, at home and abroad; of regulating commerce with foreign nations, and among the several states; of raising and supporting armies and a navy; and of carrying on war…” Congress must also have the means of executing them. The State of Maryland had argued that the adjectives “necessary and proper” actually limited the means the Government could use to execute its powers. However, according to the Court:

“An interpretation of this clause of the constitution, so strict and literal, would render every law which could be passed by congress unconstitutional; for of no particular law can it be predicated, that it is absolutely and indispensably necessary to carry into effect any of the specified powers; since a different law might be imagined, which could be enacted, tending to the same object.”

McCulloch stated that the term “necessary” is currently used as meaning “no more than that one thing is convenient, or useful, or essential to another”. Thus the implied powers must be “appropriate” as a means to executing the enumerated powers and must not go against the Constitution:

“The court, in inquiring whether congress had made a selection of constitutional means, is to compare the law in question with the powers it is intended to carry into execution; not in order to ascertain whether other or better means might have been selected, for that is the legislative province, but to see whether those which have been chosen have a natural connection with any specific power; whether they are adapted to give it effect; whether they are appropriate means to an end. It cannot be denied, that this is the character of the Bank of the United States.”

In the ACA case the Government made the point that everyone will eventually need health care but those who are not insured will often not be able to pay for it and since federal and state laws require hospitals to provide a certain amount of care for these people, hospitals receive only a portion of compensation for the care they provide. Hospitals then pass on these losses to insurers by charging more and the insurers pass on their losses to the insured by raising premiums. It was estimated by Congress that the average family is required to pay an average of $1,000 per year to make up for those cared for without insurance. The individual mandate is a means of preventing this “cost-shifting”. A cost-shifting that has, according to the Government, “a substantial and deleterious effect on interstate commerce”.

However, the majority opinion rejects the argument that the individual mandate can be enacted by Congress pursuant to the Interstate Commerce Clause. Chief Justice Roberts writing for the majority recognizes the extensive interpretation of the Commerce Clause by the Court, nevertheless he emphasizes the fact that “Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product.” He continues this reasoning stating that if the Constitution grants Congress the power to regulate commerce this “presupposes the existence of commercial activity to be regulated”. “If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous”. He esteems that “(t)he language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated”. This premise he corroborates with examples of other federal powers; the power to coin money and regulate its value and the power to raise and support armies and to provide and maintain a navy and the power to regulate these arm forces. In each of these cases, he underlines, the power to regulate is preceded by the power to create that which is regulated: “If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary”.

In other words the individual mandate does not regulate existing commercial activity but “compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects commerce”. To underscore the likely dangerous consequences of recognizing the Commerce Clause as the legal support of the individual mandate, Roberts proposes to consider the American diet:

“(…) many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance (….). The failure of that group to have a healthy diet increases health care cost”.

He quotes the increased cost of obesity on health care and the fact that these costs “are borne by other Americans”.[29] Those leading unhealthy life styles pay only a “fraction” of the costs related to their behavior, it is the society that pays. Thus he wonders, if one follows the logic of the Government’s argument cannot one order everyone to eat a healthy diet:

“People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures joined with the similar failures of others can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorized Congress to use its commerce power to compel citizens to act as the Government would have them act.”

Robert’s main argument for rejecting the Commerce Clause as a support for the individual mandate is thus that “(t)he power to regulate commerce presupposes the existence of commercial activity to be regulated”. And according to Roberts this activity does not exist in the case of the individual mandate:

“The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”

This argument seems to defy the reality, the Court’s precedent and most importantly the Constitution itself.

Reality since the commerce of medical care does actually exist. The lack of participation of some in the actual purchasing of medical insurance does not in any manner negate this. The individual mandate only confirms what already should exist. Justice Ginsburg, in her part concurring, part dissenting opinion, rejects the Chief Justice’s argument that the uninsured cannot be considered active in the market for health care because the “proximity and degree of connection between the (uninsured) today and (their) subsequent activity is too lacking”. Ginsburg offers statistics that demonstrate that 60% of persons without insurance visit a hospital or doctor’s office each year and that 90% of these will do so within 5 years. So that the “proximity” and the “degree of connection” between the uninsured and their use of the “medical activity” is refuted.

Ginsburg continues by pointing out that it is the role of Congress and not the Court to “delineate the boundaries of the market the Legislature seeks to regulate” and it is not for the Court to decide as Roberts did that only transactions that will occur imminently can be considered a transaction that can be regulated.

The individual mandate to purchase health insurance or to pay a fine has been compared to the mandate of requiring individuals to obtain car insurance before being able to register an automobile which means, no insurance, no legal driving. The major difference is the fact that this mandate which is required by virtually all the States, is exactly that, a State requirement, it is not a federal law.[30] Many think that it should also be up to the States and not the Federal Government to require or not the purchasing of health insurance as Massachusetts did.[31] Nevertheless, the importance of the Federal Government regulating health care cannot be overly emphasized. As Ginsburg so well states, the States cannot handle the problem themselves:

“Like Social Security benefits, a universal health-care system, if adopted by an individual State, would be “bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose”...[32] An influx of unhealthy individuals into a State with universal health care would result in increased spending on medical services. To cover the increased costs, a State would have to raise taxes, and private health-insurance companies would have to increase premiums. Higher taxes and increased insurance costs would, in turn, encourage businesses and healthy individuals to leave the State.[33]

Facing that risk, individual States are unlikely to take the initiative in addressing the problem of the uninsured, even though solving that problem is in all States’ best interest. Congress’ intervention was needed to overcome this collective-action impasse”.

Is it not the role of the Federal Government, when it has the power to do so, to legislate in problem areas that cannot be effectively regulated by the States since a uniform national law is required? And of course Congress could have opted for a program such as Social Security in which the sole payer is the Federal Government. However Congress decided to leave an important role to private insurers and state governments.

According to precedent, the Commerce Clause could effortlessly be considered to authorize Congress to enact the individual mandate requirement of the ACA. Ginsburg clearly refutes Roberts’s allegation that previous Supreme Court decisions do not support “(t)he proposition that Congress may dictate the conduct of an individual today because of prophesied future activity”. Citing Wickard and Gonzales v. Raich,[34] Ginsburg points out that the Court has recognized Congress’s Commerce power to regulate areas because of “a prophesied future transaction”.

Wickard also stressed the importance of taking into account the realities of a substantial effect on the economy more than trying to estimate if the effect was direct or indirect. It is undeniable that the effect on the economics of health care due to those not insured is substantial.

Lopez, the case that finally put a stop to what seemed the never-ending expansion of the interpretation of the Commerce Clause certainly does not contradict this. This case, as earlier mentioned, examined the validity of the Gun-Free Zones Act, a federal law prohibiting the possession of a firearm in a school zone. The Court admits that concerning the 3^rd category of activities that have been considered interstate commerce—activities that have a substantial affect on interstate commerce—previous decisions left a certain doubt if the effect had or not to be a “substantial” one. Lopez makes it clear that this element is required:

“Within this final category, admittedly, our case law has not been clear whether an activity must "affect" or "substantially affect" interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause. (…) We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity "substantially affects" interstate commerce.”

The Lopez Court emphasizes the fact that even though “Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce” it would have “enabled (the Court) to evaluate the legislative judgment that the activity in question substantially affected interstate commerce”. These substantial burdens on interstate commerce were presented in the ACA case.

The Lopez Court concluded that “a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce”. Again this is far from the ACA case where there is an economic activity involved.

Finally, Robert’s argument seems to defy the Constitution by adding a condition to the Commerce Clause that is not required by this text. As Ginsburg states “(t)he Chief Justice limitation of the commerce power to the regulation of those actively engaged in commerce finds no home in the text of the Constitution or our decisions”.

One often speaks of the enumerated powers as the “activities” that the Federal Government can regulate. One could just as soon speak of the “areas” in which the Federal Government has power to regulate. The Constitution itself does not speak of activities. It simply grants power to Congress to “regulate Commerce…among the States”. As Gibbons v. Ogden points out referring to the enumerated powers in the Constitution “(we) know of no rule for construing the extent of such powers other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred”. Congress has the power to regulate interstate commerce. Precedent has concluded that this means areas or activities that have a substantial effect on interstate commerce. This is undoubtedly the case of the individual mandate.

Nevertheless, it could be argued that the authors of the Constitution did not intend for the Commerce Clause to take on such a momentous role. It must be remembered that under the Articles of Confederation there were many economic problems between the States and protectionism was abundant with the central government having no power to resolve these issues. The Interstate Commerce Clause was the response to this. As Madison so succinctly put it:

“If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposed consists much less in the addition of NEW POWERS to the Union than in the invigoration of it ORIGINAL POWERS. The regulation of commerce, it is true is a new power; but that seems to be an addition which few oppose and from which no apprehensions are entertained.”[35]

However, if the Commerce Clause has lived a life beyond what the Founding Fathers could have imagined, that can also be said of other Constitutional provisions. The Court’s own precedent must take priority here and not the original intentions of the authors of the Constitution unless one is willing to overturn all the progress the Court has made in interpreting the Constitution so that it maintains contemporary significance.

Taxing power: Nevertheless, we know that the individual mandate was not invalidated. The Government had advanced two arguments supporting the constitutional authority to enact this provision; the first we have seen was the Commerce Clause which was rejected by the majority of the Court. The second, just in case the first was rejected, was that ACA was enacted under the federal authority to lay and collect taxes.

The taxing power as the federal spending power is interpreted largely in the sense that this power is not tied to the other enumerated powers; the Federal Government has the power to tax and spend in areas that it does not have the right to regulate. The obvious problem that can incur is that the Federal Government uses its taxing power to regulate areas that it is not constitutionally allowed to regulate. Certainly it is recognized that taxing may always have some regulatory effect, however this effect should remain “incidental”. The Court generally requires that the tax is a “real tax”, that is, that it raises some revenue, a condition that is not generally difficult to establish.[36] Taxing, as spending, however, must be in the general welfare of the people.

Roberts deems that although the ACA speaks of a “penalty” and not a “tax” that the “text of a statute can sometimes have more than one possible meaning” and offers the usual example of the law that reads “no vehicles in the park” which may or may not allow bicycles in the park. He continues to argue that it is “well established that if a statue has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so”. The notion of “vehicle” may be open to interpretation, however the difference between a “penalty” and a “tax” is not. The dissenting opinion speaks of “the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive”. And as it so importantly points out “(t)he issue is not whether Congress had the power to frame the minimum coverage provision as a tax, but whether it did so”. The answer to that is simply, it did not.

As the Government itself states, if the Act was accepted under the Commerce Clause, the individual mandate would mean that persons were required to purchase health insurance or be penalized. Under the taxing power, the individual mandate “only imposes a tax on those without insurance”. Quoting an earlier decision,[37] Roberts states that the “question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one”. And he continues: “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality”.[38] According to him, not buying insurance would just be “another thing the Government taxes like buying gasoline or earning income” without taking into account that buying gasoline is very unlike not buying insurance. And as the dissenting opinion underlines there is a difference between the Court “strain(ing) to construe legislation so as to save it against constitutional attack” and rewriting a statute “to be what it is not”. In this case, there is simply no way (….) to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty”. Referring to precedent the dissenting opinion states that “(w)e have never classified as a tax an exaction imposed for violation of the law, and so too, we have never classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences of a penalty—such as “license” (License Tax Cases, 5 Wall. 462 (1867)) or “surcharge” (New York v. United States, (505 U.S. 144)). But we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty”. Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction a “penalty”.”

The “nail in he coffin” for the dissenting opinion is that the mandate and penalty are found in Title I of the Act, that is in its core and not in Title IX which contains the Act’s Revenue Provisions.

It seems unfortunate that Roberts felt the necessity to rewrite the text when simply accepting the Court’s own precedent concerning the Commerce Clause could have more logically been the solution. In addition, the majority held that the Anti-Injunction Act that provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person”[39] meaning that those subject to a tax must first pay it before suing for a refund does not apply in this case. Roberts deemed that Congress did not intend the payment of the penalty to be treated as a “tax” for the purposes of this Act. Thus the Anti-Injunction Act does not bar this suit. As the dissenting opinion states “(the Government and those who support its position on this point make the remarkable argument that §5000A is not a tax for the purposes of the Anti-Injunction Act, (…) but is a tax for constitutional purposes (…”.) This “carries verbal wizardry too far, deep into the forbidden land of the sophists”.

Is the provision concerning the Medicaid expansion constitutionally valid?

The ACA expands the scope of the Medicaid program, considerably increasing the number of persons that the States would cover. In turn, the Act increases federal funding to cover the States’ cost of this expansion. However, if a State refuses to implement the new coverage requirements it may lose not only the federal funding for those requirements, but all of its federal Medicaid funds. The States challenging the Act argued that this was coercion by the Federal Government and therefore this section of the provision was constitutionally invalid. The majority of the Court agreed.

The Spending Clause of the Constitution[40] grants Congress the power to spend for the general welfare of the people. As with the taxing power, the spending power is not tied to the other enumerated powers. Roberts confirms that the Court precedent has “long recognized that Congress may use this power to grant federal funds to the States, and may condition such a grant upon the States to their “taking certain actions that Congress could not require them to take”.”[41] So that conditions by the Federal Government can be put on the States that accept federal funds. However, there are limits on what can be done to ensure State compliance. As Roberts states, one can look at this as one looks at a contract “(t)he legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract’”.”[42]

Respecting this limitation is, according to Roberts, critical in “ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system”.

The States claimed that the threat of losing all federal Medicaid funding “serves no purpose other than to force unwilling States to sign up for the dramatic expansion in health care coverage effected by the Act”. And although Roberts upholds the right of Congress to condition federal funds since it allows Congress to control that the funds are being used for the general welfare as it sees it, he accepts the States reasoning that where such conditions “take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the States to accept policy changes”. He concludes that the possibility of cutting off all funds to a State not implementing the extension of the Medicaid program is not acceptable.

To support this, Roberts argues that the Medicaid expansion is not a simple modification of the existing program thus treating the existing Medicaid program and the expansion of this program as two independent programs. And this, even though the Social Security Act which includes the original Medicaid provisions provides “(t)he right to alter, amend, or repeal any provision”. A right that was agreed to by the States that accepted this original program.

Nevertheless, Roberts claims that the ACA is not an expansion by “degree” but is “a shift in kind” transforming the program into one “to meet the health care needs of the entire nonelderly population income below 133 percent of the poverty level and no longer a program “to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage”. Therefore the right to amend or alter the program accepted by the States is not the right “to transform it so dramatically”.

One agrees more with Ginsburg’s opinion on this point. She refers to South Dakota v. Dole[43] that recognized four criteria that condition the federal spending power:

“The conditions placed on federal grants to States must (a) promote the “general welfare,” (b) “unambiguously” inform States what is demanded of them, (c) be germane “to the federal interest in particular national projects or programs,” and (d) not “induce the States to engage in activities that would themselves be unconstitutional”.”

Ginsburg does admit that the Supreme Court in Dole did “mention” without really adopting a limitation which would not allow Congress to offer a “financial inducement…so coercive as to pass the point at which ‘pressure turns to compulsion’.”[44] She also underlines the fact that until the present decision, the Court had never ruled that the funding “crossed the line between temptation and coercion”.

She does not agree with Roberts that the ACA is a “new” program and that if States did not comply they would lose funding “earmarked for any other program”. They would be losing the funding for Medicaid and only Medicaid:

“That is what makes this such a simple case, and the Court’s decision so unsettling. Congress, aiming to assist the needy, has appropriated federal money to subsidize state health-insurance programs that meet federal standards”.

She emphasizes the point that the Federal Government could have decided to operate its own health care for the poor as it does with Medicare for the elderly but decided to leave this in the hands of the States with federal funding. She also suggests the right of Congress to repeal its own Medicaid program which of course would then leave the States in the same situation of those who do not comply with the expansion.

She then proceeds to demonstrate that the four conditions in Dole are respected by the expansion program.

Roberts accepts the fact that new Medicaid funding will not be granted to States who refuse to comply with the expansion but refuses the power to end existing Medicaid funding. Ginsburg underlines the danger of this precedent:

“The Chief Justice sees no need to “fix the outermost line,” Steward Machine, 301 U.S., at 591, “where persuasion gives way to coercion,” ante, at 55. Neither do the joint dissenters…Notably, the decision on which they rely, Steward Machine, found the statute at issue inside the line, “wherever the line may be.” 301 U.S., at 591.”

She foresees future cases concerning challenges to the Spending Clause and wonders how one will be able to decide if a State has truly a choice in accepting funds; “the coercion inquiry, therefore appears to involve political judgments that defy judicial calculation”.

The ACA was “saved” by this decision due particularly to Roberts’ shift in siding with the more liberal Justices. However, as we have seen, the two provisions put into constitutional question were not both accepted; the Federal Government withholding all Medicaid funding in the case of a State deciding not to implement the expansion was considered unconstitutional.[45] The individual mandate was nevertheless upheld and this in itself was essential.

None the less, we have also seen that the individual mandate was upheld in pursuance to the Taxing Clause and not the Interstate Commerce Clause. This is not just a technicality and the importance of this needs to be stressed. If Lopez put an end to the progressive enlarging of the interpretation of the Commerce Clause, the ACA case actually narrows previous interpretations by the Supreme Court. The federal law in Lopez was in an area that could arguably be considered outside the economic realm and the majority was more than likely correct in considering that if that federal law was pursuant to the Commerce Clause, nearly every law would be, thus granting the Federal Government a quasi-general police power. However, this is not the case with the ACA. This latter is in the economic realm and the reasoning in Lopez just does not apply here. When one appreciates the importance of the power that the Commerce Clause grants the Federal Government, one can also understand that limiting this power in any manner could have substantial effect on future federal laws.[46]

During his confirmation hearings before the Senate Judiciary Committee, Roberts gave his views on the role of judges and justices:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

Respecting precedent thus was thought to be one of the duties of the courts. However, as Adam Winkler[47] pointed out since Roberts entered the Court in 2005 there has been “one landmark decision after another”. Two examples. In a 5-to-4 decision, Citizens United v. Federal Election Commission,[48] the Supreme Court, overturning two of its prior decisions,[49] decided that the First Amendment freedom of speech does not allow the Government to regulate political speech of corporations or unions and found no compelling governmental interest for banning corporations and unions from making election-related independent expenditures. Another 5-to-4 decision[50] held that the Second Amendment’s guarantee of the right of the individual to own a firearm is not linked to the necessity of a militia giving the go ahead to anyone who wants to challenge gun control laws.[51] Certainly, the Supreme Court has overruled its previous decisions before; there is nothing uncommon about this but as Winkler comments “the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old”. He also underscores the fact that this Court “has been uniquely willing to do so by sharply divided 5-4 majorities”. This divide does give the impression that cases are decided using more ideological reasoning than legal reasoning.

These 5-to-4 decisions on delicate and important legal issues are beginning to take their toll on the popularity of the Supreme Court. In a public opinion survey held in April of this year, the Court received very low ratings with only 52% of the people questioned having a favorable view[52] down from 58% in 2010. This low opinion for a Court that has been generally respected crosses party lines be they Republicans, Democrats or independents.

The ACA decision, all 67 fine-printed pages (including concurring, dissenting opinions and footnotes) is just another example.

Roberts rightly announces that the Supreme Court’s role in this case is “again (to) determine whether the Constitution grants Congress power it now asserts, but which many States and individuals believe it does not possess”. He adds: “Resolving this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries”.

He also, as we have seen, makes such statements as one must “not undermine the status of the States as independent sovereigns in our federal system”. He fears that if this were the case the “two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer”. However, he neglects to add that the so-called independence and sovereignty of the States are and have been limited by the Supreme Court for years. They are certainly limited by the Constitution itself.

It may be time for us all to reread Martin v. Hunter’s Lessee,[53] one of the most important decisions ever handed down concerning federalism in the United States and certainly the most important written by Justice Joseph Story[54] in his thirty-four years on the Court. The case concerned the right of a federal court to review a state court decision. Virginia argued that if a case began in a state court the Federal Supreme Court had no right to review it even when a federal issue was involved. Virginia supported this position by using what is referred to as the “compact theory”, that the States and the Federal Government have a compact and that they are both equally sovereign. This theory is unequivocally rejected by the Court. Story underscores the fact that the Constitution was not “ordained and established” by the States but by the people which means that the people had the authority to grant the Federal Government “all the powers which they deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority”. Story then avers that both the independence and the sovereignty of the States are not equal to those of the Federal Government. Story leaves no doubt that the Federal Constitution was designed to “operate upon the states”:

“It has been argued that such an appellate jurisdiction over state courts is inconsistent with the genius [14 U.S. 304, 343] of our governments, and the spirit of the constitution. That the latter was never designed to act upon state sovereignties, but only upon the people, and that if the power exists, it will materially impair the sovereignty of the states, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to which we do not yield our assent.

It is a mistake that the constitution was not designed to operate upon states, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list of disabilities and prohibitions imposed upon the states. Surely, when such essential portions of state sovereignty are taken away, or prohibited to be exercised, it cannot be correctly asserted that the constitution does not act upon the states. The language of the constitution is also imperative upon the states as to the performance of many duties. It is imperative upon the state legislatures to make laws prescribing the time, places, and manner of holding elections for senators and representatives, and for electors of president and vice-president. And in these, as well as some other cases, congress have a right to revise, amend, or supercede the laws which may be passed by state legislatures. When, therefore, the states are stripped of some of the highest attributes of sovereignty, and the same are given to the United States; when the legislatures of the states are, in some [14 U.S. 304, 344] respects, under the control of congress, and in every case are, under the constitution, bound by the paramount authority of the United States; it is certainly difficult to support the argument that the appellate power over the decisions of state courts is contrary to the genius of our institutions. The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the states, and if they are found to be contrary to the constitution, may declare them to be of no legal validity. Surely the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power.

Nor can such a right be deemed to impair the independence of state judges. It is assuming the very ground in controversy to assert that they possess an absolute independence of the United States. In respect to the powers granted to the United States, they are not independent; they are expressly bound to obedience by the letter of the constitution; and if they should unintentionally transcend their authority, or misconstrue the constitution, there is no more reason for giving their judgments an absolute and irresistible force, than for giving it to the acts of the other co-ordinate departments of state sovereignty.”

As Chief Justice John Marshall stated in McCulloch v. Maryland: “(…) the question respecting the extent of the powers actually granted (to the Federal Government), is perpetually arising, and will probably continue to arise, as long as our system shall exist”. Many conservatives will try to limit these powers and many liberals will fight for enlarging them. The Supreme Court has begun its new session. Some of the cases it will decide on concern such important social issues as same-sex marriage, affirmative action in higher education and the Voting Rights Act of 1965 which inter alia requires the Federal Government to review modification in election proceedings in States that had a history of discrimination. Many are wondering if the Chief Justice will shift to a center position as they feel this is what happened in the ACA case. It is impossible to predict this or not. However, a close reading of the ACA case does not lend itself to believing that Roberts has in any way become a “liberal”. This decision limits the Commerce Clause and seems to stress the importance of the independence and sovereignty of the States more than the Supreme Court has done in a rather long time.

[1] The Supreme Court is considered to have 4 judges that are more or less liberal: Justices Ruth Bader Ginsburg, Stephen G. Breyer (both nominated by President Clinton), Sonia Sotomayor and Elena Kagan (both nominated by President Obama). Four are esteemed to be conservative: Justices Antonin Scalia (President Reagan), Clarence Thomas (President H.W. Bush), Samuel Anthony Alito (President George W. Bush) and John G. Roberts Jr. (Chief Justice, nominated also by President George W. Bush). Justice Anthony M. Kennedy (President Reagan) is usually the ‘swing’ voter, often tilting the scale in controversial cases that consistently end in a 5 to 4 vote. However, this time it was not Kennedy who gave the “winning” vote to the liberals, since he voted against the ACA. It was Chief Justice Roberts himself who cast his vote in favor of the Act.

[2] 124 Stat. 119.

[3] In her concurring in part and dissenting in part opinion.

[4] See Congressional Budget Office, CBO’s 2011 Long-Term Budget Outlook 37 (June 2011).

[5] See Dept. Of Commerce, Census Bureau, C. DeNavas-Walt, B. Protor, & J. Smith, Income, Proverty, and Health Insurance Coverage in the United States : 2009, p. 23, Table 8 (Sept. 2010).

Hidden Health Tax : Americans Pay a Premium 2 (2009), available at http://www.familiesusa.org.

[7] 42 U.S.C. §18091(2)(F)(2006 ed., Supp. IV).

[8] Many legal issues were discussed in the decision, this article will not be treating them all.

[9] For details See (http:/dpc.senate.gov./healthreformbill/healthbill52.pdf).

[10] The U.S. Federal Poverty Level can be found at the U.S. Department of Health & Human Services (ASPE.hhs.gov).

[11] (http:/dpc.senate.gov./healthreformbill/healthbill52.pdf).

[12] Tenth Amendment of the Federal Constitution.

[13] 22 U.S. (9 Wheat) 1 (1824).

[14] 4 Wheaton 316 (1819).

[15] Article VI cl. 2 of the Constitution proclaims that : “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of and State to the Contrary notwithstanding”. This is referred to as the Supremacy Clause.

[16] Many of the sections concerning the historical interpretations of the different powers are largely inspired by my book “Common Law : Introduction to the English and American Legal Systems”, Dalloz, 2004.

[17] 301 U.S. 1 (1937).

[18] The National Industrial Recovery Act.

[19] Justice Holmes dissenting in Baldwin v. Missouri, 281 U.S. 586, 595 (1930) ; quoted by Bernard Schwartz in A History of the Supreme Court, Oxford University Press, 1993, p. 228.

[20] The swing voter at the time was Justice Owen Roberts.

[21] The number 9 that has been in practice since 1869 although seems to be written in stone, has no basis in the Constitution. There is nowhere in the text that sets the number of members of the Supreme Court and this number has changed with time.

[22] The Bill was eventually stripped of its provision to increase the number of Supreme Court Justices.

[23] 317 U.S. 111 (1942).

[24] 26 April, 1995, 514 U.S. 549.

[25] This decision has been confirmed in more recent cases. See for example United States v. Morrison (2000).

This decision is also historically interesting since it was handed down just a few days after the April 19 bombing of the Alfred P. Murrah Federal Building in Oklahoma City where 168 persons were killed and several injured by home-grown terrorists, Timothy Mc Veigh and Terry Nichols. Mc Veigh was particularly shocked by the Waco Texas stand-off between agents of the U.S. Bureau of Alcohol, Tobacco, and Firearms and members of the Branch Davidians, a religious cult. The agents, trying to enforce a warrant to search the Davidian compound for illegal weapons, finally charged the compound. Four agents and 6 Branch Davidians were killed. This shocked Mc Veigh terribly. He was noted for his bumber stickers which read “Fear the Government that Fears your guns. (See: (http://law2.umkc.edu/faculty/projects/ftrials/mcveigh/mcveighaccount.html).

Both the Clinton Administration and Republican congressional leaders felt that home-grown terrorists should be fought by the Government.

[27] 17 U.S. (4 Wheat, 316) (1819).

[28] This was the case for the Articles of Confederation.

[29] See e.g. Finkelstein, Trogdon, Cohen, & Dietz, Annual Medical Spending Attributable to Obesity : Payer and Service-Specific Estimates, 28 Health Affairs w822 (2009).

[30] States have a general police power—if that power extends to forcing drivers to be insured is perhaps another question. Our case is interested in only what the Federal Government can or cannot do.

[31] Massachusetts requires residents to obtain insurance reducing the number of uninsured to less than 2% and cut the amount of uncompensated care by a third. See Brief for Commonwealth of Massachusetts as Amicus Curiae in N° 11-398.

[32] Citing Helvering v. Davis, 301 U.S. 619, 614 (1937).

[33] “Out-of-state residents continue to seek and receive millions of dollars in uncompensated care in Massachusetts hospitals, limiting the State’s efforts to improve its health care system through the elimination of uncompensated care”. See Brief for Commonwealth of Massachusetts as Amicus Curiae in N° 11-398, p. 4. Quoted by Ginsburg.

[34] The Supreme Court upheld the authority of Congress to regulate marijuana grown for personal use. 545 U.S..

[35] James Madison, in The Federalist Papers, N° 45.

[36] See for example Sonzinsky v. United States, 300 U.S. 506 (1937).

[37] Crowell v. Benson, 285 U.S. 22, 62 (1932).

[38] Citing Hooper v. California, 155 U.S. 648, 657 (1895).

[39] 26 U.S. C. §7421(a).

[40] Art. I, § 8, cl. 1.

[41] Citing College Savings Bank, 527 U.S., at 686.

[42] Citing Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981).

[43] 483 U.S. 203 (1987).

[44] South Dakota v. Dole at 211 citing Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937).

[45] Several States have said they would not comply with the expansion.

[46] It is not that the Supreme Court has not given itself the power to second guess Congress in deciding if a federal law is constitutional or not. But generally speaking more deference was shown to this elected body when the Commerce Clause was in question.

[47] “The Roberts Court is Born” ACSblog, June 28, 2012.

[48] Jan. 21, 2010.

[49] Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC.

[50] District of Columbia v. Heller. Both these decisions have had in my opinion dangerous consequences.

[51] Some courts are attempting to limit the interpretation of this decision.

[52] Pew Research Center of the People and the Press.

[53] 14 U.S. (1 Wheat, 304) (1816).

[54] Chief Justice John Marshall, who recused himself from the case, seemed still to have played an important role in deciding it.

Do Presidential Debates Really Matter?

2012-10-18T16:00:05Z

By Douglas Yates, Ph.D.
Professor at the American Graduate School in Paris, Member of ��˾��Ƶ's Academic Committee

After the first US presidential debate which, according to most observers – including even Obama-supporters – had been won by Mitt Romney, there arose an impression that the president might get trounced again by his Republican opponent. But the second presidential debate went better – for Barack Obama – than the first. A small margin of respondents to the instant CNN opinion poll suggested that viewers found the incumbent Democratic president more convincing than his Republican challenger. The Obama camp may be pleased, but do presidential debates really matter?

In a media environment where Americans are saturated by images of the two contenders, it is hard to believe that either presidential debate really introduced the Nobel-prize-winning incumbent president to anyone. It is equally hard to believe that anyone had not heard about Mitt Romney, at least anyone who has also managed to register to vote. What is really at question here is whether debates offer voters a substantive policy choice upon which they can base their vote at the ballot boxes. Democrats tend to vote for the Democratic candidate, and Republicans tend to vote for the Republican, and Democratic-majority states tend to give all their electoral votes to the Democratic candidate, and Republican-majority states tend to give their electors to the Republican. In the end, only the ‘undecided’ voters are considered to be at stake in this campaign, and it is doubtful that they will become suddenly ‘decided’ because of the substance of these debate.

Perhaps only an old college professor like myself even notices that American presidential debates are not really ‘debates,’ in the formal sense of two adversaries dialectically addressing a single point at issue. Rather they are television spectacles, where two men deliver short, improvised speeches, moderated by television journalist-hosts, and sometimes even inviting the audience to ask questions (like an afternoon talk show). In these non-debates, there are exchanges of invective, ad hominem insults, unwarranted claims, unverified facts, slogan-mongering, immaterial subject matter, anecdotal evidence, hypothetical examples, and many other logical fallacies that would be corrected in a properly regulated debate. Rarely are the two adversaries forced to follow a single line of reason to its logical conclusion. This kind of mud-slinging is hardly the right format for valid, conclusive arguments.

If substance is not the most important part of an American presidential debate, no one doubts that candidate ‘style’ matters. In fact, most viewers asked for their opinion on who they believe had won the debate raised issues of style. In the first debate Obama was criticized as sounding too ‘professorial.’ Romney was congratulated on his ‘aggressive’ attacks on the president. Now it is surely a sign of the steep decline of American politics that the adjective ‘professorial’ has become a pejorative, but it is nevertheless reasonable to expect a successful public speaker to adapt his rhetoric to the level of his audience; and Obama’s handlers have expended considerable time and effort to train him to adopt a common touch. But a more lamentable sign of the times is that aggressiveness is the mode favored by the audience, rather than dispassionate reason, for a debate should really be a forum that favors the latter over the former. Angry voters make poor judges.

Television pundits asked whether or not presidential debates matter unanimously agreed that few American elections since the 1960 Kennedy-Nixon contest have been decided by presidential debates. Yet all of those same pundits seemed to agree, as Steven Colbert joked, that “the debate about whether debates are important” does matter.

Leaving aside the ‘bread and circus’ degeneracy of television politics, that is, ‘the show,’ what information can we look at that does matter?

Most observers agree that this election is about the economy. One thing is certain. Incumbents have done poorly in elections during the world financial crisis. Here in France, for instance, the incumbent president Nicolas Sarkozy was defeated after serving only one term in office. The longest serving prime minister in modern British history, Tony Blair, also lost his office. The governments of Greece, Ireland, Spain, and Italy have also fallen like dominos with the worsening economic climate. But does this necessarily mean that President Obama will lose his bid for re-election because the economy is doing poorly?

When trying to make a prediction about who will win the 2012 presidential elections it is probably better to look at more reliable economic indicators.

One economic indicator, for example, that has been constantly raised during the recent presidential debates is ‘unemployment.’ No American president has been elected with unemployment rates higher than 7.4 percent. But it is also true that a sudden drop in unemployment rates tend to boost incumbent scores. Aside from the problems of interpreting the measurement of unemployment (like whether the government figures of those registered on the official lists should be used) there are also problems of how to interpret the correlation between unemployment and voting. Unemployment is not a perfect predictor, and it can produce contradictory results depending on whether one looks at the percentage of workers in the unemployed, or the direction and rate of change in that statistic. Also what the public thinks these numbers mean is probably more important than what they actually are.

A different indicator that captures this semiotic ‘meaning’ of economic statistics is the consumer confidence index. For economists the CCI is scrutinized because consumption drives the American economy. For political scientists it is important because since its inception in the late 1960s, the CCI has provided a perfect predictor of presidential elections. The average CCI when incumbent presidents win is 95. When they lose, the average is 75. According to the Conference Board who have researched and published this all-powerful indicator, the CCI has risen recently, from 61.3 in August to 70.3 in September. If this number continues to rise, ceteris paribus, Obama may win re-election.

Now, considering that consumer perceptions about the economy are such a good indicator of voting behavior, wouldn’t it be ideal if those mass perceptions were grounded in reality? Wouldn’t it be important for consumers to have an accurate perception? Moreover, would it not be an important function of television debates watched by larger audiences than almost any national political event to concentrate upon these issues? Notwithstanding the shoddy quality of discourse, the low level of information, and disagreement about the facts, and the ideological filters through which all of that is processed by the partisan audiences, it must still be considered an important function of presidential debates for each side to outline its actual policy platform. Unfortunately, in a format where style counts more than substance, it may be the case that the presidential debates mattered less than they should have.

Dispatches from the Undeclared War in the American Southwest

2012-09-18T12:10:12Z

By Dave Feldman,
Candidate to the Master of Arts in International Relations and Diplomacy, American Graduate School in Paris

Posted on September 18th, 2012

I spent last summer far away from Paris, doing advocacy and aid work with migrants on the US/Mexico border. Although immigration reform in the United States has become a hot topic in recent years, the human impact of the current regime has been largely absent from the debate. Draconian immigration laws such as Arizona’s SB1070 and Alabama’s HB56–coupled with the Obama Administration’s aggressive deportation policy and controversial Secure Communities program–ensure that the effects of the inhumane system are felt throughout the entire nation. Nonetheless, the Southwest borderlands remain the front line in what can justifiably be described as a war.

Crossing into the US from Mexico used to be a relatively easy endeavor, but things began to change with the entry into force of the North American Free Trade Agreement (NAFTA) in 1994, which destroyed the livelihoods of—and thus displaced—millions of Mexicans. Correctly anticipating a massive migration northward, the Clinton Administration simultaneously launched the Southwest Border Strategy to stem the influx of undocumented migrants, building fences and beefing up patrolling in urban areas serving as points of entry, such as San Diego/Tijuana and El Paso/Ciudad Juárez. This militarization trend has continued up to the present day, with predator drones flying in the sky and members of the National Guard joining a record 20,000 Border Patrol agents—many of whom are Iraq War veterans themselves—at the border.

The supposed logic behind this policy is to deter people from crossing in urban areas by making it unbearably difficult, but as a result migrants are being funneled into the Sonoran desert, where they must be wary of heavily-armed Border Patrol agents, vigilante groups such as the Minutemen, and Mexican drug trafficking organizations such as Los Zetas, as well as unscrupulous “coyote” smugglers, who charge upwards of $5000 for the trip. They must also contend with the extreme dangers of the desert terrain, including rattlesnakes, black widows, mountain lions, a lack of potable water and–during the summer–temperatures in excess of 100 degrees and flash floods. As a result, hundreds of Mexicans and Central Americans perish in the desert each year.

In order to minimize suffering in these harsh environs, the group No More Deaths maintains a permanent camp on the outskirts of Arivaca, Arizona, which volunteers use as a base for daily hikes and “drops” in the desert, of which I participated in more than half a dozen over four days. Always making sure to have at least one Spanish speaker and one medic in the group, we traveled in groups of four to eight, taking our vehicles as far as they could go on the rough terrain before setting out on foot. Using detailed maps and handheld GPS devices, we hiked along migrant trails to designated drop sites, where we would leave several gallons of water, food and blankets. I was never out hiking for more than six hours at a time, and was fortunate enough to have boots and clothing in good repair, an American passport, and adequate food and water. Migrants, on the other hand, can spend more than a week in the desert with none of these things. Although they often travel at night to minimize detection, the empty jugs that we found along the trail let us know that our work was making an impact—unless we noticed that they had been callously slashed, a sure sign that Border Patrol had discovered them first.

I also spent three weeks in the border town of Nogales, where every day I would walk over to Mexico with other volunteers and provide aid to those who had either been recently deported from the US or were traveling north and making a final stop before attempting to cross. Partnering with local Mexican aid centers, we provided free phone calls and clothing, helped recover personal belongings that had been confiscated, performed basic medical care and simply listened to the stories migrants had to tell. A common theme was abuse suffered at the hands of Border Patrol and Immigration and Customs Enforcement (ICE) agents, such as the denial of food and water; the crowding of hundreds of detainees into a single cell; and various types of physical, verbal, sexual and psychological abuse, much of which amounts to torture. In terms of numbers, Obama has actually taken a harsher stance on deportation than Bush, and although the administration claims to prioritize dangerous criminals and avoid breaking up families, I spoke to many people who had their removal proceedings initiated due to a simple traffic violation, despite having lived in the US for decades and having children in the country. As a result, many parents said they would brave the enormous risks and once again attempt the journey north in order to reunite with their children. Indeed, although the recent downturn in the economy has precipitated a steep drop in border crossings over the past few years, one of the patterns currently being observed is that the same people are now being deported over and over again, precisely because they have such strong ties to the US.

No More Deaths is a non-hierarchical organization, operates around consensus decision-making principles and offers a true volunteer immersion experience. In Tucson, volunteers learn about the history of the border and are given a general overview of the corporate actors profiting from the current “round ‘em up and lock ‘em up” policy, from private prison firms such as the Corrections Corporation of America (CCA) and the Wackenhut buses used to transport detainees, to the role of the American Legislative Exchange Council (ALEC) in drafting model anti-immigrant state legislation. Volunteers can also attend a session of Operation Streamline, a daily proceeding in which seventy shackled detainees are brought before a federal judge and charged en masse with illegal entry or reentry in what amounts to a mockery of a supposedly fair judicial system. No More Deaths also engages in advocacy work, such as calling ICE officials to halt the deportations of non-violent immigrants who have grown up in the US, and documenting incidents of abuse in reports, such as last year’s A Culture of Cruelty. Representatives from the organization have even met with White House advisors, members of Congress and Customs and Border Protection; we are calling for an investigation by the Department of Justice into the widespread abuse being perpetuated by the Border Patrol and an independent mechanism to oversee the Department of ��˾��Ƶland Security.

I am currently writing my thesis on the militarization of the border, as seen through the lens of neo-Gramscian hegemonic theory. While I believe that a truly just solution necessitates a reimagining of the current nation-state and global capitalist economic system, more practical steps could be taken to minimize the suffering on the US/Mexico border and in immigrant communities around the United States. These include repealing NAFTA and CAFTA; ending Obama’s aggressive deportation policy and the militarization of the border; citizenship for undocumented people residing in the US; and the abolition of private prisons, which aside from promoting incarceration are poorly regulated and thus hotspots of abuse. Furthermore, we must personally reject the corporate media’s “otherization” and dehumanization of immigrants, and refuse to be complicit in this undeclared war.

Diplomacy’s New Mindset: Soft Power, Hard Work

2012-07-24T15:29:43Z

By Wilfried Bolewski, Ph.D.,
former German Ambassador, Professor of International law and Diplomacy at Free University Berlin and Sciences Po Paris, author of Diplomacy and International Law in Globalized Relations

And Ruchi Anand, Ph.D.,
Associate Professor of International Relations at the American Graduate School in Paris, author of Self Defense in International Law and International Environmental Justice: A North-Suoth Dimension

Posted on June 28th, 2012

After the recent financial turmoil in some parts of the world, it seems we are now experiencing an unprecedented type of crisis: A crisis of diplomacy, which in its conventional way is letting us down in the conflict management of Syria, Iran, North Korea and elsewhere.

At first sight, it looks like all these ongoing failures of diplomacy can be partly attributed to the traditional pursuit of national interest and geo-politics. But a real inside change is coming with the melting of geo-political hard power poles and the uprising nodes of soft power of economic, political and social influence. The latter are shaping on a regional basis or as issue-related, public–private transnational networks. They form temporary coalitions with collective problem-solving capabilities, such as the G 20 and BRICS.

Richard Haass, as President of the Council of Foreign Relations, foresaw already in 2008 the “age of nonpolarity”: a multitude of large and medium-size nations moving away from dominance and hegemony but sharing a common dependency on the existing international system for economic welfare and political stability. This perspective, today turned reality, opens a new playing field for diplomacy. In the era of globalization, the unilateral pursuit of state interests has to be harmonized with the protection of collective public values and interests, ranging from environmental concerns to the struggle against terrorism, forging common ground. It is this combination of enlightened global interest which provides moral legitimacy through widespread public acceptance, domestically as well as within the international community. Its ethical dynamics lie in the effective problem-solving capacity and its social purpose.

However, defining collective public values in an international system ridden with inequalities of power (i.e. military, economic, population, geographical size, resources and influence) is not a straightforward task. How can we overcome the impending crisis of diplomacy when the very first step of diplomatic practice, namely problem recognition and problem definition of any crisis depends on who’s gauging the problem and how and whether the problem is even being identified as worth discussing? The status of a state in the international system – i.e. great, middle or small powers and microstates – still determines what diplomacy can achieve. How can diplomacy activate its magic spell to make all these different powers see eye to eye?

Since the aim of diplomacy is the management of complexity and insecurity among states in conditions of political, economic and cultural separateness, we should approach it with a different mindset. As Albert Einstein taught us, you cannot solve problems with the same

mindset that created them. Diplomacy, as the art of convincing without using force has to be practiced on the basis of ethically principled pragmatism and inclusive engagement rather than exclusion or even demonization, inducement instead of precondition. This new mindset of thinking and acting diplomatically involves the understanding and acknowledgement of the “Other”, the legitimacy of their moral universe and their grievances, reciprocal restraint and mutual respect as a consequence of sovereign equality, the search for a sustainable new status quo. Diplomatic engagement can serve to remedy the neglect of underlying causes (disregard, disrespect, ideology) which led to the disconnection and loss of influence. Creative political imagination is needed to rethink some of the congealed bases of national interest. Political decision making in times of increased uncertainties demands also certain risk-competencies and courage.

Due to the failure of the Copenhagen Conference on climate change, critics claim that multilateralism is in crisis. Yet, the final meeting of a handful of different sized states serves

as an example of a new type of functional minilateralism, which consists of bringing to the negotiating table the smallest number of states needed to generate the leading impact on solving an international problem. Not only can the flexibility of the composition of a minilateral form break down gridlocks of multilateral negotiations by thinking in structures outside the traditional system, but it provides the foundation to extend its achievements for a larger scale of states (process from exclusiveness to inclusiveness). While it did not bring the expected positive result yet in Copenhagen, already next time, the dynamics of minilateralism’s magic number might succeed.

We should not be persuaded that we are all locked into an iron cage of international relations in which we have to replay our disturbances and anxieties over and over again. Today, new actors and players on the diplomatic stage have emerged, i.e. non-governmental organizations, corporations, media, civil society, technology, each of which, alone and together, add a new dimension to the prospects of diplomacy. What if we would test the changes – problems and prospects – that these new actors bring, by developing new mindset strategies as shifts of paradigm thinking and acting - recently scrutinized at a Diplomacy Conference of the American Graduate School in Paris entitled the “Roles and Challenges of Diplomacy in the 21^st Century: Inclusion and Exclusion in a Globalized World” - on the so far intractable conflicts in Syria, Iran and North Korea? We might discover that creative diplomacy as thinking outside the box matters more than ever, since it is not about perfection, but accommodation. It is time to start rethinking diplomacy and to break the power of habit.

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