Constitutional Questions

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Expedited Removal of Aliens: Legal Framework

The federal government has broad authority over the admission of non-U.S. nationals (aliens) seeking to enter the United States. The Supreme Court has repeatedly held that the government may exclude such aliens without affording them the due process protections that traditionally apply to persons physically present in the United States. Instead, aliens seeking entry are entitled only to those procedural protections that Congress has expressly authorized. Consistent with this broad authority, Congress established an expedited removal process for certain aliens who have arrived in the United...

NAFTA and the Preliminary U.S.-Mexico Agreement

Overview

On August 31, 2018, President Trump notified Congress of his intention to “enter into a trade agreement with Mexico – and with Canada if it is willing.” This notification and an announcement on August 27, 2018, that the United States and Mexico had reached a preliminary agreement in principle—subject to finalization and implementation—served as the culmination of a year of talks among the NAFTA partners. Talks with Canada have not concluded, and it is unclear whether Congress would support an agreement that does not include Canada. The United States and Mexico stated that they...

Supreme Court October Term 2017: A Review of Selected Major Rulings

On October 2, 2017, the Supreme Court began one of the most notable terms in recent memory. The latest term of the Court was the first full term for Justice Neil Gorsuch, who succeeded Justice Antonin Scalia following his death in February 2016. The October Term 2017 was also the last term for Justice Anthony Kennedy, who retired in July 2018. With nine Justices on the Court for the first time at the beginning of a term since October 2015, this past term witnessed the High Court issuing fewer unanimous opinions and more rulings that were closely divided relative to previous terms.

The...

The “Flores Settlement” and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions

Reports of alien minors being separated from their parents at the U.S. border have raised questions about the Department of Homeland Security’s (DHS’s) authority to detain alien families together pending the aliens’ removal proceedings, which may include consideration of claims for asylum and other forms of relief from removal.

The Immigration and Nationality Act (INA) authorizes—and in some case requires—DHS to detain aliens pending removal proceedings. However, neither the INA nor other federal laws specifically address when or whether alien family members must be detained together....

Section 232 Investigations: Overview and Issues for Congress

Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. §1862) provides the President with the ability to impose restrictions on certain imports based on an affirmative determination by the Department of Commerce (Commerce) that the product under investigation “is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.” Section 232 actions are of interest to Congress because they are a delegation of Congress’s constitutional authority “to regulate Commerce with foreign Nations.” They also have important...

Questioning Judicial Nominees: Legal Limitations and Practice

The U.S. Constitution vests the Senate with the role of providing “advice” and affording or withholding “consent” when a President nominates a candidate to be an Article III judge—that is, a federal judge entitled to life tenure, such as a Supreme Court Justice. To carry out this “advice and consent” role, the Senate typically holds a hearing at which Members question the nominee. After conducting this hearing, the Senate generally either “consents” to the nomination by voting to confirm the nominee or instead rejects the nominee.

Notably, many prior judicial nominees have refrained from...

Democratic Republic of Congo: Background and U.S. Relations

The United States and other donors have focused substantial resources on stabilizing the Democratic Republic of Congo (DRC) since the early 2000s, when “Africa’s World War”—a conflict in DRC that drew in multiple neighboring countries and reportedly caused millions of deaths—drew to a close. Smaller-scale insurgencies have nonetheless persisted in DRC’s densely inhabited, mineral-rich eastern provinces, causing regional instability and a long-running humanitarian crisis. In recent years, political uncertainty at the national level has sparked new unrest. Elections due in 2016 have been...

Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court

On July 9, 2018, President Donald J. Trump announced the nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill retiring Justice Anthony M. Kennedy’s seat on the Supreme Court of the United States. Nominated to the D.C. Circuit by President George W. Bush, Judge Kavanaugh has served on that court for more than twelve years. In his role as a Circuit Judge, the nominee has authored roughly three hundred opinions (including majority opinions, concurrences, and dissents) and adjudicated numerous high-profile cases...

Escalating Tariffs: Timeline and Potential Impact

Concerns over the U.S. trade deficit and trading partner trade practices have been a focus of the Trump Administration. Citing these concerns, the President has imposed tariffs under three U.S. laws that allow the Administration to impose trade restrictions based on certain criteria unilaterally: (1) Section 201 (Table 1) on U.S. imports of washing machines and solar products; (2) Section 232 (Table 2) on U.S. imports of steel and aluminum, and potentially autos and uranium, and (3) Section 301 (Table 3) on U.S. imports from China. In 2017, U.S. imports of goods subject to the additional...

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. To receive appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Although not mentioned in the Constitution, an important role is played midway in the process (after the President selects, but before the Senate considers) by the Senate Judiciary Committee. Specifically, the...

Unfunded Mandates Reform Act: History, Impact, and Issues

The Unfunded Mandates Reform Act of 1995 (UMRA) culminated years of effort by state and local government officials and business interests to control, if not eliminate, the imposition of unfunded intergovernmental and private-sector federal mandates. Advocates argued the statute was needed to forestall federal legislation and regulations that imposed obligations on state and local governments or businesses that resulted in higher costs and inefficiencies. Opponents argued that federal mandates may be necessary to achieve national objectives in areas where voluntary action by state and local...

Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein

Article III of the Constitution establishes the judicial branch of the federal government. Notably, it empowers federal courts to hear “cases” and “controversies.” The Constitution further creates a federal judiciary with significant independence, providing federal judges with life tenure and prohibiting diminutions of judges’ salaries. But the Framers also granted Congress the power to regulate the federal courts in numerous ways. For instance, Article III authorizes Congress to determine what classes of “cases” and “controversies” inferior courts have jurisdiction to review....

Bahrain: Reform, Security, and U.S. Policy

An uprising against Bahrain’s Al Khalifa ruling family that began on February 14, 2011, has diminished in intensity, but punishments of oppositionists and periodic demonstrations continue. The mostly Shiite opposition to the Sunni-minority-led regime has not achieved its goal of establishing a constitutional monarchy, but the unrest has compelled the ruling family to undertake at least some modest reforms. The mainstream opposition uses peaceful forms of dissent, but small factions, reportedly backed by Iran, have stockpiled increasingly sophisticated weaponry and have claimed...

The World Trade Organization (WTO): U.S. Participation at Risk?

Trump Administration Approach to the WTO

In a break from past administrations, the Trump Administration has expressed doubt over the value of the World Trade Organization (WTO) to the U.S. economy. The United States was a key architect of the WTO—the 164-member international organization established in 1995 that oversees global trade rules and trade liberalization negotiations, and resolves trade disputes. In late June, media reports suggested that President Trump was considering withdrawing the United States from the WTO; U.S. officials have since said talks of withdrawal are “premature”...

NAFTA Renegotiation and Modernization

The 115th Congress faces policy issues related to the Trump Administration’s renegotiation and modernization of the North American Free Trade Agreement (NAFTA). NAFTA negotiations were first launched in 1992 under President George H. W. Bush and continued under President Bill Clinton. President Clinton signed the agreement into law on December 8 1993 (P.L. 103-182), and NAFTA entered into force on January 1, 1994. It is particularly significant because it was the most comprehensive free trade agreement (FTA) negotiated at the time, contained several groundbreaking provisions, and was the...

Supermajority Votes in the House

The principle of majority rule dominates the work of the House of Representatives. This means, in brief, that most questions are decided by vote of a simple majority: one-half-plus-one of the Members voting, assuming the presence of a quorum. For instance, if all 435 lawmakers vote, the winning margin is at least 218—one more than half the membership of the House. In cases of a tie vote, House Rule XX, clause 1(c), states that “a question shall be lost.”

Some supermajority votes, however, are explicitly specified in the Constitution. The House may also define supermajority votes. This...

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

The proposed Equal Rights Amendment to the U.S. Constitution (ERA), which declares that “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex,” was approved by Congress for ratification by the states in 1972. The proposal included a seven-year deadline for ratification. Between 1972 and 1977, 35 state legislatures, of the 38 required by the Constitution, voted to ratify the ERA. Despite a congressional extension of the deadline from 1979 to 1982, no additional states approved the amendment during the extended period, at which...

Public Disclosure of Corporate Tax Returns

Federal corporate tax returns are confidential and protected from public disclosure under section 6103 of the Internal Revenue Code (IRC), as enacted by the Tax Reform Act of 1976 (P.L. 94-455). Before 1976, corporate tax returns where classified as part of the “public record” to varying degrees. Since 1976, there have been occasional calls for the privacy veil to be lifted in response to aggressive tax planning and evasion. This Insight examines several issues surrounding public disclosure of corporate tax returns; however, the discussion below does not address important legal and...

Tit-for-Tat Tariff Measures and U.S. Trade Policy

U.S. trade policy under President Trump has involved greater use of trade laws to address imports that threaten to impair U.S. national security (Section 232), and trade practices that may violate trade agreements or are “unjustifiable” or “unreasonable” (Section 301). Congress has held several hearings on controversial presidential actions under these laws, raising questions about their economic and broader policy implications.

As a result of Section 232 investigations launched by the Administration, the United States has unilaterally applied new tariffs on steel (25%), aluminum (10%),...

Justice Anthony Kennedy: His Jurisprudence and the Future of the Court

On June 27, 2018, Justice Anthony M. Kennedy announced that, effective July 31, 2018, he would retire from active service as an Associate Justice on the Supreme Court of the United States. His decisive role on the Court, particularly since the Roberts Court era began in 2005, cannot be overstated. The Roberts Court era has witnessed the Court issue a number of landmark rulings, many of which have involved matters where the sitting Justices were closely divided. Justice Kennedy typically voted with the majority of the Court in such cases. Since the October 2005 term that marked the...

President’s Selection of a Nominee for a Supreme Court Vacancy: Overview

On June 27, 2018, Justice Anthony Kennedy, after serving on the Supreme Court as an Associate Justice since 1988, announced his intention to retire from the U.S. Supreme Court. Justice Kennedy indicated that his retirement would be effective July 31, 2018. Subsequently, on July 9, 2018, President Donald Trump announced his intention to nominate Judge Brett Kavanaugh to fill the impending Kennedy vacancy.

This Insight provides an overview of several issues related to the selection of a nominee by a President for a vacancy on the Court. For additional information and analyses on these and...

Supreme Court Appointment Process: President’s Selection of a Nominee

The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or never at all, during a particular President’s years in office. Under the Constitution, Justices on the Supreme Court receive what can amount to lifetime appointments which, by constitutional design, helps ensure the Court’s...

The Purple Heart: Background and Issues for Congress

The Purple Heart is one of the oldest and most recognized American military medals, awarded to servicemembers who were killed or wounded by enemy action. The conflicts of the last decade have greatly increased the number of Purple Hearts awarded to servicemembers.

Events over the past few years have spurred debate on the eligibility criteria for the Purple Heart. Shootings on U.S. soil and medical conditions such as traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) have prompted changes to the eligibility requirements for the Purple Heart. Some critics believe that...

The Federal “Crime of Violence” Definition: Overview and Judicial Developments

In an effort to deter violent crime, and to limit the broad discretion accorded to federal judges with respect to prison sentencing, Congress in 1984 passed legislation that revised the federal criminal code. The Comprehensive Crime Control Act of 1984 (CCCA) aimed to substantially reform and improve federal criminal laws, and “to restore a proper balance between the forces of law and the forces of lawlessness.” To that end, the CCCA adopted new bail procedures, imposed mandatory minimum sentences for certain criminal offenses, increased the penalties for drug offenses and violent crimes,...

The Alien Tort Statute (ATS): A Primer

Passed by the First Congress as part of the Judiciary Act of 1789, the Alien Tort Statute (ATS) has been described as a provision “unlike any other in American law” and “unknown to any other legal system in the world.” In its current form, the complete text of the statute provides the following: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” While just one sentence, the ATS has been the subject of intense interest in recent decades, as it evolved from a...

Recent Legislative and Regulatory Developments in States’ Ability to Drug Test Unemployment Compensation Applicants and Beneficiaries

Federal law permits states to restrict an individual’s Unemployment Compensation (UC) benefit eligibility for certain circumstances related to the “fact or cause” of unemployment; this includes situations in which an individual was fired for drug use or refusing to take a drug test. Most states have specific disqualifications for drug-related job loss (see Table 5-8 in the hyperlink), including reporting to work under the influence of drugs/alcohol; violating the employer’s drug policy, including refusing to undergo drug or alcohol testing; or having tested positive for drugs or alcohol...

U.S. Department of State Personnel: Background and Selected Issues for Congress

Current Context and Recent Developments

Shortly after his confirmation as Secretary of State in April 2018, Secretary Mike Pompeo lifted the hiring freeze that former Secretary Rex Tillerson left in place for over a year. Guidance issued after Secretary Pompeo’s action indicates that the department intends to increase Foreign and Civil Service personnel levels in a manner consistent with the language and funding Congress included in the Consolidated Appropriations Act, 2018 (P.L. 115-141). The Trump Administration has taken additional actions affecting Department of State personnel,...

Liberia: Political Transition and U.S. Relations

Liberia, a small coastal West African country on the Gulf of Guinea, has made substantial development gains since the end of the second of two civil wars (1989-1997 and 1999-2003). In late 2017, Liberia held its third post-war general election. George Weah, a former soccer star, won the presidential election in a runoff and was inaugurated on January 22, 2018. Weah succeeded two-term president Ellen Johnson Sirleaf, who was constitutionally prohibited from seeking a third term, in Liberia’s first electoral transfer of state executive power since 1944.

Weah’s policy agenda focuses on four...

Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement

The legal procedure through which the United States withdraws from treaties and other international agreements has been the subject of long-standing debate between the legislative and executive branches. Recently, questions concerning the role of Congress in the withdrawal process have arisen in response to President Donald J. Trump’s actions related to certain high-profile international commitments. This report outlines the legal framework for withdrawal from international agreements under domestic and international law, and it applies that framework to two pacts that may be of...

Cuba After the Castros

As expected, Cuban President Raúl Castro stepped down from power on April 19, 2018, and the communist government’s 605-member National Assembly of People’s Power selected First Vice President Miguel Díaz-Canel Bermúdez as president of the Council of State. Pursuant to Cuba’s Constitution (Article 74), the president of the Council of State is also Cuba’s head of state and government. Castro, currently 86 years old, just finished his second five-year term as president. He will remain in his position as first secretary of the Cuban Communist Party (PCC), which could give him continued...

Libya: Transition and U.S. Policy

Libya’s political transition has been disrupted by armed non-state groups and threatened by the indecision and infighting of interim leaders. After an armed uprising ended the 40-plus-year rule of Muammar al Qadhafi in 2011, interim authorities proved unable to form a stable government, address pressing security issues, reshape the country’s public finances, or create a viable framework for post-conflict justice and reconciliation. Qadhafi left state institutions weak and deprived Libyans of experience in self-government, compounding stabilization challenges.

Elections for legislative...

Abortion At or Over 20 Weeks’ Gestation: Frequently Asked Questions

Legislation at the federal and state levels seeking to limit or ban abortions in midpregnancy has focused attention on the procedure and the relatively small number of women who choose to undergo such an abortion. According to the Guttmacher Institute, about 926,200 abortions were performed in 2014; 1.3% of abortions were performed at or over 21 weeks’ gestation in 2013. A 2018 National Academies of Sciences, Engineering, and Medicine study found that most women who have abortions are unmarried (86%), are poor or low-income (75%), are under age 30 (72%), and are women of color...

Cambodia: Background and U.S. Relations

Following a gradual improvement of bilateral ties since the mid-2000s, U.S. relations with the Kingdom of Cambodia have become strained in recent years in light of Prime Minister Hun Sen’s suppression of political opponents and growing embrace of China. The Trump Administration and Congress have imposed and considered further sanctions in order to pressure Hun Sen into restoring democracy and conducting free and fair national elections in 2018.

While the U.S. government has criticized Hun Sen’s backtracking on democracy, it also has sought to remain engaged with Cambodia. During the past...

Special Counsels, Independent Counsels, and Special Prosecutors: Legal Authority and Limitations on Independent Executive Investigations

The Constitution vests Congress with the legislative power, which includes authority to establish federal agencies and conduct oversight of those entities. Criminal investigations and prosecutions, however, are generally regarded as core executive functions assigned to the executive branch. Because of the potential conflicts of interest that may arise when the executive branch investigates itself, there have often been calls for criminal investigations by prosecutors with independence from the executive branch. In response, Congress and the U.S. Department of Justice (DOJ) have used both...

U.S. Senate Vacancies: Contemporary Developments and Perspectives

United States Senators serve a term of six years. Vacancies occur when an incumbent Senator leaves office prematurely for any reason; they may be caused by death or resignation of the incumbent, by expulsion or declination (refusal to serve), or by refusal of the Senate to seat a Senator-elect or -designate.

Aside from the death or resignation of individual Senators, Senate vacancies often occur in connection with a change in presidential administrations, if an incumbent Senator is elected to executive office, or if a newly elected or reelected President nominates an incumbent Senator or...

Softwood Lumber Imports from Canada: Current Issues

Softwood lumber imports from Canada have been a persistent concern for Congress for decades. Canada is an important trading partner for the United States, but lumber production is a significant industry in many states. U.S. lumber producers claim they are at an unfair competitive disadvantage in the domestic market against Canadian lumber producers because of Canada’s timber pricing policies. This has resulted in five major disputes (so-called lumber wars) between the United States and Canada since the 1980s.

The current dispute (Lumber V) started when the 2006 Softwood Lumber Agreement...

Balanced Budget Amendments

A balanced budget amendment (BBA) proposes to amend the U.S. Constitution to require that “outlays shall not exceed revenues.” Constitutional amendments require a two-thirds vote of approval in both houses of Congress as well as ratification by three-fourths of the states.

Common Components of BBAs

Proposed BBAs have historically included additional provisions that may be as contentious as the requirement that outlays not exceed revenues. Such provisions are summarized below.

Supermajority vote threshold for permitting outlays to exceed receipts. These provisions typically require a...

Lame Duck Sessions of Congress, 1935-2016 (74th-114th Congresses)

A “lame duck” session of Congress occurs whenever one Congress meets after its successor is elected but before the end of its own constitutional term. Under present conditions, any meeting of Congress between election day in November and the following January 3 is a lame duck session. Prior to 1933, when the Twentieth Amendment changed the dates of the congressional term, the last regular session of Congress was always a lame duck session. Today, however, the expression is primarily used for any portion of a regular session that falls after an election.

Congress has held 21 lame duck...

Statutory Interpretation: Theories, Tools, and Trends

In the tripartite structure of the U.S. federal government, it is the job of courts to say what the law is, as Chief Justice John Marshall announced in 1803. When courts render decisions on the meaning of statutes, the prevailing view is that a judge’s task is not to make the law, but rather to interpret the law made by Congress. The two main theories of statutory interpretation—purposivism and textualism—disagree about how judges can best adhere to this ideal of legislative supremacy. The problem is especially acute in instances where it is unlikely that Congress anticipated and...

Eight Mechanisms to Enact Procedural Change in the U.S. Senate

Recently, individuals both inside and outside of Congress have called for an examination of the U.S. Senate’s procedural rules with an eye toward changing them. This Insight highlights eight parliamentary mechanisms that might be used to implement procedural change in the Senate and links to additional reading material on the subject.

The work of the U.S. Senate is regulated not just by its 44 standing rules but by multiple, sometimes overlapping, procedural authorities. At any given time, unanimous consent agreements, standing orders, statute, precedent, and provisions of the U.S....

Modes of Constitutional Interpretation

When exercising its power to review the constitutionality of governmental action, the Supreme Court has relied on certain “methods” or “modes” of interpretation—that is, ways of figuring out a particular meaning of a provision within the Constitution. This report broadly describes the most common modes of constitutional interpretation; discusses examples of Supreme Court decisions that demonstrate the application of these methods; and provides a general overview of the various arguments in support of, and in opposition to, the use of such methods of constitutional...

Northern Ireland, Brexit, and the Irish Border

As the 20th anniversary of the April 1998 peace accord for Northern Ireland (known as the Good Friday Agreement or the Belfast Agreement) approaches, concerns are increasing about how the expected exit of the United Kingdom (UK) from the European Union (EU)—or “Brexit”—might affect Northern Ireland. The future of the border between Northern Ireland and the Republic of Ireland has become a central issue in the UK’s withdrawal negotiations with the EU. Once the UK ceases to be a member of the EU—likely in March 2019—Northern Ireland will be the only part of the UK to share a land border with...

Unemployment Insurance: Consequences of Changes in State Unemployment Compensation Laws

This report analyzes recent changes to state Unemployment Compensation (UC) programs. Two categories of UC state law issues are considered: (1) changes in the duration of state UC unemployment benefits, and (2) changes in the UC weekly benefit amount.

In recent years, some states have enacted legislation to decrease the maximum number of weeks of regular state UC benefits. Until 2011, all states paid at least up to 26 weeks of UC benefits to eligible, unemployed individuals. In 2011, however, six states passed legislation to decrease their maximum UC benefit durations: Arkansas, Florida,...

Congressional Membership and Appointment Authority to Advisory Commissions, Boards, and Groups

Over the past several decades, Congress, by statute, has established a wide array of commissions, boards, and advisory bodies to provide it with assistance in meeting various legislative, investigative, and administrative responsibilities. Some of these entities are temporary and created to serve specific functions, such as studying a discrete policy area or performing one-time tasks. Others are permanent, serving an ongoing purpose, such as overseeing an institution or performing a regular administrative function.

The majority of these congressional bodies provide that Members of...

Defense Spending Under an Interim Continuing Resolution: In Brief

This report provides a basic overview of interim continuing resolutions (CRs) and highlights some specific issues pertaining to operations of the Department of Defense (DOD) under a CR.

As with regular appropriations bills, Congress can draft a CR to provide funding in many different ways. Under current practice, a CR is an appropriation that provides either interim or full-year funding by referencing a set of established funding levels for the projects and activities that it funds (or covers). Such funding may be provided for a period of days, weeks, or months and may be extended through...

The Marshall Plan: Design, Accomplishments, and Significance

The European Recovery Program (ERP), more commonly known as the Marshall Plan (the Plan), was a program of U.S. assistance to Europe during the period 1948-1951. The Marshall Plan—launched in a speech delivered by Secretary of State George Marshall on June 5, 1947—is considered by many to have been the most effective ever of U.S. foreign aid programs. An effort to prevent the economic deterioration of postwar Europe, expansion of communism, and stagnation of world trade, the Plan sought to stimulate European production, promote adoption of policies leading to stable economies, and take...

Mandatory Minimum Sentencing of Federal Drug Offenses in Short

As a general rule, federal judges must impose a minimum term of imprisonment upon defendants convicted of various controlled substance (drug) offenses and drug-related offenses. The severity of those sentences depends primarily upon the nature and amount of the drugs involved, the defendant’s prior criminal record, any resulting injuries or death, and in the case of the related firearms offenses, the manner in which the firearm was used.

The drug offenses reside principally in the Controlled Substances Act or the Controlled Substances Import and Export Act. The drug-related firearms...

Mandatory Minimum Sentencing of Federal Drug Offenses

As a general rule, federal judges must impose a minimum term of imprisonment upon defendants convicted of various controlled substance (drug) offenses and drug-related offenses. The severity of those sentences depends primarily upon the nature and amount of the drugs involved, the defendant’s prior criminal record, any resulting injuries or death, and in the case of the related firearms offenses, the manner in which the firearm was used.

The drug offenses reside principally in the Controlled Substances Act or the Controlled Substances Import and Export Act. The drug-related firearms...

Expulsion of Members of Congress: Legal Authority and Historical Practice

The U.S. Constitution expressly grants each house of Congress the power to discipline its own Members for misconduct, including through expulsion, stating that:

[e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Expulsion is the process by which a house of Congress may remove one of its Members after the Member has been duly elected and seated. The Supreme Court has considered expulsion to be distinct from exclusion, the process by which the House and Senate refuse to seat...

A Balanced Budget Constitutional Amendment: Background and Congressional Options

One of the most persistent political issues facing Congress in recent decades is whether to require that the budget of the United States be in balance. Although a balanced federal budget has long been held as a political ideal, the accumulation of large deficits in recent years has heightened concern that some action to require a balance between revenues and expenditures may be necessary.

The debate over a balanced budget measure actually consists of several interrelated debates. Most prominently, the arguments of proponents have focused on the economy and the possible harm resulting from...

Sponsorship and Cosponsorship of House Bills

A Representative who introduces a bill or resolution in the House is called its sponsor. Several Members together may submit a bill, but only the Member whose name appears first on the bill is considered its sponsor; the others are cosponsors. A bill can have only one sponsor, but there is no limit on the number of cosponsors it may have.

Representatives introduce bills in the House by placing them in the wooden box, or “hopper,” located at the bill clerk’s desk on the chamber floor when the House is in session. The original signature of the sponsor must appear on the measure when it is...

Contested Elections in Honduras

Honduras has descended into political crisis in the aftermath of disputed elections held on November 26, 2017. On election night, with 57% of the vote counted, Salvador Nasralla, a television personality and sports commentator backed by the left-leaning Opposition Alliance Against the Dictatorship, held a five-point lead over incumbent President Juan Orlando Hernández of the conservative National Party (PN). Hernández edged ahead of Nasralla several days later, however, after the country’s Supreme Electoral Tribunal (TSE) belatedly processed the outstanding votes. The Opposition Alliance...

The Foreign Agents Registration Act (FARA): A Legal Overview

In the wake of the 2016 election, concerns have been raised with respect to the legal regime governing foreign influence in domestic politics. The central law concerning the activities of the agents of foreign entities acting in the United States is the Foreign Agents Registration Act (FARA or Act). Enacted in 1938 to promote transparency with respect to foreign influence in the political process, FARA generally requires “agents of foreign principals” undertaking certain activities on behalf of foreign interests to register with and file regular reports with the U.S. Department of Justice...

Haiti’s Political and Economic Conditions: In Brief

Haiti shares the island of Hispaniola with the Dominican Republic; Haiti occupies the western third of the island. Since the fall of the Duvalier dictatorship in 1986, Haiti has struggled to overcome its centuries-long legacy of authoritarianism, extreme poverty, and underdevelopment. Although significant progress has been made in improving governance, democratic institutions remain weak. Poverty remains massive and deep, and economic disparity is wide. In proximity to the United States, and with a chronically unstable political environment and fragile economy, Haiti has been an ongoing...

Understanding the Speech or Debate Clause

The Speech or Debate Clause (Clause) of the U.S. Constitution states that “[F]or any Speech or Debate in either House,” Members of Congress (Members) “shall not be questioned in any other Place.” The Clause serves various purposes: principally to protect the independence and integrity of the legislative branch by protecting against executive or judicial intrusions into the protected legislative sphere, but also to bar judicial or executive processes that may constitute a “distraction” or “disruption” to a Member’s representative or legislative role. Despite the literal text, protected acts...

Post-Heller Second Amendment Jurisprudence

This report examines the scope of the Second Amendment, as interpreted by the federal circuit courts of appeals, after the watershed Supreme Court decisions in District of Columbia v. Heller and McDonald v. City of Chicago. The Second Amendment states that “[a] well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” Before the Supreme Court’s 2008 opinion in Heller, the Second Amendment had received little Supreme Court attention and had been largely interpreted, at least by the lower federal courts,...

Iraq: Background and U.S. Policy

The 115th Congress and the Trump Administration are considering options for U.S. engagement with Iraq as Iraqis look beyond the immediate security challenges posed by their intense three-year battle with the insurgent terrorists of the Islamic State organization (IS, aka ISIL/ISIS). While Iraq’s military victory over Islamic State forces is now virtually complete, Iraq’s underlying political and economic challenges are daunting and cooperation among the forces arrayed to defeat IS extremists has already begun to fray. The future of volunteer Popular Mobilization Forces (PMF) and the terms...

The Article V Convention to Propose Constitutional Amendments: Current Developments

Article V of the U.S. Constitution provides two procedures for amending the nation’s fundamental charter: proposal of amendments by Congress, by a vote of two-thirds of the Members of both houses, and proposal by a convention, generally referred to as an “Article V Convention,” called on the application of the legislatures of two-thirds (34) of the states. Amendments proposed by either method must be ratified by three-fourths (38) of the states in order to become part of the Constitution. This report provides information for Members of Congress and congressional staff on current...

Statute of Limitation in Federal Criminal Cases: A Sketch

A statute of limitations dictates the time period within which a legal proceeding must begin. The purpose of a statute of limitations in a criminal case is to ensure the prompt prosecution of criminal charges and thereby spare the accused of the burden of having to defend against stale charges after memories may have faded or evidence is lost.

There is no statute of limitations for federal crimes punishable by death, nor for certain federal crimes of terrorism, nor for certain federal sex offenses. Prosecution for most other federal crimes must begin within five years of the commitment of...

Statute of Limitation in Federal Criminal Cases: An Overview

A statute of limitations dictates the time period within which a legal proceeding must begin. The purpose of a statute of limitations in a criminal case is to ensure the prompt prosecution of criminal charges and thereby spare the accused of the burden of having to defend against stale charges after memories may have faded or evidence is lost.

There is no statute of limitations for federal crimes punishable by death, nor for certain federal crimes of terrorism, nor for certain federal sex offenses. Prosecution for most other federal crimes must begin within five years of the commitment of...

Clearing the Air on the Debt Limit

The statutory debt limit, currently suspended through December 8, 2017, provides Congress a means of controlling federal borrowing. As the date when that suspension will lapse approaches, discussions about the role of the debt limit among the media, researchers, and Members of Congress promise to become more frequent. In recent discussions, misleading or less than fully accurate claims have, at times, surfaced. This report provides clarifications on five common debt limit contentions.

Some of those points in need of clarification relate to the congressional power of the purse, which stems...

Payments for Affordable Care Act (ACA) Cost-Sharing Reductions

Funding for the cost-sharing reduction (CSR) payments established under the Patient Protection and Affordable Care Act (ACA) has been the subject of hearings about the individual insurance market, numerous press articles, and analyses from actuaries to consultants. Insurers have warned that they may leave the market or raise premiums without a commitment to sustained funding.

On October 13, the Trump Administration filed a notice announcing it would terminate payments for CSRs beginning with the payment that was scheduled for October 18, potentially affecting 2017 and 2018 plan options...

Arms Sales in the Middle East: Trends and Analytical Perspectives for U.S. Policy

This report analyzes state-to-state arms sales in the Middle East with a particular focus on U.S. transfers, as authorized and reviewed by Congress. The information in this report, including sales data, is drawn from a number of official and unofficial open sources.

Arms sales are an important tool that states can use to exercise their influence. The Middle East has long been a key driver of the global trade in weapons, disproportionately so when accounting for population. Some states in this heavily-militarized and contested region are major arms purchasers, empowered by partnerships with...

Electoral College Reform: Contemporary Issues for Congress

The electoral college method of electing the President and Vice President was established in Article II, Section 1 of the Constitution and revised by the Twelfth Amendment. It provides for election of the President and Vice President by electors, commonly referred to as the electoral college. A majority of 270 of the 538 electoral votes is necessary to win. For further information on the modern-day operation of the college system, see CRS Report RL32611, The Electoral College: How It Works in Contemporary Presidential Elections, by Thomas H. Neale.

The electoral college has been the...

Tanzania: Current Issues and U.S. Policy

Tanzania is an East African country comprising a union of Tanganyika, the mainland territory, and the semiautonomous Zanzibar archipelago. The United States has long considered Tanzania a partner in economic development and, increasingly, in regional security efforts. With nearly 54 million people, Tanzania is one of the largest countries in Africa by population and is endowed with substantial natural resource wealth and agricultural potential. Over the past decade, it has experienced robust economic growth based largely on favorably high gold prices and tourism; growth has averaged nearly...

Kurds in Iraq Hold Controversial Referendum on Independence

The question of self-determination for the Kurds of Iraq and neighboring Syria, Turkey, and Iran has remained unresolved since the delineation of national borders in the Middle East in the wake of World War I. U.S. intervention in Iraq since the 1990s has contributed to the emergence and protection of autonomous political institutions in the Kurdistan Region of Iraq (KRI) and the development of the region’s economy and security forces. Today, the Kurdistan Regional Government (KRG) is recognized in Iraq’s constitution and exercises devolved and shared powers. Kurds and other Iraqis differ...

Overview of the Federal Government’s Power to Exclude Aliens

The Supreme Court has determined that inherent principles of sovereignty give Congress “plenary power” to regulate immigration. The core of this power—the part that has proven most impervious to judicial review—is the authority to determine which aliens may enter the country and under what conditions. The Court has determined that the executive branch, by extension, has broad authority to enforce laws concerning alien entry mostly free from judicial oversight. Two principles frame the scope of the political branches’ power to exclude aliens. First, nonresident aliens abroad cannot...

Privatization and the Constitution: Selected Legal Issues

Privatization is a broad term that encompasses various types of public-private arrangements, including contractual relationships with private entities for goods or services and government-funded voucher programs that allow individuals to purchase private goods or services. In other contexts, Congress has empowered private entities or chartered corporations to deliver services previously provided by governmental entities or to advance legislative objectives. Congress has created various corporations, including Amtrak and the Communications Satellite Corporation. More recently, in the 114th...

Patent Law: A Primer and Overview of Emerging Issues

In an increase over prior terms, the Supreme Court of the United States issued six opinions involving patent law during its October 2016 Term. These decisions addressed issues ranging from patent exhaustion, multicomponent products, and biosimilar patents to procedural issues like venue and the statute of limitations for infringement claims. The growing number of Supreme Court opinions involving patent law over the past decade may also speak to the rising importance of intellectual property more broadly; a reported 84% of the S&P 500 Market Value in 2015 is ascribed to intangible assets....

Supreme Court October Term 2017: A Preview of Select Cases

On October 2, 2017, the Supreme Court is to begin its new term. While the Court issued a number of notable decisions during its last full term, Court watchers have largely agreed that, at least compared to recent terms, the Court’s October 2016 term was diminished both with regard to volume and content. With the Court already accepting over 30 cases for its next term, many of which raise deep and difficult questions in various areas of law, the October 2017 Supreme Court term could be considerably different. The next Court term has the potential to be one of the most consequential in...

Chevron Deference: A Primer

When Congress delegates regulatory functions to an administrative agency, that agency’s ability to act is governed by the statutes that authorize it to carry out these delegated tasks. Accordingly, in the course of its work, an agency must interpret these statutory authorizations to determine what it is required to do and to ascertain the limits of its authority. The scope of agencies’ statutory authority is sometimes tested through litigation. When courts review challenges to agency actions, they give special consideration to agencies’ interpretations of the statutes they administer....

The Financial CHOICE Act in the 115th Congress: Selected Policy Issues

The Financial CHOICE Act (FCA; H.R. 10) was introduced on April 26, 2017, by Representative Jeb Hensarling, chairman of the House Committee on Financial Services. It passed the House on June 8, 2017. Selected provisions of H.R. 10 were then added to the appropriations bill passed by the House (H.R. 3354).

H.R. 10, as passed, is a wide-ranging proposal with 12 titles that would alter many parts of the financial regulatory system. Much of the FCA is in response to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act; P.L. 111-203), a broad package of regulatory...

Resolutions Censuring the President: History and Context, 1st-114th Congresses

Censure is a reprimand adopted by one or both chambers of Congress against a Member of Congress, President, federal judge, or government official. Censure against a sitting Member involves a formal process that is sanctioned by the Constitution (Article 1, Section 5). Non-Member censure, however, is not an enforceable action and has no uniform language. Instead, non-Member censure resolutions may use a variety of terms to highlight conduct deemed by the House or Senate to be inappropriate or unauthorized.

Since 1800, the House and Senate have introduced numerous resolutions to censure or...

Congressional Consideration of Resolutions to “Censure” Executive Branch Officials

Over the history of the federal Congress, Members have proposed resolutions to formally express the House or Senate’s censure, disapproval, loss of confidence, or condemnation of the President or other executive branch official or their actions. This Insight summarizes the parliamentary procedures the House and Senate might use to consider a resolution to censure or condemn an executive branch official and provides links to additional reading material on the subject.

Two Types of “Censure” Resolutions

An important distinction should be made between two types of “censure” resolutions: (1)...

Due Process Limits on the Jurisdiction of Courts: Issues for Congress

Businesses that are incorporated in foreign countries and conduct a large portion of their operations outside of the territorial jurisdiction of the United States may nevertheless cause injury to U.S. persons. For example, a foreign company might manufacture in its home country a machine that another company later distributes in the United States, ultimately resulting in an injury to a U.S. consumer. Although foreign companies may engage in actions or omissions that injure U.S. persons, such injured persons may face various procedural challenges in obtaining judicial relief from a foreign...

Military Sexual Assault: A Framework for Congressional Oversight

Article I, Section 8 of the U.S. Constitution gives Congress the power to raise and support armies; provide and maintain a navy and make rules for the governance of those forces. Under this authority, Congress determines military criminal law applicable to members of the Armed Forces. Congress has determined that sexual assault is a criminal act under the Uniform Code of Military Justice (UCMJ). As such, Congress has an interest in overseeing the implementation and enforcement of these laws in order to provide for the health, welfare, and good order of the Armed Forces.

Prevention and...

Recess Appointments Made by President Barack Obama

Under the Constitution, the President and the Senate share the power to make appointments to high-level politically appointed positions in the federal government. The Constitution also empowers the President unilaterally to make a temporary appointment to such a position if it is vacant and the Senate is in recess. Such an appointment, termed a recess appointment, expires at the end of the following session of the Senate. This report identifies recess appointments by President Barack Obama. The report discusses these appointments in the context of recess appointment authorities and...

Paraguay: In Brief

Paraguay is a South American country wedged between Bolivia, Argentina, and Brazil. It is about the size of California but has a population of less than 7 million. The country is known for its rather homogenous culture—a mix of Latin and Guarani influences, with 90% of the population speaking Guarani, a pre-Columbian language, in addition to Spanish. The Paraguayan economy is one of the most agriculturally dependent in the hemisphere and is largely shaped by the country’s production of cattle, soybeans, and other crops. In 2016, Paraguay grew by 4.1%; it is projected to sustain about 4.3%...

The Electoral College: Reform Proposals in the 114th and 115th Congress

American voters elect the President and Vice President of the United States indirectly, through presidential electors chosen by voters in the states—the electoral college. For further information see CRS Report RL32611, The Electoral College: How It Works in Contemporary Presidential Elections. Article II, Section 1 of the U.S. Constitution, as revised by the 12th Amendment in 1804, requires winning candidates for President and Vice President to gain a majority of electoral votes. Since 1804, Presidents who won a majority of electoral votes and at least a plurality of popular votes were...

Budget Actions in 2017

The Constitution grants Congress the power of the purse, but does not dictate how Congress must fulfill this constitutional duty. Congress has, therefore, developed certain types of budgetary legislation, along with rules and practices that govern its content and consideration. This set of budgetary legislation, rules, and practices is often referred to as the congressional budget process.

There is no prescribed congressional budget process that must be strictly followed each year, and Congress does not always consider budgetary measures in a linear or predictable pattern. Such...

Domestic Terrorism: An Overview

The emphasis of counterterrorism policy in the United States since Al Qaeda’s attacks of September 11, 2001 (9/11) has been on jihadist terrorism. However, in the last decade, domestic terrorists—people who commit crimes within the homeland and draw inspiration from U.S.-based extremist ideologies and movements—have killed American citizens and damaged property across the country. Not all of these criminals have been prosecuted under federal terrorism statutes, which does not imply that domestic terrorists are taken any less seriously than other terrorists.

The Department of Justice (DOJ)...

Sifting Domestic Terrorism from Hate Crime and Homegrown Violent Extremism

In light of the violence related to protests in Charlottesville, VA, on August 12, 2017, policymakers may be interested in how the concepts of domestic terrorism, hate crime, and homegrown violent extremism compare with one another. They are fairly distinct ideas that federal law enforcement agencies use to categorize key types of criminals whose illegal activities are at least partly ideologically motivated. Specifically, these terms may be part of public discussion regarding a widely reported incident involving James Alex Fields, who according to witnesses drove his car into a group of...

Executive Branch Reorganization

The federal bureaucracy of the present day is the product of more than two centuries of legislative and administrative actions by successive generations of elected and appointed officials. As such, the diverse organizations and processes of the federal government are a consequence of the influence and decisions of thousands of officials with differing viewpoints about the role of government and diverse policy preferences. The federal bureaucracy’s organizational arrangements are also reflective of ongoing competition between Congress and the President to influence the behavior of agencies....

Presidential Permits for Border Crossing Energy Facilities

Controversy over the proposed Keystone XL pipeline project has focused attention on U.S. requirements for authorization to construct and operate pipelines and other energy infrastructure at international borders. For the most part, developers are required to obtain a Presidential Permit for border crossing facilities. The agency responsible for reviewing applications and issuing Presidential Permits varies depending on the type of facility. Oil and other hazardous liquids pipelines that cross borders are authorized by the U.S. Department of State. Natural gas pipeline border crossings are...

Rwanda’s August 4 Presidential Election

Politics and the 2017 Presidential Election

The circumstances of Rwanda’s August 4 presidential election highlight some of the policy challenges in approaching a country that arguably combines effective governance with political repression. President Paul Kagame, in office since 2000, is campaigning for a third term. A constitutional referendum in 2015 changed the presidential term from seven to five years but exempted the sitting President from the shortened term and from a two-term limit until 2024 (Article 101, Article 172).

The referendum was scheduled following “national...

Inter Partes Review of Patents: Innovation Issues

The Leahy-Smith America Invents Act (AIA) of 2011 introduced inter partes review proceedings (IPRs) into the patent system. IPRs allow the U.S. Patent and Trademark Office (USPTO) to revisit—and possibly cancel—a patent the agency had previously allowed. Under these proceedings, any individual may petition the USPTO to assert that a granted patent is invalid in view of earlier patents or printed publications. A petitioner must demonstrate that there is a “reasonable likelihood” that he would prevail for the IPR to begin. Should the USPTO’s Patent Trial and Appeal Board (PTAB) grant the...

U.S.-Mexican Security Cooperation: The Mérida Initiative and Beyond

Ten years after the Mexican government launched an aggressive, military-led campaign against drug trafficking and organized crime, violent crime continues to threaten citizen security and governance in parts of Mexico, including in cities along the U.S. southwest border. Organized crime-related violence in Mexico declined from 2011 to 2014 but rose in 2015 and again in 2016. Analysts estimate that the violence may have claimed more than 109,000 lives since December 2006. High-profile cases—particularly the enforced disappearance and murder of 43 students in Guerrero in September 2014—have...

Climate Change: Frequently Asked Questions About the 2015 Paris Agreement

The Paris Agreement (PA) to address climate change internationally entered into force on November 4, 2016. The United States is one of 149 Parties to the treaty; President Barack Obama accepted the agreement rather than ratifying it with the advice and consent of the Senate. On June 1, 2017, President Donald J. Trump announced his intent to withdraw the United States from the agreement and that his Administration would seek to reopen negotiations on the PA or on a new “transaction.” Following the provisions of the PA, U.S. withdrawal could take effect as early as November 2020.

Experts...

Israel and the Boycott, Divestment, and Sanctions (BDS) Movement

This report provides information and analysis on a boycott, divestment, and sanctions (“BDS”) movement against Israel. The BDS movement is generally seen as a loose grouping of actors from various countries who advocate or engage in economic measures against Israel or Israel-related individuals or organizations, though defining precisely what may or may not constitute BDS activity is subject to debate.

The report also analyzes economic measures that “differentiate” or might be seen as differentiating between (1) Israel in general and (2) entities linked with Israeli-developed areas and...

Burma’s Political Prisoners and U.S. Policy: In Brief

With Aung San Suu Kyi and the National League for Democracy (NLD) in control of Burma’s Union Parliament and the government’s executive branch, prospects may have improved for ending the arrest, detention, prosecution, and imprisonment of political prisoners in Burma, a reality which has overshadowed U.S. policy toward Burma for more than 25 years. Burma’s military, or Tatmadaw, however, may not support the unconditional release of all political prisoners in Burma, and potentially has the power to block such an effort.

The 115th Congress may have an opportunity to influence Burma’s future...

Enrollment of Legislation: Relevant Congressional Procedures

An enrolled bill or resolution is the form of a measure finally agreed to by both chambers of Congress. Enrollment occurs in the chamber where the measure originated and is carried out by enrolling clerks under the supervision of the Clerk of the House of Representatives and Secretary of the Senate. Enrolled bills and joint resolutions are signed by the presiding officers of each chamber (or their designees) and are presented to the President by the House Clerk or Secretary of the Senate, depending on the chamber of origination.

In instances in which Congress determines that the enrolled...

The Electoral College: How It Works in Contemporary Presidential Elections

When Americans vote for a President and Vice President, they are actually choosing presidential electors, known collectively as the electoral college. It is these officials who choose the President and Vice President of the United States. The complex elements comprising the electoral college system are responsible for election of the President and Vice President.

The 2016 presidential contest was noteworthy for the first simultaneous occurrence in presidential election history of four rarely occurring electoral college eventualities. These included (1) the election of a President and Vice...

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure

Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent times the contempt power has most often been employed in response to non-compliance with a duly issued congressional subpoena—whether in the form of a refusal to appear before a committee for purposes of...

Constitutional Points of Order in the Senate

In general, the Senate’s presiding officer does not take the initiative in enforcing Senate rules and precedents. Instead, a Senator may raise a point of order if he or she believes the Senate is taking (or is about to take) an action that violates the rules. In most circumstances, the presiding officer rules on the point of order on advice of the Parliamentarian; that ruling is typically subject to an appeal on which the Senate votes (unless the appeal is tabled or withdrawn). Pursuant to Rule XX, however, in certain circumstances a point of order is not ruled on by the presiding officer...

Turkey: Erdogan’s Referendum Victory Delivers “Presidential System”

Based on unofficial results released by Turkish officials, constitutional changes to establish a “presidential system” in Turkey appear to have been adopted via a 51.4% favorable vote in an April 16, 2017, nationwide referendum. President Recep Tayyip Erdogan and the ruling Justice and Development Party (AKP) had campaigned vigorously in support of the changes after obtaining the requisite parliamentary approval with the support of the Nationalist Action Party (MHP) in January 2017. Assuming the outcome holds despite some allegations of irregularities, most of the changes—including the...

Presidential Permit Review for Cross-Border Pipelines and Electric Transmission

Executive permission in the form of a Presidential Permit has long been required for the construction, connection, operation, and maintenance of certain facilities that cross the United States borders with Canada and Mexico. The constitutional basis for the President’s cross-border permitting authority has been addressed by the courts, but questions remain about the manner in which this authority is exercised among the agencies to which it has been delegated. In particular, some Members of Congress and affected stakeholders seek greater clarity about how Presidential Permit applications...

Gun Control, Veterans Benefits, and Mental Incompetency Determinations

On March 16, 2017, the House of Representatives passed the Veterans 2nd Amendment Protection Act (H.R. 1181) by a roll call vote (240-175). Under H.R. 1181, the Department of Veterans’ Affairs (VA) would be prohibited from determining any beneficiary for whom a fiduciary is appointed, because he or she “lacks the capacity to contract or handle his or her own affairs,” as “adjudicated as a mental defective” for the purposes of gun control, unless a magistrate or judicial authority also rules that the beneficiary is a danger to himself or herself or others.

Pursuant to the Brady Handgun...

Implementing the Affordable Care Act: Delays, Extensions, and Other Administrative Actions Taken by the Obama Administration

During the Obama Administration, the two federal agencies primarily responsible for administering the private health insurance provisions in the Affordable Care Act (ACA)—the Centers for Medicare & Medicaid Services (CMS) within the Department of Health and Human Services (HHS), and the Internal Revenue Service (IRS) within the Treasury Department—took a series of actions to delay, extend, or otherwise modify the law’s implementation.

This report summarizes selected administrative actions taken by CMS and the IRS through February 2015 to address ACA implementation. The report is no longer...

The Civil Service Reform Act: Due Process and Misconduct-Related Adverse Actions

Federal employees receive statutory protections that differ from those of the private sector, including more robust limits on when they can be removed or demoted. Although a number of laws apply to various aspects of the federal civil service system, the primary governing framework is the Civil Service Reform Act of 1978 (CSRA), as amended. The CSRA created a comprehensive system for reviewing actions taken by most federal agencies against their employees, and the act provides a variety of legal protections and remedies for federal employees. It also funnels review of agency decisions to...

The War Powers Resolution: Concepts and Practice

This report discusses and assesses the War Powers Resolution and its application since enactment in 1973, providing detailed background on various cases in which it was used, as well as cases in which issues of its applicability were raised. It will be revised biannually.

In the post-Cold War world, Presidents have continued to commit U.S. Armed Forces into potential hostilities, sometimes without a specific authorization from Congress. Thus the War Powers Resolution and its purposes continue to be a potential subject of controversy. On June 7, 1995, the House defeated, by a vote of...

The Federal Government’s Authority to Impose Conditions on Grant Funds

Commonly known as the Spending Clause, Article I, Section 8, Clause 1 of the U.S. Constitution has been widely recognized as providing the federal government with the legal authority to offer federal grant funds to states and localities that are contingent on the recipients engaging in, or refraining from, certain activities. However, the Supreme Court has articulated certain limitations on the exercise of this power. In its 1987 decision in South Dakota v. Dole, which arguably remains the leading case regarding the use of the federal government’s conditional spending power, the Court held...

Congressional Redistricting Law: Background and Recent Court Rulings

In addition to various state processes, the legal framework for congressional redistricting involves constitutional and federal statutory requirements. Interpreting these requirements, in a series of cases and evolving jurisprudence, the U.S. Supreme Court has issued rulings that have significantly shaped how congressional districts are drawn and the degree to which challenges to redistricting plans may succeed. As the 2020 round of redistricting approaches, foundational and recent rulings by the Court regarding redistricting are likely to be of particular interest to Congress. This report...

A Change in Direction for Seoul? The Impeachment of South Korea’s President

On March 10, 2017, South Korea’s Constitutional Court unanimously voted to uphold the impeachment of former President Park Geun-hye, nearly 11 months before her term was due to end. The decision was the latest development in a corruption scandal that has engulfed South Korean politics and the business world since October 2016, and comes against the backdrop of North Korean missile tests, Chinese anger at the deployment of a U.S. missile defense system in South Korea, and uncertainties about the direction of U.S. foreign policy under the Trump Administration. By law, South Korea must hold...

Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA

On October 23, 2015, the U.S. Environmental Protection Agency (EPA) published its final Clean Power Plan rule (Rule) to regulate emissions of greenhouse gases (GHGs), specifically carbon dioxide (CO2), from existing fossil fuel-fired power plants. The aim of the Rule, according to EPA, is to help protect human health and the environment from the impacts of climate change. The Clean Power Plan would require states to submit plans to achieve state-specific CO2 goals reflecting emission performance rates or emission levels for predominantly coal- and gas-fired power plants, with a series of...

Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

On January 31, 2017, President Donald J. Trump announced the nomination of Judge Neil M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the vacancy on the Supreme Court of the United States created by the death of Justice Antonin Scalia in 2016. Judge Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006. The Tenth Circuit’s territorial jurisdiction covers Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming, and parts of Yellowstone National Park that extend into Idaho and Montana.

Immediately prior to his appointment to the...

Protests in Cameroon: Context and Issues for Congress

Since late 2016, members of Cameroon’s minority Anglophone community have demonstrated against their perceived marginalization, exposing historic fissures in Cameroon’s diverse society and placing further strain on a government facing serious political and security challenges. The administration of long-serving President Paul Biya has responded forcefully, prompting international criticism. The unrest may be of interest to some Members of Congress, given possible implications for stability in Central Africa and U.S.-Cameroonian security cooperation to counter Boko Haram, the...

Northern Ireland’s Snap Assembly Elections: Outcome and Implications

On March 2, 2017, voters in Northern Ireland—which is one of four component “nations” of the United Kingdom (UK)—went to the polls in snap elections for Northern Ireland’s Assembly, its regional legislature. The Assembly is a key institution in Northern Ireland’s devolved government, in which specified powers have been transferred from London to Belfast, as set out in the 1998 peace agreement aimed at ending Northern Ireland’s 30-year sectarian conflict (in which almost 3,500 people died). The peace accord mandated that power in the devolved government would be shared between Northern...

Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information

Recent unauthorized disclosures of information concerning activities in the White House, and the publication of large quantities of classified information by WikiLeaks and other organizations and news outlets, have prompted congressional interest in criminal prohibitions on disclosure of classified information. While some have described recent leaks of classified information as “illegal” and “criminal,” there is no single statute that criminalizes any unauthorized disclosure of classified information. Instead, the legal framework is based on a complex and often overlapping set of statutes...

Independence of Federal Financial Regulators: Structure, Funding, and Other Issues

Conventional wisdom regarding regulators is that the structure and design of the organization matters for policy outcomes. Financial regulators conduct rulemaking and enforcement to implement law and supervise financial institutions. These agencies have been given certain characteristics that enhance their day-to-day independence from the President and Congress, which may make policymaking more technical and less “political” or “partisan,” for better or worse. Independence may also make regulators less accountable to elected officials and can reduce congressional influence, at least in the...

Filling Advice and Consent Positions at the Outset of Recent Administrations, 1981-2009

The length of the appointment processes during presidential transitions has been of concern to observers for more than 30 years. The process is likely to develop a bottleneck during this time due to the large number of candidates who must be selected, vetted, and, in the case of positions filled through appointment by the President with the advice and consent of the Senate (PAS positions), considered by that body.

The appointment process has three stages: selection and vetting, nomination and Senate consideration, and presidential appointment. Congress has taken steps to accelerate...

Sanctuary Jurisdictions: Congressional Action and President Trump’s Interior Enforcement Executive Order

President Trump’s executive order (EO) “Enhancing Public Safety in the Interior of the United States” issued on January 25, 2017, seeks, among other things, to penalize “sanctuary jurisdictions.” The latter is an informal term referring to states and localities that limit their cooperation with federal agencies on immigration law enforcement. In the immigration context, the EO may raise legal questions about the extent to which states and localities must comply with federal immigration law enforcement efforts and the potential consequences for not cooperating with these efforts.

What Are...

Foreign Assistance: The Mexico City Policy

On January 23, 2017, President Trump issued a memorandum reinstating the “Mexico City policy,” which requires foreign nongovernmental organizations (NGOs) receiving certain types of U.S. assistance to certify that they will not perform or actively promote abortion as a method of family planning, even if such activities are conducted with non-U.S. funds.

Background and Context: Key Administration Actions

The Mexico City policy has remained a controversial issue in U.S. foreign assistance. Since it was first issued by President Reagan in 1984, the policy has been established and rescinded...

Nicaragua: In Brief

This report discusses Nicaragua’s current politics, economic development, and relations with the United States, and it provides context for Nicaragua’s controversial reelection of President Daniel Ortega late last year. After its civil war ended, Nicaragua began to establish a democratic government in the early 1990s. Its institutions remained weak, however, and they have become increasingly politicized since the late 1990s. Ortega was a Sandinista (Frente Sandinista de Liberacion Nacional, FSLN) leader when the Sandinistas overthrew the dictatorship of Anastasio Somoza in 1979. Ortega was...

Reserve Component Personnel Issues: Questions and Answers

The Constitution provides Congress with broad powers over the Armed Forces, including the power to "to raise and support Armies," "to provide and maintain a Navy," "to make Rules for the Government and Regulation of the land and naval Forces" and "to provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States.... " In the exercise of this constitutional authority, Congress has historically shown great interest in various issues that bear on the vitality of the reserve components, such as funding,...

SORNA: A Legal Analysis of 18 U.S.C. §2250 (Failure to Register as a Sex Offender)

Section 2250 of Title 18 of the United States Code outlaws an individual’s failure to comply with federal Sex Offender Registration and Notification Act (SORNA) requirements. SORNA demands that an individual—previously convicted of a qualifying federal, state, or foreign sex offense—register with state, territorial, or tribal authorities. Individuals must register in every jurisdiction in which they reside, work, or attend school. They must also update the information whenever they move, or change their employment or educational status. Section 2250 applies only under one of several...

SORNA: An Abridged Legal Analysis of 18 U.S.C. §2250 (Failure to Register as a Sex Offender)

Section 2250 of Title 18 of the United States Code outlaws an individual’s failure to comply with federal Sex Offender Registration and Notification Act (SORNA) requirements. SORNA demands that an individual—previously convicted of a qualifying federal, state, or foreign sex offense—register with state, territorial, or tribal authorities. Individuals must register in every jurisdiction in which they reside, work, or attend school. They must also update the information whenever they move, or change their employment or educational status. Section 2250 applies only under one of several...

Introducing a House Bill or Resolution

Authoring and introducing legislation is fundamental to the task of representing voters as a Member of Congress. In fact, part of what makes the American political process unique is that it affords all Members an ability to propose their own ideas for chamber consideration. By comparison, most other democratic governments around the world rely on an executive official, often called a premier, chancellor, or prime minister, to originate and submit policy proposals for discussion and enactment by the legislature. Legislators serving in other countries generally lack the power to initiate...

Constitutional Authority Statements and the Powers of Congress: An Overview

On January 5, 2011, the House of Representatives adopted an amendment to House Rule XII to require that Members of the House state the constitutional basis for Congress’s power to enact the proposed legislation when introducing a bill or joint resolution. This Constitutional Authority Statement (CAS) rule, found at House Rule XII, clause 7(c), was subsequently adopted in the 113th, 114th, and 115th Congresses.

Understanding the CAS rule first requires an understanding of both the powers provided to the Congress under the Constitution and Congress’s role in interpreting the founding...

Party Leaders in the United States Congress, 1789-2017

This report briefly describes current responsibilities and selection mechanisms for 15 House and Senate party leadership posts and provides tables with historical data, including service dates, party affiliation, and other information for each. Tables have been updated as of the report’s issuance date to reflect leadership changes.

Although party divisions appeared almost from the First Congress, the formally structured party leadership organizations now taken for granted are a relatively modern development. Constitutionally specified leaders, namely the Speaker of the House and the...

Sri Lanka: Background, Reform, Reconciliation, and Geopolitical Context

Sri Lanka is a nation of geopolitical importance despite its relatively small size. Strategically positioned near key maritime sea lanes that transit the Indian Ocean and link Asia with Europe and Africa, Sri Lanka’s external orientation, in particular its ties to China, are of great interest to nearby India. Some observers view China’s involvement in the Sri Lankan port at Hanbantota to be part of Beijing’s strategy to secure sea lanes through the Indian Ocean.

United States-Sri Lanka relations are expanding significantly, creating new opportunities for Congress to play a role in shaping...

Colombia’s Peace Process Through 2016

In August 2012, Colombian President Juan Manuel Santos announced that the government was engaged in exploratory peace talks with the violent leftist insurgent group, the Revolutionary Armed Forces of Colombia (FARC), in a bid to resolve a nearly 50-year internal armed conflict. The secret, initial dialogue between the Santos government and the FARC’s leadership led to the opening of formal peace talks with the FARC—the oldest, largest, and best-financed guerrilla organization in Latin America. Formal talks began in Oslo, Norway, in October 2012 and then, as planned, moved to Havana, Cuba,...

The Impeachment of South Korea’s President

On December 9, South Korea’s National Assembly impeached President Park Geun-hye on charges of “extensive and serious violations of the Constitution and the law” stemming from a corruption scandal that, since late October, have brought millions of South Koreans to the streets in weekly anti-Park protests, the largest in the country’s history. The impeachment leaves the South Korean government under a caretaker government—albeit one appointed by Park—while she awaits a decision from the country’s Constitutional Court. The impeachment could complicate a number of U.S. foreign policy efforts...

Agency Final Rules Submitted on or After June 13, 2016, May Be Subject to Disapproval by the 115th Congress

With a change of presidential administrations taking place in January, some in Congress are paying renewed attention to a parliamentary mechanism that might enable the new Congress and the new President to overturn agency final rules of the Obama Administration issued after early June 2016.

The Congressional Review Act (5 U.S.C. §§801-808), enacted as part of the 104th Congress’s (1995-1996) “Contract with America,” established a special parliamentary mechanism whereby Congress can disapprove a final rule promulgated by a federal agency. While Congress has considered several CRA joint...

Changing the Senate Cloture Rule at the Start of a New Congress

From 1953 to 1975, proposals to reform Rule XXII at the start of a new Congress were biennial rituals. They were instigated by Senators in each party frustrated by the chamber’s inability to enact social and civil rights legislation because of the opposition of other Members. The biennial focus declined somewhat when the Senate in 1975 amended Rule XXII to reduce the number of Senators required to invoke cloture from two-thirds of the Senators present and voting to three-fifths of the Senators chosen and sworn (60 of 100). In 1979 and 1986, the Senate also amended Rule XXII by reducing the...

Presidential Authority over Trade: Imposing Tariffs and Duties

The United States Constitution gives Congress the power to impose and collect taxes, tariffs, duties, and the like, and to regulate international commerce. While the Constitution gives the President authority to negotiate international agreements, it assigns him no specific power over international commerce and trade. Through legislation, however, Congress may delegate some of its power to the President, such as the power to modify tariffs under certain circumstances. Thus, because the President does not possess express constitutional authority to modify tariffs, he must find authority for...

Terrorist Material Support: An Overview of 18 U.S.C. §2339A and §2339B

The material support statutes, 18 U.S.C. §§2339A and 2339B, have been among the most frequently prosecuted federal anti-terrorism statutes. Section 2339A outlaws:

(1) whoever (2) [knowingly] (3)(a) attempting to, (b) conspiring to, or (c) actually (4)(a) providing material support or resources, or (b) concealing or disguising (i) the nature, (ii) location, (iii) source, or (iv) ownership of material support or resources (5) knowing or intending that they be used (a) in preparation for, (b) in carrying out, (c) in preparation for concealment of an escape from, or (d) in carrying out the...

Democratic Republic of Congo: Targeted Sanctions

Congress has long focused on human rights and humanitarian hardship in war-ravaged eastern Democratic Republic of Congo, an epicenter of instability in Central Africa’s Great Lakes region. Recently, congressional attention has turned to DRC’s democratic trajectory and dynamics in the capital, Kinshasa. President Joseph Kabila’s effort to stay in office—which opposition and civil society activists view as unconstitutional—has spurred unrest and could become a violent crisis (see CRS Report R43166, Democratic Republic of Congo: Background and U.S. Relations).

In October, the DRC government...

Terrorist Material Support: A Sketch of 18 U.S.C. §2339A and §2339B

The material support statutes, 18 U.S.C. §§2339A and 2339B, have been among the most frequently prosecuted federal anti-terrorism statutes. Section 2339A outlaws:

(1) whoever (2) [knowingly] (3)(a) attempting to, (b) conspiring to, or (c) actually (4)(a) providing material support or resources, or (b) concealing or disguising (i) the nature, (ii) location, (iii) source, or (iv) ownership of material support or resources (5) knowing or intending that they be used (a) in preparation for, (b) in carrying out, (c) in preparation for concealment of an escape from, or (d) in carrying out the...

An Introduction to Judicial Review of Federal Agency Action

The U.S. Constitution vests the judicial power in the Supreme Court and any inferior courts established by Congress, limiting the power of federal courts to the context of “cases” or “controversies.” Pursuant to constitutional and statutory requirements, courts may hear challenges to the actions of federal agencies in certain situations. This report offers a brief overview of important considerations when individuals bring a lawsuit in federal court to challenge agency actions, with a particular focus on the type of review authorized by the Administrative Procedure Act (APA), perhaps the...

Colombia Adopts Revised Peace Accord: What Next?

In an effort to end a half century of armed conflict between the largest leftist insurgent group in Colombia, the Revolutionary Armed Forces of Colombia (FARC), and the Colombian government, a revised peace accord was signed in November 2016 by President Juan Manuel Santos and the FARC’s leader, known as Timochenko. On November 30, 2016, the new accord was “ratified” by the Colombian Congress, first by the Colombian Senate by a vote of 75-0 (out of 101 Senators) and a day later by the lower house by a vote of 130-0 (out of 166). Congressional opponents either did not vote or walked out,...

Internet Sales and State Taxes: Policy Issues

With the holiday shopping season in full swing, many consumers will choose to buy gifts through online retailers rather than brick-and-mortar shops. While some consumers may choose to shop on the Internet for convenience, some might also be attracted to shopping online by the apparently lower prices, which do not always include sales and use tax. Customers who do not pay sales or use tax to the vendor are typically required to remit the tax to their home state. Customer compliance with this requirement, however, is very low.

In certain instances, the taxes are not included in the online...

The Legislative Process on the House Floor: An Introduction

The daily order of business on the floor of the House of Representatives is governed by standing rules that make certain matters and actions privileged for consideration. On a day-to-day basis, however, the House usually decides to grant individual bills privileged access to the floor, using one of several parliamentary mechanisms.

The standing rules of the House include several different parliamentary mechanisms that the body may use to act on bills and resolutions. Which of these will be employed in a given instance usually depends on the extent to which Members want to debate and amend...

Authorization of Appropriations: Procedural and Legal Issues

To provide funding for discretionary spending programs of the government, Congress generally uses an annual appropriations process. Under congressional rules, when making decisions about the funding of individual items or programs, however, Congress may be constrained by the terms of previously enacted legislation. The way in which the House and Senate interpret and apply this concept under their respective rules and precedents creates a distinction between authorized and unauthorized appropriations. This report provides a brief explanation of this distinction, and its significance for...

Got Concrete Block? House Approves Mandatory Fees to Promote It

Since the 1970s, producers of certain agricultural commodities have been covered by checkoff programs to fund generic promotion activities (such as advertising “Got Milk?” and “Incredible Edible Egg”). These programs, sanctioned under federal law, have at times been controversial because they require affected producers and other market participants to pay assessments to cover the cost of these activities. Nonetheless, Congress has supported checkoff programs. On November 14, the House of Representatives approved a bill that would expand them far beyond agriculture—to concrete masonry....

Moldova: A Pivotal Election?

Moldova’s presidential election, on October 30 and November 13, 2016, has occurred at a challenging time for this small state located between Romania and Ukraine. In the second round of the election, the Russian-leaning Socialist Party leader Igor Dodon won 52% of the vote and his competitor, former Minister of Education (and former World Bank economist) Maia Sandu, received 48%.

This is the first time since 1996 that Moldova’s president was elected by popular vote. Dodon has pledged to unite the country’s divided voters, but he has limited powers in Moldova’s largely parliamentary...

Congressional Staff: CRS Products on Size, Pay, and Job Tenure

The manner in which staff are integrated and utilized within an organization may reflect the missions and priorities of that organization. In Congress, staff work for Members of Congress in personal, committee, and leadership offices, and are involved with every facet of congressional activity. Activities might include supporting a Member’s representational, legislative, leadership, or administrative responsibilities as they arise in those settings.

House and Senate staff activities may be of particular interest as one Congress comes to a close, and another Congress integrates new Members...

Antiquities Act: Scope of Authority for Modification of National Monuments

The Antiquities Act of 1906 authorizes the President to declare, by proclamation, that objects of historic or scientific interest on federal lands are designated as national monuments. Over the course of more than a century, Presidents have cited the Antiquities Act as authority for protecting well over 100 land and marine areas, totaling hundreds of millions of acres, as national monuments. National monuments generally are reserved and protected from certain uses such as mineral leasing or mining, although management terms may vary by monument. Partly because of such restrictions, some...

Contingent Election of the President and Vice President by Congress: Perspectives and Contemporary Analysis

The 12th Amendment to the Constitution requires that presidential and vice presidential candidates gain “a majority of the whole number of Electors appointed” in order to win election. With a total of 538 electors representing the 50 states and the District of Columbia, 270 electoral votes is the “magic number,” the arithmetic majority necessary to win the presidency.

What would happen if no candidate won a majority of electoral votes? In these circumstances, the 12th Amendment also provides that the House of Representatives would elect the President, and the Senate would elect the Vice...

Recent State Election Law Challenges: In Brief

During the final months and weeks leading up to the November 8, 2016, presidential election, courts across the country have ruled in numerous challenges to state election laws. For example, there have been recent court rulings affecting the laws regulating early voting, voter photo identification (ID) requirements, registration procedures, straight-party voting, and voter rolls. Accordingly, many such laws have been recently invalidated, enjoined, or altered. Others continue to be subject to litigation.

Recent rulings in Michigan, North Carolina, Ohio, and Texas are illustrative examples....

Extraterritorial Application of American Criminal Law

Criminal law is usually territorial. It is a matter of the law of the place where it occurs. Nevertheless, a number of American criminal laws apply extraterritorially outside of the United States. Application is generally a question of legislative intent, express or implied. There are two exceptions. First, the statute must come within Congress’s constitutional authority to enact. Second, neither the statute nor its application may violate due process or any other constitutional prohibition.

Claims of implied extraterritoriality must overcome additional obstacles. Federal laws are presumed...

Extraterritorial Application of American Criminal Law: An Abbreviated Sketch

Criminal law is usually territorial. It is a matter of the law of the place where it occurs. Nevertheless, a number of American criminal laws apply extraterritorially outside of the United States. Application is generally a question of legislative intent, express or implied. There are two exceptions. First, the statute must come within Congress’s constitutional authority to enact. Second, neither the statute nor its application may violate due process or any other constitutional prohibition.

Claims of implied extraterritoriality must overcome additional obstacles. Federal laws are...

Elections Strengthen Georgia’s Ruling Party

On October 8, 2016, and October 30, 2016, the country of Georgia held parliamentary elections, which domestic and international observers assessed as democratic, despite isolated violations and violent incidents. The elections tested the resilience of Georgia’s ruling party, the center-left Georgian Dream-Democratic Georgia (GDDG), founded by oligarch Bidzina Ivanishvili in 2012 to unseat the United National Movement (UNM), formerly led by Mikheil Saakashvili. GDDG won a resounding victory and is on track to enjoy a constitutional majority.

Support for the Georgian Dream

GDDG’s victory...

State Voter Identification Requirements: Analysis, Legal Issues, and Policy Considerations

About 60% of U.S. voters live in the 32 states that require a voter at a polling place to produce an identification document (ID) before casting a ballot. Among those states, 19 permit voters without ID to cast a ballot through alternative means, such as signing an affidavit; 13 strictly enforce the ID requirement. The other 18 states and the District of Columbia have a range of nondocument requirements instead.

Over the last two decades, the number of states requiring voter IDs has tripled. The stringency of those requirements is controversial. States vary substantially in the range of...

Congress and the Budget: 2016 Actions and Events

The Constitution grants Congress the power of the purse, but does not dictate how Congress must fulfill this constitutional duty. Congress has, therefore, developed certain types of budgetary legislation, along with rules and practices that govern its content and consideration. This set of budgetary legislation, rules, and practices is often referred to as the congressional budget process.

There is no prescribed congressional budget process that must be strictly followed each year, and Congress does not always consider budgetary measures in a linear or predictable pattern. Such...

Presidential Elections: Vacancies in Major-Party Candidacies and the Position of President-Elect

What would happen in 2016 if a candidate for President or Vice President were to die or leave the ticket any time between the national party conventions and the November 8 election day? What would happen if this occurred during presidential transition, either between election day and the December 19, 2016, meeting of the electoral college; or between December 19 and the inauguration of the President and Vice President on January 20, 2017? Procedures to fill these vacancies differ depending on when they occur.

During the Election Campaign—Between the National Party Nominating Conventions...

Presidential Policy Directive 41: United States Cyber Incident Coordination—What Is the Role of the Department of Defense?

On July 26, 2016, President Obama signed Presidential Policy Directive 41, United States Cyber Incident Coordination, “setting forth principles governing the Federal Government’s response to any cyber incident, whether involving government or private sector entities.” Issued following high-profile attacks such as the Office of Personnel Management (OPM) breach in 2015 and the recent breach of the Democratic National Committee’s (DNC’s) email system, the directive addresses a number of cyber-related issues, including defining various types of cyber incidents as well as departmental roles...

Questions of the Privileges of the House

A question of the privileges of the House is a formal declaration by a Member of the House asserting that a situation has arisen that affects “the rights of the House collectively, its safety, dignity, and the integrity of its proceedings.” When making the declaration, the Member submits a resolution providing detail on the situation and typically urging action of some sort.

The notion of such questions predates Congress, and House precedent states, “The tradition of Anglo-American parliamentary procedure recognizes the privileged status of questions related to the honor and security of a...

The Financial CHOICE Act in the 114th Congress: Policy Issues

The Financial CHOICE Act (FCA; H.R. 5983), sponsored by Chairman Jeb Hensarling, was ordered to be reported by the House Committee on Financial Services on September 13, 2016. The bill is a wide-ranging proposal with 11 titles that would alter many parts of the financial regulatory system. Much of the FCA is in response to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act; P.L. 111-203), a broad package of regulatory reform legislation that initiated the largest change to the financial regulatory system since at least 1999. Many of the provisions of the...

Brazil in Crisis

Brazilian President Dilma Rousseff of the center-left Workers Party was permanently removed from office on August 31, 2016—a little more than a year and a half into her second four-year term. Officially, Rousseff was impeached and convicted by supermajorities in both houses of the Brazilian Congress for violating the country’s fiscal responsibility law. Many analysts contend, however, that Rousseff’s fate was determined more by legislators’ political calculations than by the legal merits of the impeachment charges. Rousseff’s political base collapsed over the past year as a deep economic...

Paris Agreement: United States, China Move to Become Parties to Climate Change Treaty

On September 3, 2016, the United States and China consented to be bound by the international Paris Agreement (PA) to address greenhouse-gas-induced climate change.

The PA was negotiated under the United Nations Framework on Climate Change (UNFCCC), which the United States ratified in 1992 with the advice and consent of the Senate. The UNFCCC set an objective of “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”—implicitly requiring that human-related net emissions of greenhouse gases...

U.S. Withdrawal from Free Trade Agreements: Frequently Asked Legal Questions

The United States is party to 14 international free trade agreements (FTAs) with 20 countries. These agreements impose a wide variety of international obligations on the United States and its trading partners. Such obligations address import tariffs, as well as potential nontariff trade barriers. A country that is party to an FTA and that maintains laws, regulations, or practices that violate one of these obligations may be subject to trade retaliation (e.g., other FTA parties may increase tariffs on the country’s exports) or may have to pay a fine or monetary compensation to an FTA...

Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act

A criminal prosecution involving classified information may cause tension between the government’s interest in protecting classified information and the criminal defendant’s right to a constitutionally valid trial. In some cases, a defendant may threaten to disclose classified information in an effort to gain leverage. Concerns about this practice, referred to as “graymail,” led the 96th Congress to enact the Classified Information Procedures Act (CIPA) to provide uniform procedures for prosecutions involving classified information. Examples of recent cases implicating CIPA have arisen in...

Gabon’s August 27 Presidential Election

The 2016 Presidential Election

President Ali Bongo is campaigning for a second seven-year term in a vote scheduled for August 27. A serious challenge from opposition candidate Jean Ping, a respected diplomat who previously served as president of the African Union Commission, may make the election unusually competitive for a country that has known only two presidents since 1967 (Bongo and his father, Omar Bongo, who died in 2009). Several factors nevertheless favor the incumbent—notably, a single-round electoral system that does not require a majority of votes to win, which enabled Bongo to...

How Treasury Issues Debt

The U.S. Department of the Treasury (Treasury), among other roles, manages the country’s debt. The primary objective of Treasury’s debt management strategy is to finance the government’s borrowing needs at the lowest cost over time. To accomplish this Treasury adheres to three principles: (1) to issue debt in a regular and predictable pattern, (2) to provide transparency in the decisionmaking process, and (3) to seek continuous improvements in the auction process.

Within the Treasury, the Office of Debt Management (ODM) makes all decisions related to debt issuance and the management of the...

Coordinated Party Expenditures in Federal Elections: An Overview

A provision of federal campaign finance law, codified at 52 U.S.C. §30116(d) (formerly 2 U.S.C. §441a(d)), allows political party committees to make expenditures on behalf of their general election candidates for federal office and specifies limits on such spending. These “coordinated party expenditures” are important not only because they provide financial support to campaigns, but also because parties and campaigns may explicitly discuss how the money is spent. Although they have long been the major source of direct party financial support for campaigns, coordinated expenditures have...

Implementing Bills for Trade Agreements: Statutory Procedures under Trade Promotion Authority

The Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (BCTPAA, title II of P.L. 114-26) renewed the “trade promotion authority” (TPA) under which implementing bills for trade agreements that address non-tariff barriers to trade (and certain levels of tariff reduction) are eligible for expedited (or “fast track”) consideration by Congress under the “trade authorities procedures” established by the Trade Act of 1974 (P.L. 93-618). These expedited procedures provide for automatic introduction of the implementing bill submitted by the President, attempt to ensure that...

Evolution of the Meaning of “Waters of the United States” in the Clean Water Act

The scope of waters that are properly the subject of federal water pollution legislation has been the subject of long-standing consideration by all three branches of the federal government, particularly in the aftermath of the 1972 amendments to the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act. In a shift from early water pollution legislation, those amendments eliminated the requirement that the federally regulated waters—known as jurisdictional waters—must be navigable in the traditional sense, meaning that they are capable of being used by vessels in...

State Challenges to Federal Enforcement of Immigration Law: From the Mid-1990s to the Present

States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. Depending upon the jurisdiction’s specific concerns, this interest can be expressed in various ways, from the adoption of “sanctuary” policies limiting the jurisdiction’s cooperation in federal enforcement efforts to the enactment of measures to deter unauthorized aliens from entering or remaining within the jurisdiction. In some cases, states or localities have...

Terrorist Databases and the No Fly List: Procedural Due Process and Other Legal Issues

In order to protect national security, the government maintains various terrorist watchlists, including the “No Fly” list, which contains the names of individuals to be denied boarding on commercial airline flights. Travelers on the No Fly list are not permitted to board an American airline or any flight on a foreign air carrier that lands or departs from U.S. territory or flies over U.S. airspace. Some individuals have claimed that their alleged placement on the list was the result of an erroneous determination by the government that they posed a national security threat. In some cases,...

The U.S.-Japan Alliance

The U.S.-Japan alliance has long been an anchor of the U.S. security role in Asia. Forged in the U.S. occupation of Japan after its defeat in World War II, the alliance provides a platform for U.S. military readiness in the Pacific. About 50,000 U.S. troops are stationed in Japan and have the exclusive use of 85 facilities. In exchange for the use of these bases, the United States guarantees Japan’s security. Security challenges in the region, particularly nuclear and missile tests by North Korea and increased Chinese maritime activities, have reinforced U.S.-Japan cooperation in recent...

Abortion and Whole Woman’s Health v. Hellerstedt

In Whole Woman’s Health v. Hellerstedt, the U.S. Supreme Court (Court) invalidated two Texas requirements that applied to abortion providers and physicians who perform abortions. Under a Texas law enacted in 2013, a physician who performs or induces an abortion was required to have admitting privileges at a hospital within 30 miles from the location where the abortion was performed or induced. In general, admitting privileges allow a physician to transfer a patient to a hospital if complications arise in the course of providing treatment. The Texas law also required an abortion facility to...

Executive Discretion as to Immigration: Legal Overview

The scope of the executive’s discretion in implementing federal immigration law is a topic of perennial interest to Members and committees of Congress. Most recently, questions have been raised as to whether particular actions announced by the Obama Administration in November 2014 are within the executive’s authority. See generally CRS Legal Sidebar WSLG1442, The Obama Administration’s November 20, 2014, Actions as to Immigration: Pending Legal Challenges One Year Later, by Kate M. Manuel. However, similar questions were raised in the past about other executive actions including, but not...

U.S. Foreign Assistance as Colombia’s Peace Talks on Cusp of Completion

On July 18, 2016, the Colombian Constitutional Court approved a plebiscite to allow Colombian voters to decide the fate of the peace accord under negotiation between the government of President Juan Manuel Santos and the country’s largest insurgent group, the Revolutionary Armed Forces of Colombia (FARC). After nearly four years of negotiations, a peace accord with FARC is close to signature. The leftist FARC has fought the Colombian government for 52 years with financing derived from extortion, drug trafficking, and other illicit activities.

By early July 2016, the FARC and government...

Turkey: Failed Coup and Implications for U.S. Policy

On July 15-16, 2016, elements within the Turkish military tried, but failed, to seize political power from President Recep Tayyip Erdogan and Prime Minister Binali Yildirim. The perpetrators detained the military’s top commanders, and declared (via Turkey’s government broadcaster) that they had taken power, but failed in their efforts to seize Erdogan or other key leaders. Government officials used various traditional and social media platforms and alerts from mosque loudspeakers to rally Turkey’s citizens in opposition to the plot.

Figure 1. President Erdogan on CNN Turk – July 16,...

Japan’s Upper House Elections: Ruling Coalition Strengthens Majority

Will Japan Amend Its Constitution?

In elections on July 10, 2016, for the Upper House of Japan’s Parliament, known as the Diet, the ruling coalition enlarged its majority from 135 to 146 seats out of 242. The conservative Liberal Democratic Party (LDP), led by Prime Minister Shinzo Abe, now holds two-thirds of the Lower House and a solid majority in the Upper House (see Figure 1) with its junior coalition partner Komeito. This fourth straight victory in parliamentary elections by Abe’s coalition reinforced his political power. Although the ruling coalition by itself fell short of the...

Federal Power over Local Law Enforcement Reform: Legal Issues

Several protests around the country regarding police use of force and a perceived lack of accountability for law enforcement officers have sparked a discussion about local law enforcement and judicial practices. In response, several Members of Congress have formulated a number of proposals designed to promote accountability and deter discrimination at the state and local levels. However, because the enforcement of criminal law is primarily the responsibility of state and local governments, the imposition of federal restrictions on such entities raises important constitutional issues:...

Congressional Censure and “No Confidence” Votes Regarding Public Officials

The House and the Senate have, from time to time in the past, proposed and—on some occasions—adopted a resolution which has expressed the body’s disapproval, condemnation, censure, or lack of confidence regarding a particular official in the executive branch of the federal government.

Such actions have not been considered as part of the express impeachment authority of the House within the Constitution (nor the authority to try such impeachments in the Senate), nor have they generally been considered as either part of the inherent contempt authority of either house of Congress or the...

Orlando Nightclub Mass Shooting: Gun Checks and Terrorist Watchlists

On June 12, 2016, an armed assailant killed 49 people and wounded over 50 others in an Orlando, FL, nightclub. After a three-hour standoff with police, the assailant was killed by police. It is unknown at this time whether any of the victims may have been killed in the crossfire between the police and the assailant during a hostage rescue operation. The deceased assailant was armed with a 5.56 caliber Sig Sauer rifle and a 9mm Glock semiautomatic pistol.

Assailant’s Gun Check

The alleged assailant, 29-year-old Omar Mir Seddique Mateen, acquired these firearms from a federally licensed gun...

Video Broadcasting from the Federal Courts: Issues for Congress

Members of Congress, along with the legal community, journalists, and the public, have long considered the potential merits and drawbacks of using video cameras to record and/or broadcast courtroom proceedings. The first bill to propose video camera use in the federal courts was introduced in the House of Representatives in 1937, and since the mid-1990s, Members of Congress in both chambers have regularly introduced bills to expand the use of cameras in the federal courts and have sometimes held hearings on the subject.

Video cameras are commonly used in state and local courtrooms...

RICO: A Brief Sketch

Congress enacted the federal Racketeer Influenced and Corrupt Organization (RICO) provisions as part of the Organized Crime Control Act of 1970. In spite of its name and origin, RICO is not limited to “mobsters” or members of “organized crime” as those terms are popularly understood. Rather, it covers those activities which Congress felt characterized the conduct of organized crime, no matter who actually engages in them.

RICO proscribes no conduct that is not otherwise prohibited. Instead it enlarges the civil and criminal consequences, under some circumstances, of a list of state and...

Military Officer Personnel Management: Key Concepts and Statutory Provisions

Congress and the executive branch are currently considering changes to the officer personnel management system. Some of these proposed changes would require changes to the laws, including provision enacted by the Defense Officer Personnel Management Act (DOPMA) and the Goldwater-Nichols Act (GNA).

Contemporary debates over officer personnel management policy often revolve around the fundamental questions of “what type of officers do we need to win the next war?” and “what skills does the officer corps need to enable the military services to perform their missions?” These questions are...

Dominican Republic: Update on Citizenship and Humanitarian Issues

The Dominican government has long been criticized for its treatment of Haitians and Dominicans of Haitian descent. The government is sensitive to such criticism because it touches on race and nationality issues. After sustained international criticism of a 2013 court ruling, Dominican President Danilo Medina has taken steps to address the citizenship status and rights of people of Haitian descent and undocumented individuals living in the Dominican Republic through implementation of a naturalization law and regularization plan. Medina is favored to win a second term in elections scheduled...

Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court

On March 16, 2016, President Obama nominated Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the vacancy on the Supreme Court created by the unexpected death of Justice Antonin Scalia in February. Judge Garland was appointed to the D.C. Circuit by President Clinton in 1997, and is currently its chief judge, an administrative position that rotates among the active judges on the circuit. Prior to his appointment to the bench, Judge Garland served in the Criminal Division of the U.S. Department of Justice, where he notably oversaw...

Securities and Exchange Commission’s Administrative Forum: Background and Selected Legal Challenges

The Securities and Exchange Commission’s (SEC’s) increased use of its in-house administrative forum to resolve charges against persons alleged to have violated federal securities laws has generated several court decisions, as well as congressional and media attention. Section 929P(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which gave the SEC the authority to impose civil money penalties, as well as cease-and-desist orders, on almost any person, is often stated as the reason that the SEC has increased its use of the administrative forum, instead of taking alleged...

Congressional Redistricting: Legal and Constitutional Issues

Congressional redistricting is the drawing of district boundaries from which the people choose their representatives to the U.S. House of Representatives. The legal framework for congressional redistricting resides at the intersection of the Constitution’s limits and powers, requirements prescribed under federal law, and the various processes imposed by the states. Prior to the 1960s, court challenges to redistricting plans were considered non-justiciable political questions that were most appropriately addressed by the political branches of government, not the judiciary. In 1962, in the...

The Internet Tax Freedom Act: In Brief

The Internet Tax Freedom Act (ITFA; P.L. 105-277), enacted in 1998, implemented a three-year moratorium preventing state and local governments from taxing Internet access, or imposing multiple or discriminatory taxes on electronic commerce. Under the moratorium, state and local governments cannot impose their sales tax on the monthly payments that consumers make to their Internet service provider in exchange for access to the Internet. In addition to the moratorium, a grandfather clause was included in ITFA that allowed states which had already imposed and collected a tax on Internet...

Supreme Court Vacancies: Frequently Asked Questions

The unexpected death of Supreme Court Justice Antonin Scalia on February 13, 2016—in the middle of the Supreme Court’s October 2015 term—has prompted questions about the process for filling the vacancy and how the Court will proceed in hearing cases and issuing opinions. These questions pertain to the constitutional role of the President and Senate in filling Supreme Court vacancies, whether and when the President and the Senate must act, and how the Supreme Court may proceed in hearing cases and issuing opinions with a vacant seat. This report provides answers to frequently asked legal...

The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress

Article V of the U.S. Constitution provides two ways to amend the nation’s fundamental charter. Congress, by a two-thirds vote of both houses, may propose amendments to the states for ratification, a procedure that has been used for all 27 current amendments. Alternatively, on the application of the legislatures of two-thirds of the states, 34 at present, Article V directs that Congress “shall call a Convention for proposing Amendments....” This alternative, known as an “Article V Convention,” has yet to be implemented. This report examines the Article V Convention alternative, focusing on...

Burma’s 2015 Parliamentary Elections: Issues for Congress

The landslide victory of Aung San Suu Kyi’s National League for Democracy (NLD) in Burma’s November 2015 parliamentary elections may prove to be a major step in the nation’s potential transition to a more democratic government. Having won nearly 80% of the contested seats in the election, the NLD has a majority in both chambers of the Union Parliament, which gave it the ability to select the President-elect, as well as control of most of the nation’s Regional and State Parliaments.

Burma’s 2008 constitution, however, grants the Burmese military, or Tatmadaw, widespread powers in the...

Justice Antonin Scalia: His Jurisprudence and His Impact on the Court

On February 13, 2016, Justice Antonin Scalia passed away unexpectedly at the age of 79, vacating a seat on the Supreme Court which he had held for nearly 30 years. Justice Scalia’s lengthy tenure on the Court, coupled with his strongly held views on how constitutional and statutory texts are to be interpreted, led him to have significant influence on the development of the jurisprudence of various areas of law. He was also an active speaker and author outside the Court, having, among other things, recently coauthored a book which sought to articulate interpretative canons that would, in...

Poland and Its Relations with the United States

Over the past 25 years, the relationship between the United States and Poland has been close and cooperative. The United States strongly supported Poland’s accession to the North Atlantic Treaty Organization (NATO) in 1999 and backed its entry into the European Union (EU) in 2004. In recent years, Poland has made significant contributions to U.S.- and NATO-led military operations in Iraq and Afghanistan, and Poland and the United States continue working together on issues such as democracy promotion, counterterrorism, and improving NATO capabilities.

Given its role as a close U.S. ally...

Expedited Removal Authority for VA Senior Executives (38 U.S.C. § 713): Selected Legal Issues

This report discusses selected legal issues relating to the authority for summary removal of individuals in senior executive positions at the Department of Veterans Affairs. Section 707 of the Veterans Access, Choice, and Accountability Act, P.L. 113-146, enacted on August 7, 2014, created this authority by adding Section 713 to Title 38 of the United States Code. It authorizes the Secretary of Veterans Affairs to remove an individual in a senior executive position from federal service or transfer him or her to a position in the General Schedule if the Secretary determines that the...

The Death of Justice Scalia: Procedural Issues Arising on an Eight-Member Supreme Court

On February 13, 2016, Justice Antonin Scalia unexpectedly passed away at the age of 79, vacating a seat on the Supreme Court that he had held for nearly 30 years. Supreme Court vacancies that arise in presidential election years rarely occur, and have in the past led to a seat on the Court staying open for extended periods of time. With suggestions that Justice Scalia’s successor may not be confirmed for several months, let alone before the fall election, a possibility exists that Justice Scalia’s seat on the High Court may remain open for an extended period of time, including throughout...

Federal Capital Offenses: An Overview of Substantive and Procedural Law

Murder is a federal capital offense if committed in any of more than 50 jurisdictional settings. The Constitution defines the circumstances under which the death penalty may be considered a sentencing option. With an eye to those constitutional boundaries, the Federal Death Penalty Act and related statutory provisions govern the procedures under which the death penalty may be imposed.

Some defendants are ineligible for the death penalty regardless of the crimes with which they are accused. Children and those incompetent to stand trial may not face the death penalty; pregnant women and the...

Federal Capital Offenses: An Abridged Overview of Substantive and Procedural Law

Murder is a federal capital offense if committed in any of more than 50 jurisdictional settings. The Constitution defines the circumstances under which the death penalty may be considered a sentencing option. With an eye to those constitutional boundaries, the Federal Death Penalty Act and related statutory provisions govern the procedures under which the death penalty may be imposed.

Some defendants are ineligible for the death penalty regardless of the crimes with which they are accused. Children and those incompetent to stand trial may not face the death penalty; pregnant women and the...

Amending Senate Rules at the Start of a New Congress, 1953-1975: An Analysis with an Afterword to 2015

The filibuster (extended debate) is the Senate’s most well-known procedure. Hollywood even highlighted its use in a famous 1939 movie entitled Mr. Smith Goes to Washington, starring actor Jimmy Stewart in the title role of Senator Jefferson Smith. Lengthy debate has many virtues (informing the public, for example) but the blocking potential of interminable debate has often made the filibuster a target for change by reform-minded Senators. Rule XXII requires 60 votes of Senators duly chosen and sworn to end debate on measures or motions—“except on a measure or motion to amend the Senate...

General and Flag Officers in the U.S. Armed Forces: Background and Considerations for Congress

In the exercise of its constitutional authority over the Armed Forces, Congress has enacted an array of laws which govern important aspects of military officer personnel management, including appointments, assignments, grade structure, promotions, and separations. Some of these laws are directed specifically at the most senior military officers, known as general and flag officers (GFOs). Congress periodically reviews these laws and considers changes as it deems appropriate. Areas of congressional interest have included the number of GFOs authorized, the proportion of GFOs to the total...

The Fair Housing Act (FHA): A Legal Overview

The Fair Housing Act (FHA) was enacted “to provide, within constitutional limitations, for fair housing throughout the United States.” The original 1968 act prohibited discrimination on the basis of “race, color, religion, or national origin” in the sale or rental of housing, the financing of housing, or the provision of brokerage services. In 1974, the act was amended to add sex discrimination to the list of prohibited activities. The last major change to the act occurred in 1988 when it was amended to prohibit discrimination on the additional grounds of physical and mental handicap, as...

Federal Conspiracy Law: A Brief Overview

Zacarias Moussaoui, members of the Colombian drug cartels, members of organized crime, and some of the former Enron executives have at least one thing in common: they all have federal conspiracy convictions. The essence of conspiracy is an agreement of two or more persons to engage in some form of prohibited conduct. The crime is complete upon agreement, although some statutes require prosecutors to show that at least one of the conspirators has taken some concrete step or committed some overt act in furtherance of the scheme. There are dozens of federal conspiracy statutes. One, 18 U.S.C....

Federal Conspiracy Law: A Sketch

Zacarias Moussaoui, members of the Colombian drug cartels, members of organized crime, and some of the former Enron executives have at least one thing in common: they all have federal conspiracy convictions. The essence of conspiracy is an agreement of two or more persons to engage in some form of prohibited conduct. The crime is complete upon agreement, although some statutes require prosecutors to show that at least one of the conspirators has taken some concrete step or committed some overt act in furtherance of the scheme. There are dozens of federal conspiracy statutes. One, 18 U.S.C....

Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

The Constitution sets out three eligibility requirements to be President: one must be 35 years of age, a resident “within the United States” for 14 years, and a “natural born Citizen.” There is no Supreme Court case which has ruled specifically on a challenge to one’s eligibility to be President (although several cases have addressed the term “natural born” citizen), and this clause has been the subject of several legal and historical treatises over the years, as well as more recent litigation.

The term “natural born” citizen is not defined in the Constitution, and there is no discussion...

Separation of Powers: An Overview

Congress’s role and operation in national politics is fundamentally shaped by the design and structure of the governing institution in the Constitution. One of the key principles of the Constitution is separation of powers. The doctrine is rooted in a political philosophy that aims to keep power from consolidating in any single person or entity, and a key goal of the framers of the Constitution was to establish a governing system that diffused and divided power. These objectives were achieved institutionally through the design of the Constitution. The legislative, executive, and judicial...

The “8(a) Program” for Small Businesses Owned and Controlled by the Socially and Economically Disadvantaged: Legal Requirements and Issues

Commonly known as the “8(a) Program,” the Minority Small Business and Capital Ownership Development Program is one of several federal contracting programs for small businesses. The 8(a) Program provides participating small businesses with training, technical assistance, and contracting opportunities in the form of set-asides and sole-source awards. A “set-aside” is an acquisition in which only certain contractors may compete, while a sole-source award is a contract awarded, or proposed for award, without competition. In FY2014, the federal government spent over $16 billion on contracts and...

Social Security and Same-Sex Marriage: Post Obergefell v. Hodges

This report addresses eligibility for Social Security spousal benefits for individuals in a same-sex marriage.

Key Takeaways

Under the Social Security Act, eligibility for spousal benefits depends on the applicant’s marital status as defined by the laws of the state as interpreted by the courts of that state in which the Number Holder, the person on whose work record the benefit is based, is domiciled.

Section 3 of the Defense of Marriage Act (DOMA) had required that marriage be defined as the union of one man and one woman for the purpose of federal enactments, rendering individuals in a...

Free Exercise of Religion by Closely Held Corporations: Implications of Burwell v. Hobby Lobby Stores, Inc.

A 5-4 decision, issued over a highly critical dissent, Burwell v. Hobby Lobby Stores, Inc. resolved one of the many challenges raised in response to the contraceptive coverage requirement of the Affordable Care Act (ACA). Imputing the beliefs of owners of closely held corporations to such corporations, the U.S. Supreme Court found that closely held corporations that hold religious objections to certain contraceptive services cannot be required to provide coverage of those services in employee health plans. The Court’s decision was based on the protections offered under the federal...

Rules and Practices Governing Consideration of Revenue Legislation in the House and Senate

The term revenue is defined as funds collected from the public that arise from the government’s exercise of its sovereign or governmental powers. Federal revenues come from a variety of sources, including individual and corporate income taxes, excise taxes, customs duties, estate and gift taxes, fees and fines, payroll taxes for social insurance programs, and miscellaneous receipts (such as earnings of the Federal Reserve System, donations, and bequests). The executive branch often uses the term receipts or governmental receipts in place of the term revenues.

The collection of revenue is...

Apportioning Seats in the U.S. House of Representatives Using the 2013 Estimated Citizen Population

Congressional apportionment is the process of determining the number of Representatives to which each state is entitled in the U.S. House of Representatives based on the decennial census of population. Congressional redistricting, often confused with apportionment, is the process of revising the geographic boundaries of areas from which voters elect Representatives to the House. The apportionment process is a function of four factors: (1) population size, (2) the number of Representatives or seats to be apportioned, (3) the number of states, and (4) the method of apportionment.

Recently,...

Police Use of Force: Rules, Remedies, and Reforms

Several high-profile police shootings and other law enforcement-related deaths in the United States have sparked intense protests throughout the country and a fierce debate in Congress concerning the appropriate level of force police officers should wield in a society that equally values public safety and the lives of each of its citizens under law. These incidents have been the subject of several congressional hearings, have prompted the introduction of various legislative measures, and have catalyzed a new civil rights movement in the United States aimed at reforming the criminal justice...

Impeachment and Removal

The impeachment process provides a mechanism for removal of the President, Vice President, and other “civil Officers of the United States” found to have engaged in “treason, bribery, or other high crimes and misdemeanors.” The Constitution places the responsibility and authority to determine whether to impeach an individual in the hands of the House of Representatives. Should a simple majority of the House approve articles of impeachment specifying the grounds upon which the impeachment is based, the matter is then presented to the Senate, to which the Constitution provides the sole power...

Birthright Citizenship and Children Born in the United States to Alien Parents: An Overview of the Legal Debate

The first clause of the Fourteenth Amendment to the U.S. Constitution, known as the Citizenship Clause, provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This generally has been taken to mean that any person born in the United States automatically gains U.S. citizenship, regardless of the citizenship or immigration status of the person’s parents, with limited exceptions such as children born to recognized foreign diplomats. The current rule is often called...

Recognition of Same-Sex Marriage: Implications for Religious Objections

The U.S. Supreme Court’s landmark decision in Obergefell v. Hodges in June 2015 held that the Fourteenth Amendment of the U.S. Constitution required states to issue marriage licenses to same-sex couples and to recognize same-sex marriages formed in other states. The Court’s decision in Obergefell does not directly address incidental claims related to religious freedom in the context of same-sex marriage. However, the case has generated a number of other questions regarding potential implications of the Court’s decision, particularly with respect to the rights of individuals or entities...

Points of Order in the Congressional Budget Process

The Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, as amended) created a process that Congress uses each year to establish and enforce the parameters for budgetary legislation. Enforcement of budgetary decisions is accomplished through the use of points of order, and through the reconciliation process. Points of order are prohibitions against certain types of legislation or congressional actions. These prohibitions are enforced when a Member raises a point of order against legislation that may violate these rules when it is considered by the House or Senate.

This report...

Federal Aid for Reconstruction of Houses of Worship: A Legal Analysis

In late October 2012, Hurricane Sandy struck the East Coast of the United States, causing severe damage to the mid-Atlantic and northeast regions of the country. The resulting destruction led to major disaster declarations in 12 states and the District of Columbia, making those states eligible for certain federal supplemental assistance to aid in the recovery process. The damage resulting from Hurricane Sandy devastated a wide range of communities, and many individuals and organizations sought federal assistance for recovery, including churches, which, in turn, raised constitutional...

Federal Affirmative Action Law: A Brief History

Affirmative action remains a subject of public debate as the result of legal and political developments at the federal, state, and local levels. Over the years, federal courts have reviewed minority admissions programs to state universities; scrutinized the constitutional status of racial diversity policies in public elementary and secondary schools; ruled on minority preferences in public and private employment as a remedy for violation of civil and constitutional rights; and considered federal, state, and local efforts to increase minority participation as contractors and subcontractors...

Conflict Minerals and Resource Extraction: Dodd-Frank, SEC Regulations, and Legal Challenges

Two sections of the Dodd-Frank Wall Street Reform and Protection Act (Dodd-Frank) require that the Securities and Exchange Commission (SEC or Commission) issue regulations to make public the involvement of U.S. companies in conflict minerals and in resource extraction payments. Both sections have been subject to litigation. As of the date of this report, the rules pursuant to Section 1502 are in effect, with the exception of the disclosure requirements being reviewed by the Court of Appeals for the D.C. Circuit. The SEC continues its rulemaking proceedings under Section 1504.

Key Takeaways...

“Amazon Laws” and Taxation of Internet Sales: Constitutional Analysis

As more purchases are made over the Internet, states are looking for new ways to collect taxes on online sales. There is a common misperception that the U.S. Constitution prohibits states from taxing Internet sales. This is not true. States may impose sales and use taxes on such transactions, even when the retailer is outside the state. However, if the seller does not have a constitutionally sufficient connection (“nexus”) to the state, then the seller is under no enforceable obligation to collect the tax and remit it to the state. The purchaser is still generally responsible for paying...

Taxation of Internet Sales and Access: Legal Issues

In recent years, there has been significant congressional interest in the states’ ability to impose sales and use taxes on sales made over the Internet. While these taxes are imposed on the consumer, states generally prefer that retailers collect and remit them, rather than relying on the consumer to pay the tax. State laws requiring retailers to collect sales and use taxes are subject to federal law. First, such laws must comply with the U.S. Constitution, of which two provisions are particularly relevant—the dormant Commerce Clause and the Fourteenth Amendment’s Due Process Clause....

Constitutional Implications of State GE Food Labeling Laws

The labeling of genetically engineered (GE) foods, sometimes referred to as genetically modified foods (GMO foods), has been the subject of debate among members of the general public, industry participants, and federal and state governments. Grocery Manufacturers Association v. Sorrell serves as a case study on the constitutional implications of state GE food labeling laws and provides some insight on the judicial consideration of GE labeling as Congress considers GE labeling legislation in the 114th Congress.

Key Takeaways of This Report

The Food and Drug Administration (FDA) does not...

Mexico's Oil and Gas Sector: Background, Reform Efforts, and Implications for the United States

The future of oil and natural gas production in Mexico is of importance for both Mexico’s economic growth, as well as for U.S. energy security, a key congressional interest. Mexico is a top trade partner and the third-largest crude oil supplier to the United States. Mexico’s state oil company, Petroleos Mexicanos (Pemex) remains an important source of government revenue even as it is struggling to counter declining oil production and reserves. Due to an inability to meet rising demand, Mexico has also significantly increased natural gas imports from the United States. Still, gas shortages...

Zivotofsky v. Kerry: The Jerusalem Passport Case and Its Potential Implications for Congress’s Foreign Affairs Powers

The Supreme Court in its last term by a vote of 6-3 invalidated a statute passed by Congress touching on the status of Jerusalem, affirming the U.S. Court of Appeals for the D.C. Circuit decision in Zivotofsky v. Secretary of State that the President’s power to recognize foreign sovereigns is exclusive and trumps Congress’s authority to regulate passports. The Court’s decision in Zivotofsky v. Kerry (Zivotofsky II) represents the first time the Court has struck down a congressionally enacted law on the basis of a separation-of-powers infringement involving a matter of foreign affairs. At...

Disparate Impact Claims Under the Fair Housing Act

The Fair Housing Act (FHA) was enacted “to provide, within constitutional limitations, for fair housing throughout the United States.” It prohibits discrimination on the basis of race, color, religion, national origin, sex, physical and mental handicap, and familial status. Subject to certain exemptions, the FHA applies to all sorts of housing, public and private, including single family homes, apartments, condominiums, and mobile homes. It also applies to “residential real estate-related transactions,” which include both the “making [and] purchasing of loans ... secured by residential...

Queen-of-the-Hill Rules in the House of Representatives

Congressional Research Service 7-5700 www.crs.gov RS20313 Contents Special Rules and the Amending Process 1 King-of-the-Hill: Predecessor to Queen-of-the-Hill 1 Queen-of-the-Hill 2

Tables Table 1. Queen-of-the-Hill Rules 2

Contacts Author Contact Information 2

Summary A special rule is a House resolution intended to regulate floor consideration of a specific legislative measure named in the resolution. When adopted by the House, the requirements prescribed by a special rule can supersede the standing rules of the House (as well as rulemaking provisions in statutes such as the...

Human Rights in China and U.S. Policy: Issues for the 114th Congress

This report examines human rights issues in the People’s Republic of China (PRC), including ongoing rights abuses, and legal developments. Major events of the past two years include a clampdown on political dissent and civil society and an escalation of violence in Xinjiang, which many experts attribute at least in part to repressive government policies. Some observers view the closing of the “Re-education Through Labor” penal system as a potentially positive development, although many PRC citizens still are subject to various forms of extra-legal detention. Other, ongoing human rights...

The President Pro Tempore of the Senate: History and Authority of the Office

The U.S. Constitution establishes the office of the President pro tempore of the Senate to preside over the Senate in the Vice President’s absence. Since 1947, the President pro tempore has stood third in line to succeed to the presidency after the Vice President and the Speaker of the House.

Although the President pro tempore’s powers are limited and not comparable to those of the Speaker of the House, as the chamber’s presiding officer, he is authorized to perform certain duties. For example, he may decide points of order (subject to appeal) and enforce decorum in the Senate chamber and...

Expedited Procedures in the House: Variations Enacted into Law

Congressional Research Service 7-5700 www.crs.gov RL30599 Summary Congress enacts expedited, or fast-track, procedures into law when it wants to increase the likelihood that one or both houses of Congress will vote in a timely way on a certain measure or kind of measure. These procedures are enacted as rule-making provisions of law pursuant to the constitutional power of each house to adopt its own rules. The house to which a set of expedited procedures applies may act unilaterally to waive, suspend, amend, or repeal them. Sets of expedited procedures, as they affect the House of...

Federal Mandatory Minimum Sentencing: The 18 U.S.C. 924(c) Tack-On in Cases Involving Drugs or Violence

Section 924(c) requires the imposition of one of a series of mandatory minimum terms of imprisonment upon conviction for misconduct involving the firearm and the commission of a federal crime of violence or a federal drug trafficking offense. The terms vary according to the type of firearm used, the manner of the firearm’s involvement, and whether the conviction involves a single, first-time offense. Liability extends to co-conspirators and to those who aid or abet in the commission of a violation of the section.

If a machine gun, silencer, short barreled rifle, short barreled shotgun, or...

Affirmative Action and Diversity in Public Education: Legal Developments

Almost four decades after the Supreme Court ruling in Regents of the University of California v. Bakke, the diversity rationale for affirmative action in public education remains a topic of political and legal controversy. Many colleges and universities have implemented affirmative action policies not only to remedy past discrimination, but also to achieve a racially and ethnically diverse student body or faculty. Justice Powell, in his opinion for the Bakke Court, stated that the attainment of a diverse student body is “a constitutionally permissible goal for an institution of higher...

Statutory Qualifications for Executive Branch Positions

In the aftermath of Hurricane Katrina, some Members of Congress and others questioned the competence of leadership at the Federal Emergency Management Agency (FEMA). After investigating the federal response to the hurricane, the Senate Committee on Homeland Security and Governmental Affairs concluded that the agency’s leader had “lacked the leadership skills that were needed for his critical position.” In response, the Post-Katrina Emergency Management Reform Act of 2006 (P.L. 109-295, 120 Stat. 1394) stipulated that the FEMA Administrator, among other top agency leaders, must meet certain...

Intellectual Property Rights and International Trade

This report provides background on intellectual property rights (IPR) and discusses the role of U.S. international trade policy in enhancing IPR protection and enforcement abroad. IPR are legal rights granted by governments to encourage innovation and creative output by ensuring that creators reap the benefits of their inventions or works. They may take forms such as patents, trade secrets, copyrights, trademarks, or geographical indications. Congress has constitutional responsibility for legislating and overseeing IPR and international trade policy. Responsibility for developing IPR...

District of Columbia: A Brief Review of Provisions in District of Columbia Appropriations Acts Restricting the Funding of Abortion Services

Congressional Research Service 7-5700 www.crs.gov R41772 Summary The public funding of abortion services for District of Columbia residents is a perennial issue debated by Congress during its annual deliberations on District of Columbia appropriations. District officials have cited the prohibition on the use of District funds as another example of congressional intrusion into local matters. Since 1979, with the passage of the District of Columbia Appropriations Act of 1980, P.L. 96-93 (93 Stat. 719), Congress has placed some limitation or prohibition on the use of public (federal or...

Delegates to the U.S. Congress: History and Current Status

Congressional Research Service 7-5700 www.crs.gov R40555 Summary Delegates, representing territories that had not yet achieved statehood, have served in the House since the late 1700s. In the 20th century, the concept of delegate grew to include representation of territories where the United States exercises some degree of control but were not expected to become states. In the 114th Congress, the U.S. insular areas of American Samoa, Guam, the Northern Mariana Islands, the Virgin Islands, and the federal municipality of the District of Columbia are each represented in Congress by a...

Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions

Congressional Research Service 7-5700 www.crs.gov R41326 Summary Federal law requires a sentencing judge to impose a minimum sentence of imprisonment following conviction for any of a number of federal offenses. Congress has created two exceptions. One is available in all cases when the prosecutor asserts that the defendant has provided substantial assistance in the criminal investigation or prosecution of another, 18 U.S.C. 3553(e). The other, commonly referred to as the safety value, is available, without the government’s approval, for a handful of the more commonly prosecuted drug...

The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues

Congressional Research Service 7-5700 www.crs.gov R41933 Summary The Freedom of Information Act (FOIA; 5 U.S.C. §552) allows any person—individual or corporate, citizen or not—to request and obtain existing, identifiable, and unpublished agency records on any topic. Pursuant to FOIA, the public has presumptive access to agency records unless the material falls within any of FOIA’s nine categories of exception. Disputes over the release of records requested pursuant to FOIA can be appealed administratively, resolved through mediation, or heard in court. FOIA was enacted in 1966, after 11...

Lobbying Congress with Appropriated Funds: Restrictions on Federal Agencies and Officials

Congressional Research Service 7-5700 www.crs.gov R44154 Summary Congress, under its authority to direct and control the use and expenditure of the funds that it appropriates from the U.S. Treasury, has enacted several specific and express limitations on the expenditure of federal appropriations. Some of these restrictions and prohibitions apply specifically to using federal appropriations for what is generally called “lobbying” of the Congress (or in some cases other government officials). Although these restrictions exist in both federal statutory laws as well as in yearly appropriations...

Obergefell v. Hodges: Same-Sex Marriage Legalized

On June 26, 2015, the Supreme Court issued its decision in Obergefell v. Hodges requiring states to issue marriage licenses to same-sex couples and to recognize same-sex marriages that were legally formed in other states. In doing so, the Court resolved a circuit split regarding the constitutionality of state same-sex marriage bans and legalized same-sex marriage throughout the country. The Court’s decision relied on the Fourteenth Amendment’s equal protection and due process guarantees.

Under the Fourteenth Amendment’s Equal Protection Clause, state action that classifies groups of...

Questions of the Privileges of the House: An Analysis

A question of the privileges of the House is a formal declaration by a Member of the House asserting that a situation has arisen affecting “the rights of the House collectively, its safety, dignity and the integrity of its proceedings.” Once a question of the privileges of the House is raised, the Speaker must, at some point, entertain the question and rule on its validity. The Speaker makes such a ruling with guidance from the House Parliamentarian based on House rule and precedent. If it is ruled to be valid, a question of the privileges of the House will be considered and possibly voted...

National Security Letters in Foreign Intelligence Investigations: A Glimpse at the Legal Background

Five federal statutes authorize intelligence officials to request certain business record information in connection with national security investigations. The authority to issue these national security letters (NSLs) is comparable to the authority to issue administrative subpoenas. The USA PATRIOT Act (P.L. 107-56) expanded the authority under the original four NSL statutes and created a fifth. Thereafter, the authority was reported to have been widely used. Then, a report by the Department of Justice’s Inspector General (IG) found that in its use of expanded USA PATRIOT Act authority the...

Thailand: Background and U.S. Relations

Thailand is a long-time military ally and a significant trade and economic partner for the United States. For many years, Thailand was seen as a model democracy in Southeast Asia, although this image, along with U.S.-Thai relations, has been complicated by deep political and economic instability in the wake of two military coups in the past nine years. The first, in 2006, displaced Prime Minister Thaksin Shinawatra, a popular but polarizing figure who is currently living in exile. The second, in 2014, deposed an acting prime minister after Thaksin’s sister, Yingluck Shinawatra, was ousted...

The Federal Tax Treatment of Married Same-Sex Couples

Since the Supreme Court’s ruling on the Defense of Marriage Act (DOMA) in 2013—in the case of United States v. Windsor—married same-sex couples have been considered married for federal tax purposes. The federal tax treatment of married same-sex couples was not affected by the recent June 26, 2015, ruling in Obergefell v. Hodges. Obergefell struck down state bans on same-sex marriage. As a result of the Court’s decision, all states must both permit same-sex couples to marry in their states and recognize same-sex marriages that were formed in other states.

The U.S. Supreme Court ruled in...

National Security Letters in Foreign Intelligence Investigations: Legal Background

Five federal statutes authorize intelligence officials to request certain business record information in connection with national security investigations. The authority to issue these national security letters (NSL) is comparable to the authority to issue administrative subpoenas. The USA PATRIOT Act (P.L. 107-56) expanded the authority under the original four NSL statutes and created a fifth. Thereafter, the authority was reported to have been widely used. Then, a report by the Department of Justice’s Inspector General (IG) found that in its use of expanded USA PATRIOT Act authority the...

Armed Career Criminal Act (18 U.S.C. 924(e)): An Overview

The Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), requires imposition of a mandatory minimum 15-year term of imprisonment for recidivists convicted of unlawful possession of a firearm under 18 U.S.C. 922(g), who have three prior state or federal convictions for violent felonies or serious drug offenses.

Section 924(e) defines serious drug offenses as those punishable by imprisonment for 10 years or more. It defines violent felonies as those (1) that have an element of threat, attempt, or use of physical force against another, (2) that involve burglary, arson, or extortion, or (3)...

The Voting Rights Act of 1965: Background and Overview

The Voting Rights Act (VRA) was successfully challenged in a June 2013 case decided by the U.S. Supreme Court in Shelby County, Alabama v. Holder. The suit challenged the constitutionality of Sections 4 and 5 of the VRA, under which certain jurisdictions with a history of racial discrimination in voting—mostly in the South—were required to “pre-clear” changes to the election process with the Justice Department (the U.S. Attorney General) or the U.S. District Court for the District of Columbia. The preclearance provision (Section 5) was based on a formula (Section 4) that considered voting...

Fair Pay and Safe Workplaces Executive Order: Questions and Answers

On July 31, 2014, President Obama issued Executive Order 13673, Fair Pay and Safe Workplaces, with the stated intent of “increas[ing] efficiency and cost savings in the work performed by parties who contract with the Federal Government by ensuring that they understand and comply with labor laws.” The order requires that executive branch procurement contractors disclose information about their compliance with 14 specified federal labor laws and their state equivalents as part of the award process. It also requires that agency contracting officers take these disclosures into consideration...

State and Local "Sanctuary" Policies Limiting Participation in Immigration Enforcement

While the power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, the impact of alien migration—whether lawful or unlawful—is arguably felt most directly in the communities where aliens settle. State and local responses to unlawfully present aliens within their jurisdictions have varied considerably, particularly as to the role that state and local police should play in enforcing federal immigration law. Some states, cities, and other municipalities have sought to play an active role in immigration...

District of Columbia: Issues in the 114th Congress

In the coming weeks and months the 114th Congress will debate a number of funding, governance, and constitutional issues affecting the District of Columbia, including budget and legislative autonomy, voting representation in the national legislature, federal appropriations, and congressionally supported education initiatives. In addition, Congress may consider measures intended to void or otherwise modify acts and initiatives approved by District citizens and their elected representatives. The mechanisms available to Congress in carrying out its oversight of District affairs include...

Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy

Legislation to reauthorize Trade Promotion Authority (“TPA”), sometimes called “fast track,” was signed by President Obama on June 29, 2015 (P.L. 114-26). It was introduced as the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (TPA-2015; H.R. 1890/S. 995) on April 16, 2015. The legislation was reported by the Senate Finance Committee on April 22, 2015, and by the House Ways and Means Committee the next day. TPA, as incorporated into H.R. 1314 by substitute amendment, passed the Senate on May 22 by a vote of 62-37. In the House of Representatives, the measure was...

Burma's Parliament Defeats Constitutional Amendments

This report discusses the recent defeat of 5 proposed constitutional amendments in Burma that arguably could have advanced democratic reforms in which Congress has shown an interest.

Turkey After June 2015 Elections: Erdogan and the AKP Fall Short

This report discusses the parliamentary politics of Turkey in the wake of elections held on June 7, 2015. Although Turkey's Islamist-rooted Justice and Development Party (AKP) won the most seats in parliamentary elections, it lost the governing majority it had enjoyed since 2002--probably ending President Recep Tayyip Erdogan's (air-doe-wan) hopes for constitutional change to increase his formal powers.

Campaign Finance: Constitutionality of Limits on Contributions and Expenditures

The First Amendment to the U.S. Constitution provides that “Congress shall make no law ... abridging the freedom of speech, or of the press.” This provision limits the government’s power to restrict speech. In 1976, the Supreme Court issued its landmark campaign finance ruling in Buckley v. Valeo. In Buckley, the Court determined that limits on campaign contributions, which involve giving money to an entity, and expenditures, which involve spending money directly for electoral advocacy, implicate rights of political expression and association under the First Amendment. In view of the fact...

Congressional Power to Create Federal Courts: A Legal Overview

The U.S. Constitution established only one federal court—the U.S. Supreme Court. Beyond this, Article III of the Constitution left it to the discretion of Congress to “ordain and establish” lower federal courts to conduct the judicial business of the federal government. From the very first, Congress established a host of different federal tribunals to adjudicate a variety of legal disputes. The two central types of federal “courts”—courts established under Article III and those tribunals that are not—differ in many respects, including with regard to their personnel, purposes, and...

Procurement Debarment and Suspension of Government Contractors: Legal Overview

Debarment and suspension (collectively known as “exclusion”) are of perennial interest to Congress because exclusion is one of the primary techniques that federal agencies use to avoid dealings with vendors who have failed, or are deemed likely to fail, to meet their obligations under federal law or government contracts. Debarred contractors are generally ineligible for new federal contracts for a fixed period of time, while suspended contractors are generally ineligible for the duration of any investigation or litigation involving their conduct. Federal law specifies various grounds for...

Overview of Constitutional Challenges to NSA Collection Activities

Beginning in summer 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been widely published. The reports have focused on two main NSA collection activities approved by the Foreign Intelligence Surveillance Court (FISC) established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States,...

Agricultural Disaster Assistance

This report briefly discusses the federal grand jury, which exists to investigate crimes against the United States and to secure the constitutional right of grand jury indictment.

United Nations Reform: Background and Issues for Congress

Since its establishment in 1945, the United Nations (U.N.) has undergone numerous reforms as international stakeholders seek ways to improve the efficiency and effectiveness of the U.N. system. During the past two decades, controversies such as corruption in the Iraq Oil-For-Food Program, allegations of sexual abuse by U.N. peacekeepers, and instances of waste, fraud, and abuse by U.N. staff have focused attention on the need for change and improvement of the United Nations. Many in the international community, including the United States, continue to promote substantive reforms. The 114th...

The Federal Grand Jury

The federal grand jury exists to investigate crimes against the United States and to secure the constitutional right of grand jury indictment. Its responsibilities require broad powers.

As an arm of the U.S. District Court which summons it, upon whose process it relies, and which will receive any indictments it returns, the grand jury’s subject matter and geographical jurisdiction is that of the court to which it is attached.

As a general rule, the law is entitled to everyone’s evidence. Witnesses subpoenaed to appear before the grand jury, therefore, will find little to excuse their...

Immigration Detainers: Legal Issues

An “immigration detainer” is a document by which U.S. Immigration and Customs Enforcement (ICE) advises other law enforcement agencies of its interest in individual aliens whom these agencies are detaining. ICE and its predecessor, the Immigration and Naturalization Service (INS), have used detainers as one means of obtaining custody of aliens for removal proceedings since at least 1950. ICE’s implementation of the Secure Communities program in the period between 2008 and 2014 raised numerous questions about detainers. This program relied upon information sharing between various levels and...

Congressional Redistricting and the Voting Rights Act: A Legal Overview

The Constitution requires a count of the U.S. population every 10 years. Based on the census, the number of seats in the House of Representatives is reapportioned among the states. Thus, at least every 10 years, in response to changes in the number of Representatives apportioned to it or to shifts in its population, each state is required to draw new boundaries for its congressional districts. Although each state has its own process for redistricting, congressional districts must conform to a number of constitutional and federal statutory standards, including the Voting Rights Act (VRA) of...

Same-Sex Marriage: A Legal Overview

Same-sex marriage has engendered heated debate throughout the country. There is no federal same-sex marriage prohibition after the Supreme Court’s decision in United States v. Windsor, which struck down the portion of the Defense of Marriage Act that defined marriage as a union between a man and a woman. However, many states have passed statutes or constitutional amendments that prohibit same-sex couples from marrying, and that deny recognition of same-sex marriages that were legally formed in other states. These state same-sex marriage bans may impact gay individuals’ rights and claims to...

Status of a Senator Who Has Been Indicted for or Convicted of a Felony

There are no federal statutes or Rules of the Senate that directly affect the status of a Senator who has been indicted for a crime that constitutes a felony. No rights or privileges are forfeited under the Constitution, statutory law, nor the Rules of the Senate upon an indictment. Under the Rules of the Senate, therefore, an indicted Senator may continue to participate in congressional proceedings and considerations. Under the United States Constitution, a person under indictment is not disqualified from being a Member of or a candidate for reelection to Congress. Internal party rules in...

Domestic Drones and Privacy: A Primer

It has been three years since Congress enacted the FAA Modernization and Reform Act of 2012 (FMRA), calling for the integration of unmanned aircraft systems (UAS), or “drones,” into the national airspace by September 2015. During that time, the substantive legal privacy framework relating to UAS on the federal level has remained relatively static: Congress has enacted no law explicitly regulating the potential privacy impacts of drone flights, the courts have had no occasion to rule on the constitutionality of drone surveillance, and the Federal Aviation Administration (FAA) did not...

Social Security and Same-Sex Marriage: Frequently Asked Questions

In United States v. Windsor, the U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional, finding, in part, that it violated the Constitution’s equal protection and substantive due process guarantees. Section 3 had required that marriage be defined as the union of one man and one woman for the purpose of federal enactments. According to the court, federal statutes that refer to a marriage for federal purposes should be interpreted as applying equally to married same-sex couples. The Court did not address Section 2 of DOMA, which allows individual...

Offices and Officials in the Senate: Roles and Duties

Article I, Section 3, clause 5 of the United States Constitution authorizes the Senate to choose its own officers, but does not specify their titles, roles, or duties.

This report provides a brief overview of the Senate’s elected and appointed administrative officers and officials, including their authorities, history, and main responsibilities. These officers and officials include the Secretary of the Senate, Sergeant at Arms, Chaplain, Secretary for the Majority, Secretary for the Minority, Legal Counsel, Legislative Counsel, and Parliamentarian.

Dominican Republic: Background and U.S. Relations

The Dominican Republic, a country of roughly 10.3 million people that shares the Caribbean island of Hispaniola with Haiti, is a close U.S. trade partner and political ally in Latin America. The United States is the Dominican Republic’s main trading partner, with two-way trade totaling more than $12.5 billion in 2014. In addition to trade, U.S. interest in the Dominican Republic has recently focused on anti-drug cooperation and governance/human rights issues, particularly as they relate to Haiti. U.S.-Dominican cooperation on bilateral and regional issues intensified during Leonel...

Conducting Foreign Relations Without Authority: The Logan Act

The Logan Act, codified at 18 U.S.C. § 953, states:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign...

Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits

For decades, federal policymakers and state administrators of governmental assistance programs, such as the Temporary Assistance for Needy Families (TANF) block grants (formerly Aid to Families with Dependent Children (AFDC)), the Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps), the Section 8 Housing Choice Voucher program, and their precursors, have expressed concern about the “moral character” and worthiness of beneficiaries. For example, the Anti-Drug Abuse Act of 1988 made individuals who have three or more convictions for certain drug-related offenses...

Supervised Release (Parole): An Overview of Federal Law

Supervised release replaces parole for federal crimes committed after November 1, 1987. Like parole, supervised release is a term of restricted freedom following a defendant’s release from prison. The nature of supervision and the conditions imposed during supervised release are also similar to those that applied in the old system of parole. However, whereas parole functions in lieu of a remaining prison term, supervised release begins only after a defendant has completed his full prison sentence. Where revocation of parole could lead to a return to prison to finish out a defendant’s...

Supervised Release (Parole): An Abbreviated Outline of Federal Law

Supervised release replaces parole for federal crimes committed after November 1, 1987. Like parole, supervised release is a term of restricted freedom following an offender’s release from prison. The nature of supervision and the conditions imposed during supervised release are also similar to those that applied in the old system of parole. However, whereas parole functions in lieu of a remaining prison term, supervised release begins only after an offender has completed his full prison sentence.

A sentencing court determines the duration and conditions for an offender’s supervised...

Asset Forfeiture: Selected Legal Issues and Reforms

From its beginning in the First Congress, Congress has viewed asset forfeiture as an integral part of federal crime fighting: It takes contraband off the streets, ensures that “crime doesn’t pay,” and deprives criminals of their “tools of the trade.” In short, asset forfeiture is the process of confiscating money or property from a person because it is illegal to possess, it constitutes proceeds of a crime, or it was used to facilitate a crime. Asset forfeiture became a major tool in combating organized crime, drug trafficking, and other serious federal offenses throughout the mid-to-late...

Qualifications of Members of Congress

There are three, and only three, standing qualifications for U.S. Senator or Representative in Congress which are expressly set out in the U.S. Constitution: age (25 for the House, 30 for the Senate); citizenship (at least seven years for the House, nine years for the Senate); and inhabitancy in the state at the time elected. U.S. Constitution, Article I, Section 2, cl. 2 (House); and Article I, Section 3, cl. 3 (Senate). The Supreme Court of the United States has affirmed the historical understanding that the Constitution provides the exclusive qualifications to be a Member of Congress,...

Social Security Reform: Legal Analysis of Social Security Benefit Entitlement Issues

Calculations indicating that the Social Security program will not be financially sustainable in the long run under the present statutory scheme have fueled the current debate regarding Social Security reform. This report addresses selected legal issues that may be raised regarding entitlement to Social Security benefits as Congress considers possible changes to the Social Security program in view of projected long-range shortfalls in the Social Security Trust Funds.

Social Security is a statutory entitlement program. Beneficiaries have a legal entitlement to receive Social Security...

Afghanistan: Politics, Elections, and Government Performance

The capacity, transparency, legitimacy, and cohesiveness of Afghan governance are crucial to Afghan stability as nearly all international forces exit Afghanistan by the end of 2016. The size and capability of the Afghan governing structure has increased significantly since the Taliban regime fell in late 2001, but the government remains rife with corruption and ethnic and political tensions among its major factions are ever present. Its recent elections have been marred by allegations of vast fraud and resulting post-election political crises.

Hamid Karzai, who served as president since...

China/Taiwan: Evolution of the “One China” Policy—Key Statements from Washington, Beijing, and Taipei

Despite broadly consistent statements, the U.S. “one China” policy concerning Taiwan remains somewhat ambiguous and subject to different interpretations. Apart from questions about what the policy entails, issues have arisen about whether U.S. Presidents have stated clear positions and have changed or should change policy, affecting U.S. interests in security and democracy. This CRS Report, updated through the 113th Congress, analyzes the “one China” policy since U.S. Presidents began in 1971 to reach understandings with the People’s Republic of China (PRC). Taiwan calls itself the...

Constitutional Authorities Under Which Congress Regulates State Taxation

A variety of clauses in the U.S. Constitution provide direct and implicit authority for Congress to enact legislation affecting the ability of states to impose taxes, and Congress has acted under several of them. In some situations, Congress has restricted the states’ taxing power, such as by prohibiting them from taxing certain activities. In others, it has expanded the states’ ability to tax, such as by waiving federal immunity to state taxation in specific circumstances.

Chief among these authorities is the Commerce Clause, which provides Congress with the authority to regulate...

Secret Sessions of the House and Senate: Authority, Confidentiality, and Frequency

Secret, or closed, sessions of the House and Senate exclude the press and the public. They may be held for matters deemed to require confidentiality and secrecy—such as national security, sensitive communications received from the President, and Senate deliberations during impeachment trials. Although Members usually seek advance agreement for going into secret session, any Member of Congress may request a secret session without notice. When the House or Senate goes into secret session, its chamber and galleries are cleared of everyone except Members and officers and employees specified in...

Definitions of “Inherently Governmental Function” in Federal Procurement Law and Guidance

Functions that federal law and policy require to be performed by government personnel, not contractor employees, are known as “inherently governmental functions.” Such functions have been a topic of interest in recent Congresses, in part, because of questions about sourcing policy (i.e., whether specific functions should be performed by government personnel or contractor employees). There have also been questions about the various definitions of inherently governmental function given in federal law and policy and, particularly, whether the existence of multiple definitions of this term may...

The Political Question Doctrine: Justiciability and the Separation of Powers

Article III of the Constitution restricts the jurisdiction of federal courts to deciding actual “Cases” and “Controversies.” The Supreme Court has articulated several “justiciability” doctrines emanating from Article III that restrict when federal courts will adjudicate disputes. One justiciability concept is the political question doctrine, according to which federal courts will not adjudicate certain controversies because their resolution is more proper within the political branches. Because of the potential implications for the separation of powers when courts decline to adjudicate...

Congressional Oversight Manual

The Congressional Research Service (CRS) developed the Congressional Oversight Manual over 30 years ago, following a three-day December 1978 Workshop on Congressional Oversight and Investigations. The workshop was organized by a group of House and Senate committee aides from both parties and CRS at the request of the bipartisan House leadership. The Manual was produced by CRS with the assistance of a number of House committee staffers. In subsequent years, CRS has sponsored and conducted various oversight seminars for House and Senate staff and updated the Manual as circumstances...

Ebola: Selected Legal Issues

Several West African countries are currently grappling with an unprecedented outbreak of Ebola virus disease (EVD). Here in the United States, where Ebola is not endemic, a handful of EVD cases have been diagnosed, and domestic transmission of the virus has occurred in only two cases to date. This report provides a brief overview of selected legal issues regarding measures to prevent transmission of Ebola virus and the civil rights of individuals affected by the disease.

Quarantine and isolation are restrictions on a person’s movement, imposed to prevent the spread of contagious disease....

The Federal Trade Commission’s Regulation of Environmental Marketing Claims and Related Legal Issues

During the last few decades, consumers in the United States have shown a significant interest in purchasing consumer products and packaging that appear to be beneficial—or at least not harmful—to the natural environment. In response to consumers’ willingness to pay a premium for these products, manufacturers and others have increasingly touted the positive environmental attributes of their products in marketing materials, such as in advertising or on product labels. These environmental marketing claims may concern a single environmental attribute or relate to the environmental impacts of a...

The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress

The federal role in cybersecurity has been a topic of discussion and debate for over a decade. Despite significant legislative efforts in the 112th Congress on bills designed to improve the cybersecurity of U.S. critical infrastructure (CI), no legislation on that issue was enacted in that Congress. In an effort to address the issue in the absence of enacted legislation, the White House issued an executive order in February 2013. Citing repeated cyber-intrusions into critical infrastructure and growing cyberthreats, Executive Order 13636, Improving Critical Infrastructure Cybersecurity,...

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch

Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent times the contempt power has most often been employed in response to noncompliance with a duly issued congressional subpoena—whether in the form of a refusal to appear before a committee for purposes of...

Presidential Advisers’ Testimony Before Congressional Committees: An Overview

Since the beginning of the federal government, Presidents have called upon executive branch officials to provide them with advice regarding matters of policy and administration. While Cabinet members were among the first to play such a role, the creation of the Executive Office of the President (EOP) in 1939 and the various agencies located within that structure resulted in a large increase in the number and variety of presidential advisers. All senior staff members of the White House Office and the leaders of the various EOP agencies and instrumentalities could be said to serve as...

Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments

Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution. The vast majority of these disputes are resolved through political negotiation and accommodation. In fact, it was not until the Watergate-related lawsuits in the 1970s seeking access to President Nixon’s tapes that the existence of a presidential...

The National Popular Vote Initiative: Direct Election of the President by Interstate Compact

The National Popular Vote (NPV) initiative proposes an agreement among the states, an interstate compact that would effectively achieve direct popular election of the President and Vice President without a constitutional amendment. It relies on the Constitution’s grant of authority to the states in Article II, Section 1, to appoint presidential electors “in such Manner as the Legislature thereof may direct.... ” Any state that joins the NPV compact pledges to award all its electoral votes to the presidential ticket that wins the most popular votes nationwide, regardless of who wins in that...

The Ministerial Exception of the First Amendment: Employment Discrimination and Religious Organizations

Congress has enacted a number of federal laws banning discrimination in employment decisions, including hiring and firing of employees. For example, Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment if the discrimination is based on race, color, religion, national origin, or sex. The Americans with Disabilities Act (ADA) prohibits discrimination based on disability. The Age Discrimination in Employment Act prohibits discrimination in employment based on age. Exceptions in these laws for religious organizations have reflected long-standing recognition of the...

The Receipt of Gifts by Federal Employees in the Executive Branch

This report provides information on the federal statutes, regulations, and guidelines concerning the restrictions on the acceptance of gifts and things of value by officers or employees in the executive branch of the United States government. The laws and regulations on the receipt of “gifts” by executive branch personnel provide, generally, that an employee may not solicit or accept a gift: (1) if the gift is from a “prohibited source” or (2) if the gift is given because of the employee’s official position. A “prohibited source” under the regulations is one who seeks official action...

Congressional Authority to Direct How States Administer Elections

In the United States, states have primary responsibility for the administration of federal elections. The federal government, however, has significant authority to determine how these elections are run, and may direct states to implement such federal regulations as the federal government provides. This authority can extend to registration, voting, reporting of results, or even more fundamental aspects of the election process such as redistricting. This report focuses on Congress’s constitutional authority to regulate how states administer elections.

Congress’s authority to regulate a...

Federal and State Quarantine and Isolation Authority

In the wake of increasing fears about the spread of highly contagious diseases, federal, state, and local governments have become increasingly aware of the need for a comprehensive public health response to such events. An effective response could include the quarantine of persons exposed to infectious biological agents that are naturally occurring or released during a terrorist attack, the isolation of infected persons, and the quarantine of certain cities or neighborhoods.

The public health authority of the states derives from the police powers granted by their constitutions and reserved...

U.S. Military Action Against the Islamic State: Answers to Frequently Asked Legal Questions

Ongoing U.S. military operations against the Islamic State (which formerly referred to itself as the Islamic State of Iraq and the Levant, and is also commonly referred to as IS, ISIS, or ISIL) raise issues concerning the allocation of war powers between Congress and the President, including whether such operations have been (or are required to be) authorized by an act of Congress. In August 2014, President Obama ordered U.S. forces to commence airstrikes against IS targets in Iraq to assist the Iraqi government in combating the insurgent force, protect U.S. military and nonmilitary...

Statutory Interpretation: General Principles and Recent Trends

The exercise of the judicial power of the United States often requires that courts construe statutes to apply them in particular cases and controversies. Judicial interpretation of the meaning of a statute is authoritative in the matter before the court. Beyond this, the methodologies and approaches taken by the courts in discerning meaning can help guide legislative drafters, legislators, implementing agencies, and private parties.

The Supreme Court has expressed an interest “that Congress be able to legislate against a background of clear interpretive rules, so that it may know the...

Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings

As part of the conflict with Al Qaeda and the Taliban, the United States has captured and detained numerous persons believed to have been part of or associated with enemy forces. Over the years, federal courts have considered a multitude of petitions by or on behalf of suspected belligerents challenging aspects of U.S. detention policy. Although the Supreme Court has issued definitive rulings concerning several legal issues raised in the conflict with Al Qaeda and the Taliban, many others remain unresolved, with some the subject of ongoing litigation.

This report discusses major judicial...

Freedom of Speech and Press: Exceptions to the First Amendment

The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech, or of the press.” This language restricts government’s ability to constrain the speech of citizens. The prohibition on abridgment of the freedom of speech is not absolute. Certain types of speech may be prohibited outright. Some types of speech may be more easily constrained than others. Furthermore, speech may be more easily regulated depending upon the location at which it takes place.

This report provides an overview of the major exceptions to the First...

Postponement and Rescheduling of Elections to Federal Office

The prospect and potential for severe weather or other natural disasters, in addition to lingering hypotheticals about terrorist attacks directed at certain metropolitan areas, have brought attention to the possibility of postponing and/or the authority to postpone, cancel, or reschedule an election for federal office.

The United States Constitution does not provide in express language current authority for any federal official or institution to “postpone” an election for federal office. Although the Constitution does expressly delegate to the states the primary authority to administer...

Article III Standing and Congressional Suits Against the Executive Branch

On July 30, 2014, the House of Representatives passed H.Res. 676, authorizing the Speaker of the House to initiate a civil action against the President and/or executive branch officials or employees for their failure to act consistently with their duties under the Constitution or federal law in implementing the Patient Protection and Affordable Care Act (ACA). Speaker John Boehner has argued that such a suit is necessary to compel the President to follow his oath of office and comply with his constitutional responsibility to “take Care that the Laws be faithfully executed.” The Speaker has...

The Take Care Clause and Executive Discretion in the Enforcement of Law

The Take Care Clause would appear to stand for two, at times diametrically opposed propositions—one imposing a “duty” upon the President and the other viewing the Clause as a source of Presidential “power.” Primarily, the Take Care Clause has been interpreted as placing an obligation on both the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. However, the Supreme Court has also construed the Clause as ensuring Presidential control over the enforcement of federal law. As a result, courts generally will not review...

Congressional Participation in Article III Courts: Standing to Sue

In disputes between Congress and the executive, questions arise about Congress’s ability to turn to the federal courts for vindication of its powers and prerogatives, or for declarations that the executive is in violation of the law or the Constitution. This report seeks to provide an overview of Congress’s ability to participate in litigation before Article III courts. The report is limited to a discussion of Congress’s participation in litigation as either a plaintiff (e.g., the party initiating the suit alleging some sort of harm or violation of law) or as a third-party intervener...

Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues

One aspect of the broader debate over aliens who are present in the United States in violation of federal immigration law has been their eligibility for driver’s licenses and other forms of state-issued identification documents (IDs). The issuance of driver’s licenses has historically been considered a state matter, and states have taken a variety of approaches. Some have barred the issuance of driver’s licenses and other state-issued ID to unlawfully present aliens; others permit their issuance; and yet others instead grant unlawfully present aliens Certificates for Driving (CFDs) or...

The Doctrine of Constitutional Avoidance: A Legal Overview

Article III of the Constitution established the judicial branch of the United States, staffing the branch with life-tenured and salary-protected judges. Amongst the powers of the federal judiciary is the power of “judicial review”—that is, the power to invalidate the acts of other branches of government and the states that contravene the Constitution. The Framers of the Constitution established this “countermajoritarian” role for the judiciary to help protect the written Constitution and its principles against incursions from the political branches. The power of judicial review is both a...

Practical Implications of Noel Canning on the National Labor Relations Board: In Brief

On January 4, 2012, President Obama exercised his recess appointment power and appointed three individuals—Terrence F. Flynn, Sharon Block, and Richard F. Griffin, Jr.—to be members of the National Labor Relations Board (NLRB or Board). Whether the President had authority to make these appointments pursuant to the Recess Appointments Clause was at issue in the 2014 Supreme Court case National Labor Relations Board v. Noel Canning. The case marked the first time that the Court would examine the scope of the Recess Appointments Clause.

This report provides an overview of the Recess...

Recess Appointments: A Legal Overview

The U.S. Constitution explicitly provides the President with two methods of appointing officers of the United States. First, the Appointments Clause provides the President with the authority to make appointments with the advice and consent of the Senate. Specifically, Article II, Section 2, clause 2 states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and...

Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes

Recent disclosures concerning the size and scope of the National Security Agency’s (NSA) surveillance activities both in the United States and abroad have prompted a flurry of congressional activity aimed at reforming the foreign intelligence gathering process. While some measures would overhaul the substantive legal rules of the USA PATRIOT Act or other provisions of the Foreign Intelligence Surveillance Act (FISA), there are a host of bills designed to make procedural and operational changes to the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court that hears...

Bills of Attainder: The Constitutional Implications of Congress Legislating Narrowly

On occasion, Congress exercises its legislative authority regarding a specified individual, entity, or identifiable group in such a way as to raise constitutional concerns. In particular, the United States Constitution expressly prohibits the federal government from enacting bills of attainder, defined by the Supreme Court as a “law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” The basis for the prohibition arises from the separation of powers concern that the enforcement of a bill of...

Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

This report surveys existing law for legal issues that have arisen, or may arise in the future, on account of climate change and government responses thereto.

At the threshold of many climate-change-related lawsuits are two barriers—whether the plaintiff has standing to sue and whether the claim being made presents a political question. Both barriers have forced courts to apply amorphous standards in a new and complex context.

Efforts to mitigate climate change—i.e., reduce greenhouse gas (GHG) emissions—have spawned a host of legal issues. The Supreme Court resolved a big one in 2007: the...

Panama: Background and U.S. Relations

The Central American nation of Panama has had five successive elected civilian governments since its return to democratic rule in 1989, and a sixth is scheduled to assume power on July 1, 2014 with the inauguration of current Vice President Juan Carlos Varela as President. Hailing from the center-right Panameñista Party, Varela won the May 4, 2014 presidential election with 39% of the vote in a three-candidate race. Significantly, Varela defeated the candidate of the ruling Democratic Change party of current President Ricardo Martinelli, who was constitutionally prohibited from running for...

Prayer and Religious Expression in Public Institutions: A Constitutional Analysis

The First Amendment of the U.S. Constitution prohibits the government from providing official support or endorsement of religion and from interfering with individuals’ exercise of religion. Balancing the constitutional protections under the Establishment and Free Exercise Clauses, as these provisions are known, often leads to questions regarding the extent to which religious activities may occur within public institutions or at public events. On one hand, permitting prayer at publicly sponsored activities arguably may suggest official support for religion. On the other hand, restricting...

Bond v. United States: Validity and Construction of the Federal Chemical Weapons Statute

The Chemical Weapons Convention obligates the United States to outlaw the use, production, and retention of weapons consisting of toxic chemicals. The Chemical Weapons Convention Implementation Act outlaws the possession or use of toxic chemicals, except for peaceful purposes. In Bond v. United States, the Supreme Court concluded that Congress had not intended the Act to reach a “run of the mill” assault case using a skin irritating chemical.

Carol Anne Bond, upon discovering that her husband had impregnated another woman, repeatedly dusted the woman’s mail box, front door knob, and car...

Office of Senate Legal Counsel

The Office of Senate Legal Counsel provides legal assistance and representation to Senators, committees, officers, and employees of the Senate on matters pertaining to their official duties. The office is led by the Senate Legal Counsel and deputy counsel, who are appointed by the President pro tempore upon the recommendation of the majority and minority leaders. The professional staff of the office includes three attorneys and a support staff. Services are provided upon request. For more information on the legislative process and congressional operations, see...

The Power to Regulate Commerce: Limits on Congressional Power

The Commerce Clause of the United States Constitution provides that the Congress shall have the power to regulate interstate and foreign commerce. The plain meaning of this language might indicate a limited power to regulate commercial trade between persons in one state and persons outside of that state. However, the Commerce Clause has never been construed quite so narrowly. Rather, the clause, along with the economy of the United States, has grown and become more complex. In addition, when Congress began to address national social problems, the Commerce Clause was often cited as the...

Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony

There are no federal statutes or Rules of the House of Representatives that directly affect the status of a Member of Congress who has been indicted for a crime that constitutes a felony. No rights or privileges are forfeited under the Constitution, statutory law, or the Rules of the House merely upon an indictment for an offense, prior to an establishment of guilt under the judicial system. Under House Rules, therefore, an indicted Member may continue to participate in congressional proceedings and considerations. Under the Constitution, a person under indictment is not disqualified from...

Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges

In the past year, the decisions and functions of the courts established under the Foreign Intelligence Surveillance Act (FISA) have received much public attention. FISA established two courts—the Foreign Intelligence Surveillance Court (FISC) and the FISA Court of Review—which have jurisdiction to review government applications to conduct electronic surveillance for foreign intelligence purposes. Various proposals have been introduced in Congress to amend the law that authorizes such surveillance and to change the internal practices and procedures of the courts. This report focuses on...

Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview

In the wake of recent disclosures concerning various National Security Agency (NSA) surveillance and data collection programs, several legislative changes to the government’s intelligence operations authority have been suggested. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct surveillance and engage in data collection for foreign intelligence purposes, and the FISA Court of Review reviews rulings of the FISC. Some have proposed altering the underlying legal authorities relied on...

The Debate Over Selected Presidential Assistants and Advisors: Appointment, Accountability, and Congressional Oversight

A number of the appointments made by President Barack H. Obama to his Administration or by Cabinet secretaries to their departments have been referred to, especially by the news media, as “czars.” For some, the term is used to convey an appointee’s title (e.g., climate “czar”) in shorthand. For others, it is being used to convey a sense that power is being centralized in the White House or certain entities. When used in political science literature, the term generally refers to White House policy coordination or an intense focus by the appointee on an issue of great magnitude. Congress has...

Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate

Recent revelations about the size and scope of government foreign surveillance efforts have prompted some to criticize the level of scrutiny that the courts—established under the Foreign Intelligence Surveillance Act of 1978 (FISA)—currently provide with respect to the government’s applications to engage in such surveillance. In response to concerns that the ex parte nature of many of the proceedings before the FISA courts prevents an adequate review of the government’s legal positions, some have proposed establishing an office led by an attorney or “public advocate” who would represent...

Free Exercise of Religion by Secular Organizations and Their Owners: Implications for the Affordable Care Act (ACA)

The Supreme Court’s grant of review in Conestoga Wood Specialties Corp. v. Secretary of U.S. Department of Health and Human Services and Hobby Lobby Stores v. Sebelius, along with recent federal court decisions, has highlighted the ongoing controversy over the scope of the Affordable Care Act’s (ACA’s) contraceptive coverage requirement, which requires an employer to provide certain contraceptive coverage to its employees under its group health plan. Some employers have objected to the requirement, citing objections to the facilitation of the use of contraceptives in conflict with the...

Reform of the Foreign Intelligence Surveillance Courts: Disclosure of FISA Opinions

In response to the disclosure of various National Security Agency (NSA) surveillance and data collection programs, a number of legislative changes to the government’s intelligence operations authority have been suggested. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct surveillance and engage in data collection for foreign intelligence purposes, and the FISA Court of Review reviews rulings of the FISC. Most FISA opinions are classified by the executive branch. Some have raised...

Countering Violent Extremism in the United States

In August 2011, the Obama Administration announced its counter-radicalization strategy. It is devised to address the forces that influence some people living in the United States to acquire and hold radical or extremist beliefs that may eventually compel them to commit terrorism. This is the first such strategy for the federal government, which calls this effort “combating violent extremism” (CVE). Since the Al Qaeda attacks of September 11, 2001, the U.S. government has prosecuted hundreds of individuals on terrorism charges. Unlike the necessarily secretive law enforcement and...

The Domestic Terrorist Threat: Background and Issues for Congress

The emphasis of counterterrorism policy in the United States since Al Qaeda’s attacks of September 11, 2001 (9/11) has been on jihadist terrorism. However, in the last decade, domestic terrorists—people who commit crimes within the homeland and draw inspiration from U.S.-based extremist ideologies and movements—have killed American citizens and damaged property across the country. Not all of these criminals have been prosecuted under terrorism statutes. This latter point is not meant to imply that domestic terrorists should be taken any less seriously than other terrorists.

The Department...

The Social Security Number: Legal Developments Affecting Its Collection, Disclosure, and Confidentiality

While the social security number (SSN) was first introduced as a device for keeping track of contributions to the Social Security program, its use has been expanded by government entities and the private sector to keep track of many other government and private sector records. Use of the SSN as a federal government identifier was based on Executive Order 9397, issued by President Franklin Roosevelt. Beginning in the 1960s, federal agencies started adopting the SSN as a governmental identifier, and its use for keeping track of government records, on both the federal and state levels,...

Executive Order 13438: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq

On July 17, 2007, President Bush issued Executive Order 13438, Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq. It is the latest in a series of executive orders based on the national emergency declared by President Bush with respect to “the unusual and extraordinary threat to the national security and foreign policy of the United States posed by obstacles to the orderly reconstruction of Iraq, the restoration and maintenance of peace and security in that country, and the development of political, administrative and economic institutions in Iraq.” Regulations...

State Legalization of Recreational Marijuana: Selected Legal Issues

May a state authorize the use of marijuana for recreational purposes even if such use is forbidden by federal law? This novel and unresolved legal question has vexed judges, politicians, and legal scholars, and it has also generated considerable public debate among supporters and opponents of “legalizing” the recreational use of marijuana.

Under the federal Controlled Substances Act (CSA), the cultivation, distribution, and possession of marijuana are prohibited for any reason other than to engage in federally approved research. Yet 18 states and the District of Columbia currently exempt...

Prosecutorial Discretion in Immigration Enforcement: Legal Issues

The term prosecutorial discretion is commonly used to describe the wide latitude that prosecutors have in determining when, whom, how, and even whether to prosecute apparent violations of the law. The Immigration and Naturalization Service (INS) and, later, the Department of Homeland Security (DHS) and its components have historically described themselves as exercising prosecutorial discretion in immigration enforcement. Some commentators have recently challenged this characterization on the grounds that DHS enforces primarily civil violations, and some of its components cannot be said to...

The 2010 Decennial Census: Background and Issues

The 23rd decennial census of the U.S. population began on January 25, 2010, in Noorvik, AK, where the U.S. Bureau of the Census (Census Bureau) Director, among others, traveled by snowmobile and dogsled to enumerate the residents. Most households in the United States—about 120 million—received their census forms by mail in March, ahead of the official April 1 Census Day, and 74% of the households that received forms mailed them back. From May through July, the Census Bureau contacted about 47 million nonresponding households and on December 21, 2010, released the official state population...

Turkmenistan: Recent Developments and U.S. Interests

When Turkmenistan gained independence with the dissolution of the Soviet Union at the end of 1991, the former republic’s president and head of the Turkmen Communist Party, Saparamurad Niyazov, retained power. He was reelected president in another uncontested race in 1992, and a referendum in 1994 extended his term until 2002. Before facing reelection, however, constitutional amendments approved in 1999 proclaimed him president for life. The country’s May 1992 constitution granted Niyazov overwhelming powers to rule by decree as head of state and government. According to several...

Keystone XL Pipeline Project: Key Issues

This report describes the Keystone XL pipeline proposal and the process required for federal approval. It summarizes key arguments for and against the pipeline put forth by the pipeline's developers, federal agencies, environmental groups, and other stakeholders. The report discusses potential consistency challenges faced by the State Department in reviewing the pipeline application given its recent prior approvals of similar pipeline projects. Finally, the report reviews the constitutional basis for the State Department's authority to issue a Presidential Permit, and opponents' possible...

Sexual Orientation and Gender Identity Discrimination in Employment: A Legal Analysis of the Employment Non-Discrimination Act (ENDA)

Introduced in various incarnations in every congressional session since the 103rd Congress, the proposed Employment Non-Discrimination Act (ENDA; H.R. 1755/S. 815 in the 113th Congress) would prohibit discrimination based on an individual’s actual or perceived sexual orientation or gender identity by public and private employers in hiring, discharge, compensation, and other terms and conditions of employment. The stated purpose of the legislation is “to address the history and persistent, widespread pattern of discrimination, including unconstitutional discrimination, on the basis of...

Patent Infringement Pleadings: An Analysis of Recent Proposals for Patent Reform

Patent infringement is the unauthorized making, using, offering for sale, selling, and importing of a patented invention. The patent provides the patent holder with the right to protect against such infringement by suing for relief in the appropriate federal court. Litigation of a patent infringement claim begins with the filing of a complaint in federal court. Form 18 in the appendix of the Federal Rules of Civil Procedure provides a model for a patent infringement complaint. This form requires four statements asserting jurisdiction, patent ownership, patent infringement by the defendant,...

Georgia’s October 2013 Presidential Election: Outcome and Implications

This report discusses Georgia’s October 27, 2013, presidential election and its implications for U.S. interests. The election took place one year after a legislative election that witnessed the mostly peaceful shift of legislative and ministerial power from the ruling party, the United National Movement (UNM), to the Georgia Dream (GD) coalition bloc. The newly elected president, Giorgi Margvelashvili of the GD, will have fewer powers under recently approved constitutional changes.

Most observers have viewed the 2013 presidential election as marking Georgia’s further progress in...

Corporate Criminal Liability: An Abbreviated Overview of Federal Law

A corporation is criminally liable for the federal crimes its employees or agents commit in its interest. Corporate officers, employees, and agents are individually liable for the crimes they commit, for the crimes they conspire to commit, for the foreseeable crimes their coconspirators commit, for the crimes whose commission they aid and abet, and for the crimes whose perpetrators they assist after the fact.

The decision whether to prosecute a corporation rests with the Justice Department. Internal guidelines identify the factors that are to be weighed: the strength of the case against...

Corporate Criminal Liability: An Overview of Federal Law

A corporation is criminally liable for the federal crimes its employees or agents commit in its interest. Corporate officers, employees, and agents are individually liable for the crimes they commit, for the crimes they conspire to commit, for the foreseeable crimes their coconspirators commit, for the crimes whose commission they aid and abet, and for the crimes whose perpetrators they assist after the fact.

The decision whether to prosecute a corporation rests with the Justice Department. Internal guidelines identify the factors that are to be weighed: the strength of the case against...

Introducing a Public Advocate into the Foreign Intelligence Surveillance Act's Courts: Select Legal Issues

This report explores government surveillance act and other difficult constitutional issues prompted by the idea of including a new adversary in established under the Foreign Intelligence Surveillance Act of 1978 (FISA) FISA court proceedings.

Government Shutdown: Operations of the Department of Defense During a Lapse in Appropriations

Because Congress did not provide any FY2014 funding for the Department of Defense (DOD) by October 1, 2013, the beginning of the new fiscal year, DOD, like other agencies, is now subject to a lapse in appropriations during which agencies are generally required to shut down. The Office of Management and Budget (OMB), however, has identified a number of exceptions to the requirement that agencies cease operations, including a blanket exception for activities that “provide for the national security.”

With the approach of the Treasury Department’s estimate of an October 17, 2013, deadline for...

Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power

The lines of authority between states and the federal government are, to a significant extent, defined by the United States Constitution and relevant case law. In recent years, however, the Supreme Court has decided a number of cases that would seem to reevaluate this historical relationship. This report discusses state and federal legislative power generally, focusing on a number of these “federalism” cases. The report does not, however, address the larger policy issue of when it is appropriate—as opposed to constitutionally permissible—to exercise federal powers.

The U.S. Constitution...

An Overview of Judicial Review of Immigration Matters

Congress has plenary or sovereign power over the conditions for admitting aliens into the United States and permitting them to remain. This power is so completely entrusted to the political branch to legislate and implement as to be largely free from judicial review. However, this power is still subject to constitutional limitations, including substantive and procedural due process protections. In immigration cases, due process may be a flexible concept and the particular procedures that may be constitutionally required depend on the relative interests involved.

Historically, immigration...

Federal Mandatory Minimum Sentencing Statutes

Federal mandatory minimum sentencing statutes limit the discretion of a sentencing court to impose a sentence that does not include a term of imprisonment or the death penalty. They have a long history and come in several varieties: the not-less-than, the flat sentence, and piggyback versions. Federal courts may refrain from imposing an otherwise required statutory mandatory minimum sentence when requested by the prosecution on the basis of substantial assistance toward the prosecution of others. First-time, low-level, non-violent offenders may be able to avoid the mandatory minimums under...

Noncitizen Eligibility for Public Benefits: Legal Issues

Whether and when noncitizens may receive particular types of government assistance can be difficult to ascertain because of the various federal, state, and local laws governing their eligibility for such assistance. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 was enacted to establish “national policy with respect to welfare and immigration.” With certain exceptions, PRWORA bars aliens who are not “qualified aliens” from receiving federal, state, or local “public benefits,” and also precludes qualified aliens from receiving “federal means-tested...

Federal Mandatory Minimum Sentencing Statutes: An Abbreviated Overview

Federal mandatory minimum sentencing statutes limit the discretion of a sentencing court to impose a sentence that does not include a term of imprisonment or the death penalty. They have a long history and come in several varieties: the not-less-than, the flat sentence, and piggyback versions. Federal courts may refrain from imposing an otherwise required statutory mandatory minimum sentence when requested by the prosecution on the basis of substantial assistance toward the prosecution of others. First-time, low-level, non-violent offenders may be able to avoid the mandatory minimums under...

Ordering a Roll Call Vote in the Senate

Any time the Senate is considering a question—whether that question is a bill, amendment, motion, conference report, or something else—a Senator who has the floor can “ask for the yeas and nays” or a roll call vote on that question. This is the constitutional right of any Senator, and no other lawmaker can object to the request. If such a request is supported by 10 other Senators (for a total of 11) this usually requires the Senate to conduct a roll call vote (also called a vote by “the yeas and nays”) to decide the question it is considering. The Senate can agree to order a roll call vote...

Sexual Assaults Under the Uniform Code of Military Justice (UCMJ): Selected Legislative Proposals

Recent high-profile military-related cases involving sexual assaults by U.S. servicemembers have resulted in increased public and congressional interest in military discipline and the military justice system. Questions have been raised regarding how allegations of sexual assault are addressed by the chain of command, the authority and process to convene a court-martial, and the ability of the convening authority to provide clemency to a servicemember convicted of an offense.

Under Article I, Section 8 of the U.S. Constitution, Congress has the power to raise and support armies; provide and...

Sri Lanka: Background and U.S. Relations

The Democratic Socialist Republic of Sri Lanka, an island nation in the Indian Ocean, is a constitutional democracy with a relatively high level of development. For two and a half decades, political, social, and economic development was seriously constrained by years of ethnic conflict and war between the government and the Liberation Tigers of Tamil Eelam (LTTE), also known as the Tamil Tigers. After a violent end to the civil war in May 2009, in which authorities crushed LTTE forces and precipitated a humanitarian emergency in Sri Lanka’s Tamil-dominated north, attention has turned to...

Banning the Use of Racial Preferences in Higher Education: A Legal Analysis of Schuette v. Coalition to Defend Affirmative Action

In the more than three decades since the Supreme Court’s ruling in Regents of the University of California v. Bakke affirmed the constitutionality of affirmative action in public colleges and universities, many institutions of higher education have implemented race-conscious admissions programs in order to achieve a racially and ethnically diverse student body or faculty. Nevertheless, the pursuit of diversity in higher education remains controversial, and legal challenges to such admissions programs routinely continue to occur.

Currently, the Court is poised to consider a novel question...

Same-Sex Marriages: Legal Issues

This report discusses the Defense of Marriage Act (DOMA) and legal challenges to it. It reviews legal principles applied to determine the validity of a marriage contracted in another state and surveys the various approaches employed by states to address same-sex marriage. It also examines previous congressional resolutions proposing a constitutional amendment and limiting federal courts' jurisdiction to hear or determine any question pertaining to the interpretation of DOMA.

Military Justice: Courts-Martial, an Overview

Recent high-profile military-related cases involving sexual assaults by U.S. servicemembers have resulted in increased public and congressional interest in military discipline and the military justice system. Questions have been raised regarding how allegations of sexual assault are addressed by the chain of command, the authority and process to convene a court-martial, and the ability of the convening authority to provide clemency to a servicemember convicted of an offense. Additionally, some military-related cases, including those of Major Nidal Hasan, the alleged shooter at Fort Hood,...

The House of Representatives Apportionment Formula: An Analysis of Proposals for Change and Their Impact on States

As a basis for understanding the reallocation of Representatives among the states based on the 2010 Census, it may prove helpful to examine the current House of Representatives apportionment formula. In addition, some members of the statistical community have, in the recent past, urged Congress to consider changing the current apportionment formula. Consequently, an examination of other methods that could be used to apportion the seats in the House of Representatives may contribute to a deeper understanding of the apportionment process.

Seats in the House of Representatives are allocated...

“Don’t Ask, Don’t Tell”: A Legal Analysis

In 1993, after many months of study, debate, and political controversy, Congress passed and President Clinton signed legislation establishing a revised “[p]olicy concerning homosexuality in the armed forces.” The legislation reflected a compromise regarding the U.S. military’s policy toward members of the Armed Forces who engage in homosexual conduct. This compromise, colloquially referred to as “Don’t Ask, Don’t Tell (DADT),” held that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the...

The Supreme Court Rediscovers Property Rights: Six Recent Decisions

In 2010, the Supreme Court ended a five-year period when it accepted no property rights cases, granting certiorari in no less than six such cases between 2010 and 2012. This large number of cases suggests a renewed interest by the Court in property rights, and particularly in the Fifth Amendment Takings Clause at issue in four of the cases. The Takings Clause is the Constitution’s principal protection of property rights, promising just compensation when property rights are “taken” by government for a “public use.”

The first case, decided in 2010, was Stop the Beach Renourishment, Inc. v....

The U.S. House of Representatives Apportionment Formula in Theory and Practice

On December 21, 2010, the number of seats allocated to each state for the House of Representatives was announced. This allocation likely will determine representation to the House for the next five Congresses.

The Constitution requires that states be represented in the House of Representatives in accord with their population. It also requires that each state have at least one Representative, and that there be no more than one Representative for every 30,000 persons. For the 2010 apportionment, this could have meant a House of Representatives as small as 50 or as large as 10,306...

Filling U.S. Senate Vacancies: Perspectives and Contemporary Developments

United States Senators serve a term of six years. Vacancies occur when an incumbent Senator leaves office prematurely for any reason; they may be caused by death or resignation of the incumbent, by expulsion or declination (refusal to serve), or by refusal of the Senate to seat a Senator-elect or -designate.

This report provides information on current vacancies in the Senate, the constitutional origins of the Senate vacancy clause, the appointment process by which most vacancies are filled, and related contemporary issues. It will be revised and updated to reflect current developments in...

Foreign Surveillance and the Future of Standing to Sue Post-Clapper

Recent news accounts (and government responses to those news accounts) have indicated that the government is reportedly engaged in a surveillance program that gathers vast amounts of data, including records regarding the phone calls, emails, and Internet usage of millions of individuals. The disclosures to the media reportedly suggest that specific telecommunication companies have been required to disclose certain data to the government as part of the intelligence community’s surveillance efforts.

The recent controversy over the reports of government targeting efforts comes months after...

Restrictions on the Speech of Recipients of Federal Funds Under the Leadership Act of 2003: United States Agency for International Development v. Alliance for Open Society

Article 1, Section 8 of the United States Constitution provides Congress with the explicit power to collect taxes. Implicit in that power to collect revenue is also the power to spend that revenue. This clause is known as the Taxing and Spending Clause of the Constitution, and the Supreme Court has found that it grants Congress wide latitude to promote social policy that the federal government supports.

One way that Congress may exercise its spending power to encourage the implementation of policies that the federal government supports is through appropriations. One common example of...

Foreign Investment in the United States: Major Federal Statutory Restrictions

Foreign investment in the United States is a matter of congressional concern. It is believed by some that the United States has an unusually liberal policy which allows foreigners to invest in virtually all American businesses and real estate and that these foreign investments undermine the American economy by making it vulnerable to foreign influence and domination. These critics argue that there is even foreign domination of some key defense-related industries and that the ability of the country to protect itself in a time of national emergency could greatly suffer. These critics further...

Journalists’ Privilege: Overview of the Law and Legislation in the 113th Congress

In May of 2013, news broke that the Department of Justice (DOJ) had subpoenaed telephone toll records for numerous telephone lines, including some personal telephone lines, of reporters at the Associated Press (AP). The DOJ had issued these subpoenas and obtained the toll record information prior to notifying the AP The AP and many other news organizations have responded critically, noting that the DOJ’s failure to negotiate with the AP regarding the release of the records deprived AP of the ability to attempt to quash the subpoena in federal court. The media argues this action enabled the...

Closing the Guantanamo Detention Center: Legal Issues

Following the terrorist attacks of 9/11, Congress passed the Authorization for the Use of Military Force (AUMF), which granted the President the authority “to use all necessary and appropriate force against those ... [who] planned, authorized, committed, or aided the terrorist attacks” against the United States. Many persons subsequently captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention and possible prosecution. Although nearly 800 persons have been held at Guantanamo since early 2002, the...

State Taxation of Internet Transactions

The United States Bureau of the Census estimated that $4.1 trillion worth of retail and wholesale transactions were conducted over the Internet in 2010. That amount was 16.1% of all U.S. shipments and sales in that year. Other estimates, based on different data, projected the 2012 so-called e-commerce volume at approximately $3.9 trillion. The volume, roughly $4 trillion, of e-commerce is expected to increase, and state and local governments are concerned because collection of sales taxes on these transactions is difficult to enforce.

Under current law, states cannot reach beyond their...

FDA Final Rule Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco

On March 19, 2010, the Food and Drug Administration (FDA) reissued a 1996 final rule aimed at reducing underage smoking and use of smokeless tobacco products (e.g., snuff, chewing tobacco). The agency’s rulemaking was mandated by the Family Smoking Prevention and Tobacco Control Act, which was enacted last year in response to a 2000 decision by the Supreme Court holding that FDA lacked the statutory authority to regulate tobacco products. The Family Smoking Prevention and Tobacco Control Act (P.L. 111-31) expressly gives FDA broad statutory authority under the Federal Food, Drug, and...

Terrorism, Miranda, and Related Matters

The Fifth Amendment to the United States Constitution provides in part that “No person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” In Miranda v. Arizona, the Supreme Court declared that statements of an accused, given during a custodial interrogation, could not be introduced in evidence in criminal proceedings against him, unless he were first advised of his rights and waived them. In Dickerson v. United States, the Court held that the Miranda exclusionary rule was constitutionally...

El Salvador: Political and Economic Conditions and U.S. Relations

Congress has maintained a strong interest in developments in El Salvador, a small Central American country with a population of 6 million. During the 1980s, El Salvador was the largest recipient of U.S. aid in Latin America as its government struggled against the leftist Farabundo Marti National Liberation Front (FMLN) insurgency during a 12-year civil war. A peace accord negotiated in 1992 brought the war to an end and formally assimilated the FMLN into the political process as a political party. After the peace accords were signed, U.S. involvement shifted toward helping successive...

Integration of Drones into Domestic Airspace: Selected Legal Issues

Under the FAA Modernization and Reform Act of 2012, P.L. 112-95, Congress has tasked the Federal Aviation Administration (FAA) with integrating unmanned aircraft systems (UASs), sometimes referred to as unmanned aerial vehicles (UAVs) or drones, into the national airspace system by September 2015. Although the text of this act places safety as a predominant concern, it fails to address significant, and up to this point, largely unanswered legal questions.

For instance, several legal interests are implicated by drone flight over or near private property. Might such a flight constitute a...

Congressional Authority to Enact Criminal Law: An Examination of Selected Recent Cases

The powers of Congress begin and end with the Constitution. The Constitution vests Congress with explicit authority to enact criminal laws relating to counterfeiting, piracy, crimes on the high seas, offenses against the law of nations, and treason. It grants Congress other broad powers, such as the power to regulate interstate commerce. The Constitution’s Necessary and Proper Clause allows Congress to enact criminal laws when reasonably related to the regulation of commerce or to one of the other constitutionally enumerated powers. The Constitution also imposes limits on the powers of...

The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications

Under the Appointments Clause, the President is empowered to nominate and appoint principal officers of the United States, but only with the advice and consent of the Senate. In addition to this general appointment authority, the Recess Appointments Clause permits the President to make temporary appointments, without Senate approval, during periods in which the Senate is not in session. On January 4, 2012, while the Senate was holding periodic “pro forma” sessions, President Obama invoked his recess appointment power and unilaterally appointed Richard Cordray as Director of the Consumer...

Cloud Computing: Constitutional and Statutory Privacy Protections

Cloud computing is fast becoming an integral part of how we communicate with one another, buy music, share photos, conduct business, pay our bills, shop, and bank. Many of the activities that once occurred solely in the physical world, including communications with one another, are increasingly moving to the digital world. What was once a letter to a friend is now a Facebook message; a call to a loved one is now a Skype chat; a private meeting with a business partner is now a video conference call. In short, the cloud is revolutionizing not only how we compute, but also how we live. Where...

Malawi: Recent Developments and U.S. Relations

President Barack Obama’s Administration and a number of Members of Congress welcomed Malawian President Joyce Banda’s accession to power, largely because she reversed a number of controversial decisions taken by her predecessor, Bingu wa Mutharika. Banda succeeded him after he died in early April 2012 while serving a contentious second term. Banda’s status as Africa’s second female president, an internationally recognized women’s rights advocate, and a leader with socioeconomic development expertise has also attracted U.S. and other international support for her. There are some indications...

Proposed Keystone XL Pipeline: Legal Issues

In 2008, TransCanada Corp. applied for a presidential permit from the State Department to construct and operate an oil pipeline across the U.S.-Canada border in a project known as Keystone XL. The Keystone XL pipeline would transport oil produced from oil sands in Alberta, Canada, to Gulf Coast refineries. The permit application was subjected to review by the State Department pursuant to executive branch authority over cross-border pipeline facilities as articulated in Executive Order 13337, and subsequently denied by the State Department. Pursuant to the requirements of legislation passed...

Understanding China’s Political System

This report is designed to provide Congress with a perspective on the contemporary political system of China, the only Communist Party-led state in the G-20 grouping of major economies. China’s Communist Party dominates state and society in China, is committed to maintaining a permanent monopoly on power, and is intolerant of those who question its right to rule. Nonetheless, analysts consider China’s political system to be neither monolithic nor rigidly hierarchical. Jockeying among leaders and institutions representing different sets of interests is common at every level of the system....

Supporting Criminal Justice System Reform in Mexico: The U.S. Role

Fostering security, stability, and democracy in neighboring Mexico is seen by analysts to be in the U.S. national security and economic interest. Reforming Mexico’s often corrupt and inefficient criminal justice system is widely regarded as crucial for combating criminality, strengthening the rule of law, and better protecting citizen security and human rights in the country. Congress has provided significant support to help Mexico reform its justice system in order to make current anticrime efforts more effective and to strengthen the system over the long term.

U.S. and Mexican officials...

A Unified National Security Budget? Issues for Congress

In recent years a number of observers and practitioners have identified various facets of U.S. government national security practice—decision-making, strategy-making, budgeting, planning and execution, and congressional oversight—as inherently “cross-cutting.” They have in mind arenas—such as counterterrorism, and stabilization and reconstruction—that by definition involve multiple agencies, or for which responsibilities could be divided up in any number of ways among various agencies. For such facets of national security, they argue, the U.S. government is seldom able to conduct genuinely...

U.S. Policy Towards Burma: Issues for the 113th Congress

U.S. policy towards Burma has undergone a discernible shift in its approach since a quasi-civilian government was established in March 2011. While the overall objectives of U.S. policy towards the country remain in place—the establishment of civilian democratic government based on the rule of law and the protection of basic human rights—the Obama Administration has moved from a more reactive, “action-for-action” strategy and a skeptical and cautious attitude towards the newly created Union Government and Union Parliament to a more proactive mode. The new approach is designed to foster...

Qui Tam: The False Claims Act and Related Federal Statutes

Qui tam enlists the public in the recovery of civil penalties and forfeitures. It rewards with a portion of the recovered proceeds those who sue in the government’s name. A creature of antiquity, once common, today qui tam lives on in federal law only in the False Claims Act and in Indian protection laws.

The False Claims Act, expanded by the Fraud Enforcement and Recovery Act of 2009, P.L. 111-21, 123 Stat. 1617 (2009), now proscribes: (1) presenting a false claim; (2) making or using a false record or statement material to a false claim; (3) possessing property or money of the U.S. and...

Qui Tam: An Abbreviated Look at the False Claims Act and Related Federal Statutes

Qui tam enlists the public in the recovery of civil penalties and forfeitures. It rewards with a portion of the recovered proceeds those who sue in the government’s name. A creature of antiquity, once common, today qui tam lives on in federal law only in the False Claims Act and in Indian protection laws.

The False Claims Act, expanded by the Fraud Enforcement and Recovery Act of 2009, P.L. 111-21, 123 Stat. 1617 (2009), now proscribes: (1) presenting a false claim; (2) making or using a false record or statement material to a false claim; (3) possessing property or money of the United...

Same-Sex Marriage and the Supreme Court: United States v. Windsor and Hollingsworth v. Perry

Recently, the Supreme Court agreed to weigh in on an issue that has long been a subject of controversy in the United States, namely, what types of restrictions, if any, may the government place on the ability of gay couples to enter legal marriages. The origin of the debate over same-sex marriage can be traced back to 1993, when the Hawaii Supreme Court issued a ruling that appeared likely to lead to recognition of same-sex marriage under the state’s constitution. In response, Congress enacted the Defense of Marriage Act (DOMA). Section 3 of DOMA created a new federal definition for the...

State and Local Economic Sanctions: Constitutional Issues

States and localities have occasionally enacted measures restricting their agencies from conducting economic transactions with entities that do business with or in foreign countries whose conduct these jurisdictions find objectionable. While some maintain that sub-federal entities may enact such laws under sovereign proprietary powers and other constitutional prerogatives, others argue that these measures impermissibly invade federal commerce and foreign affairs authorities and may, in some cases, be preempted by federal statute. In 2000, the U.S. Supreme Court unanimously held in Crosby...

Congressional Authority to Limit Military Operations

Controversy continues over the appropriate role that Congress should play in regulating U.S. military operations against foreign entities. U.S. action against Libya reignited consideration of long-standing questions concerning the President’s constitutional authority to use military force without congressional authorization, as well as congressional authority to regulate or limit the use of such force. There may be a renewed focus in the 113th Congress on whether or to what extent Congress has the constitutional authority to legislate limits on the President’s authority to conduct military...

Tribal Criminal Jurisdiction over Non-Indians in S. 47 and H.R. 11, the Violence Against Women Reauthorization Act of 2013

Domestic and dating violence in Indian country are reportedly at epidemic proportions. However, there is a practical jurisdictional issue when the violence involves a non-Indian perpetrator and an Indian victim. Indian tribes only have criminal jurisdiction over crimes involving Indian perpetrators and victims within their jurisdictions. Most states only have jurisdiction over crimes involving a non-Indian perpetrator and a non-Indian victim within Indian country located in the state. Although the federal government has jurisdiction over crime committed by non-Indians against Indians in...

U.S. Trade Remedy Laws and Nonmarket Economies: A Legal Overview

Two major U.S. trade remedies are antidumping (AD) law, which combats the sale of imported products at less than their fair market value, and countervailing duty (CVD) law, which aims to offset foreign government subsidization of imported goods. If dumped or subsidized imports are found to cause or threaten material injury to a domestic industry, antidumping or countervailing duties will be imposed. Both remedies are available when goods are imported from competitor countries with free market policies. As of 1984, however, only AD law had been applied to goods from nonmarket or...

Bosnia and Herzegovina: Current Issues and U.S. Policy

In recent years, many analysts have expressed concern that the international community’s efforts over the past 17 years to stabilize Bosnia and Herzegovina are failing. Milorad Dodik, president of the Republika Srpska (RS), one of the two semi-autonomous “entities” within Bosnia, has obstructed efforts to make Bosnia’s central government more effective. He has repeatedly asserted the RS’s right to secede from Bosnia, although he has so far refrained from trying to make this threat a reality. Some ethnic Croat leaders in Bosnia have called for more autonomy for Croats within Bosnia, perhaps...

Procedures for Considering Changes in Senate Rules

This report discusses procedures and related issues involved in considering changes to Senate rules. The Constitution empowers each house of Congress to determine its own rules. The Senate normally considers changes to its Standing Rules in the form of a simple resolution, which (like any ordinary measure) can be adopted by a majority of Senators voting, a quorum being present (“simple majority”). Like most measures, however, such a resolution is debatable. Senate rules place no general limits on how long consideration of a measure may last, and allow such limits to be imposed only by a...

Religious Discrimination in Employment Under Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, national origin, or sex. It prohibits employers from discriminating against employees on the basis of their religious beliefs and requires employers to make reasonable accommodations for employees’ religious practices. Title VII defines religion broadly and relies on an individual’s subjective understanding of his or her beliefs, which may result in broad protections for employees with sincerely held beliefs.

Congress has recognized that restrictions on employment...

Ghana: Recent Developments and U.S. Relations

Ghana: Bilateral Cooperation and Leadership Engagement

Ghana is considered a model for many of the outcomes that many Members of Congress have long sought to achieve in sub-Saharan Africa in the areas of authorizations; appropriations and program guidance; and oversight. Ghana has received a large U.S. Millennium Challenge Corporation (MCC) Compact and may soon receive a second. It is also a recipient of substantial U.S. Agency for International Development (USAID) and State Department bilateral aid, much of which is channeled through three presidential development initiatives:

the Global...

The Unified Command Plan and Combatant Commands: Background and Issues for Congress

The Unified Command Plan (UCP) and associated Combatant Commands (COCOMs) provide operational instructions and command and control to the Armed Forces and have a significant impact on how they are organized, trained, and resourced—areas over which Congress has constitutional authority. The UCP is a classified executive branch document prepared by the Chairman of the Joint Chiefs of Staff (CJCS) and reviewed and updated every two years that assigns missions; planning, training, and operational responsibilities; and geographic areas of responsibilities to COCOMs. Functional COCOMs operate...

Child Protection Act of 2012: A Brief Legal Analysis

On the December 7, 2012, the President signed the Child Protection Act of 2012, P.L. 112-206 (H.R. 6063), into law. The measure had previously passed the House under suspension of the rules and the Senate by unanimous consent. Its provisions are (1) increase the maximum penalty for certain child pornography offenses; (2) outlaw harassment of a child victim or witness while under a protective order; (3) grant the U.S. Marshals Service administrative subpoena authority in sex offender registration cases; (4) direct the U.S. Sentencing Commission to review the adequacy of federal sentencing...

Litigation Concerning the Constitutionality of the Prevent All Cigarette Trafficking Act (PACT Act)

The Jenkins Act requires out-of-state sellers of cigarettes to register and file a report with the states in which they sell cigarettes listing the name, address, and quantity of cigarettes sold to state residents. In the past, the states would use this information to collect taxes from the buyers directly. However, with the rise of Internet sales of cigarettes, compliance with the Jenkins Act was very low, and it was estimated that billions of dollars of state and local taxes went unpaid. In 2010, Congress passed the Prevent All Cigarette Trafficking Act (PACT Act), which amends the...

Introduction to the Federal Budget Process

Congressional Research Service 7-5700 www.crs.gov 98-721 Summary Budgeting for the federal government is an enormously complex process. It entails dozens of subprocesses, countless rules and procedures, the efforts of tens of thousands of staff persons in the executive and legislative branches, millions of work hours each year, and the active participation of the President and congressional leaders, as well as other Members of Congress and executive officials. The enforcement of budgetary decisions involves a complex web of procedures that encompasses both congressional and executive...

Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues

Federal agencies regularly adopt rules, which have the force of law, to implement the statutes and programs authorized by Congress. Unless a statute directs otherwise, agencies generally must follow the requirements of the Administrative Procedure Act to promulgate rules. However, beginning with President Reagan, Presidents have maintained a centralized review process for “significant regulatory actions.” Currently, Executive Order (E.O.) 12866, issued by President Clinton, imposes additional procedures agencies must follow before a rule can be finalized. This includes requiring agencies...

Federal and State Authority over Surplus Water Stored at Federal Water Projects

Various water supply shortages and greater demand for water supply related to energy development projects have brought increased attention to disputes over the control of water resources across the country. In particular, domestic on-shore unconventional oil and gas development, such as hydraulic fracturing, has caused rapid growth in freshwater demand. To accommodate water supply requests in the Missouri River Basin, the U.S. Army Corps of Engineers (Corps) has proposed the use of surplus water from its Garrison Dam/Lake Sakakawea Project in North Dakota. The Corps’ proposal would allow...

Gun Control Legislation

Congress has debated the efficacy and constitutionality of federal regulation of firearms and ammunition, with strong advocates arguing for and against greater gun control. During the 112th Congress, several mass-casualty shootings punctuated public discourse on gun control. In a January 8, 2011, Tucson, AZ, shooting, 6 people were killed and 14 wounded, including Representative Gabrielle Giffords, who was grievously wounded. In a July 20, 2012, Aurora, CO, theater shooting, 12 people were killed and 58 wounded. In an August 5, 2012, Milwaukee, WI, Sikh temple shooting, 6 people were...

Medical Marijuana: The Supremacy Clause, Federalism, and the Interplay Between State and Federal Laws

As part of a larger scheme to regulate drugs and other controlled substances, federal law prohibits the cultivation, distribution, and possession of marijuana. No exception is made for marijuana used in the course of a recommended medical treatment. Indeed, by categorizing marijuana as a Schedule I drug under the Controlled Substances Act (CSA), the federal government has concluded that marijuana has “no currently accepted medical use in treatment in the United States.” Yet 18 states and the District of Columbia have decriminalized medical marijuana by enacting exceptions to their state...

The Use of Federal Troops for Disaster Assistance: Legal Issues

Natural disasters, such as Hurricane Sandy, raise questions concerning the President’s legal authority to send active duty military forces into a disaster area and the permissible functions the military can perform to protect life and property and maintain order. The Stafford Act authorizes the use of the military for disaster relief operations at the request of the state governor, but it does not authorize the use of the military to perform law enforcement functions, which is ordinarily prohibited by the Posse Comitatus Act. However, the President may invoke other authorities to use...

Congressional Investigations of the Department of Justice, 1920-2012: History, Law, and Practice

Legislative oversight is most commonly conducted through congressional budget, authorization, appropriations, confirmation, and investigative processes, and, in rare instances, through impeachment. But the adversarial, often confrontational, and sometimes high profile nature of congressional investigations sets it apart from the more routine, accommodative facets of the oversight process experienced in authorization, appropriations, or confirmation exercises. While all aspects of legislative oversight share the common goals of informing Congress so as to best accomplish its tasks of...

Constitutionality of Retroactive Tax Legislation

The question is frequently asked whether Congress can enact retroactive tax legislation. It can be an important one for Congress because (1) an ever-growing number of tax provisions have expiration dates and some may not always be extended in a timely manner; (2) an interest in finding new revenue can encourage making a provision retroactive in order to increase the amount raised; and (3) an intent to influence behavior by means of a tax provision can sometimes include a desire to “penalize” past conduct.

It is clear there is no absolute constitutional bar to retroactive tax legislation....

The Article V Convention for Proposing Constitutional Amendments: Historical Perspectives for Congress

The Philadelphia Convention of 1787 provided two methods of proposing amendments to the U.S. Constitution. In the first, Congress, by two-thirds vote in both houses, proposes amendments to the states. If three-fourths of the states (38 at present) vote to ratify the amendment, it becomes part of the Constitution. Since 1789, Congress has proposed 33 amendments by this method, 27 of which have been adopted. In the second method, if the legislatures of two-thirds of the states (34 at present) apply, Congress must call a convention to consider and propose amendments, which must meet the same...

Export Clause: Limitation on Congress’s Taxing Power

The Export Clause, found in Article I, Section 9, Clause 5 of the U.S. Constitution, directly states “No Tax or Duty shall be laid on Articles exported from any State.” The Clause represents one of the few restrictions on Congress’s otherwise broad taxing power. Examples of taxes that have been found unconstitutional as applied to exports include the harbor maintenance tax and the excise tax on domestically mined coal.

The Clause prohibits taxes and duties that are targeted at exports or imposed on goods during “the course of exportation.” It also protects those services and activities...

Contemporary Developments in Presidential Elections

This report considers contemporary developments in presidential elections. It emphasizes three topics chosen for their recurring importance and notable recent developments: (1) nominating procedures; (2) campaign finance; and (3) the electoral college. The report highlights significant developments in these areas, particularly for the 2008 and 2012 elections. It also provides background information about the presidential election process in general. Other CRS products cited throughout this report provide additional information about the topics introduced here.

As the report notes, 2012 was...

Georgia’s October 2012 Legislative Election: Outcome and Implications

Georgia’s continued sovereignty and independence and its development as a free market democracy have been significant concerns to successive Congresses and Administrations. The United States and Georgia signed a Charter on Strategic Partnership in early 2009 pledging U.S. support for these objectives, and the United States has been Georgia’s largest provider of foreign and security assistance. Most recently, elections for the 150-member Parliament of Georgia on October 1, 2012, have been viewed as substantially free and fair by most observers. Several Members of Congress and the...

Same-Sex Adoptions

While the federal government plays a role in supporting adoption through grants and tax benefits, states have the primary responsibility in setting policy to govern child adoption. As such, states may restrict adoption based on a myriad of factors including sexual orientation and/or marital status. For example, while most states are silent on the issue of adoption by gay and/or lesbian individuals or same-sex couples, states such as Florida, Arkansas, and Mississippi have statutory provisions which prevent such individuals or couples from adopting. However, lower courts in Florida and...

Family Law: Congress’s Authority to Legislate on Domestic Relations Questions

Under the United States Constitution, Congress has little direct authority to legislate in the field of domestic relations. The primary authority and responsibility to legislate in the domestic relations arena lies with the individual states. The rationale behind this approach is the lack of overriding national considerations in the family law area. However, states’ freedom to legislate has led to substantial variation between the individual states on many topics including incidents of marriage, divorce and child welfare. As such, Congress continues to utilize a number of indirect...

Arizona v. United States: A Limited Role for States in Immigration Enforcement

On June 25, 2012, the Supreme Court issued its much-anticipated decision in Arizona v. United States, ruling that some aspects of an Arizona statute intended to deter unlawfully present aliens from remaining in the state were preempted by federal law, but also holding that Arizona police were not facially preempted from running immigration status checks on persons stopped for state or local offenses. In reaching these conclusions, the Supreme Court made clear that opportunities for states to take independent action in the field of immigration enforcement are more constrained than some had...

NFIB v. Sebelius: Constitutionality of the Individual Mandate

In one of the most highly anticipated decisions in recent years, the Supreme Court released its ruling regarding the constitutionality of the Affordable Care Act (ACA) in June 2012. In NFIB v. Sebelius, the Court largely affirmed the constitutionality of ACA, including its individual mandate provision. In a move that was unexpected to many, the Court upheld the mandate as a valid exercise of Congress’s taxing power, but not its Commerce Clause power.

First, Chief Justice Roberts, in a controlling opinion, found that the Commerce Clause does not provide Congress with the authority to enact...

Deductibility of Corporate Campaign Expenditures

As the 2012 election cycle heats up, one question often asked is whether businesses may deduct amounts spent on political activities as a business expense. A related question is whether they may deduct dues paid to a 501(c)(6) trade association that then engages in such activities. These questions have greater significance in light of the Supreme Court’s 2010 decision in Citizens United v. FEC, which struck down long-standing prohibitions in federal campaign finance law on corporations making certain types of campaign-related expenditures.

Section 162(e) of the Internal Revenue Code (IRC)...

501(c)(3) Organizations: What Qualifies as “Educational”?

Concern is sometimes expressed that certain entities which qualify for tax-exempt 501(c)(3) status as “educational” organizations have abused their exemption by advocating a policy viewpoint. The argument is that these entities should have to present information on both sides of an issue equally and neutrally, without opinion.

The term “educational” is not defined in the Internal Revenue Code (IRC). It is defined by regulation to encompass individual instruction, as well as public instruction “on subjects useful to the individual and beneficial to the community.”

The question here is how...

The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law

The Constitution permits Congress to authorize the use of the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” And it guarantees the states protection against invasion or usurpation of their “republican form of government,” and, upon the request of the state legislature, against “domestic violence.” These constitutional provisions are reflected in the Insurrection Acts, which have been invoked numerous times both before and after passage of the Posse Comitatus Act, 18 U.S.C. Section 1385, in 1878. Congress has also enacted a number of statutes that...

The Speech or Debate Clause: Constitutional Background and Recent Developments

Members of Congress have immunity for their legislative acts under Article I, Section 6, clause 1, of the Constitution, which provides in part that “for any speech or debate in either House, [Senators and Representatives] shall not be questioned in any other place.” Even if their actions are within the scope of the Speech or Debate Clause or some other legal immunity, Members of Congress remain accountable to the house of Congress in which they serve and to the electorate. In cases in which the Clause applies, the immunity is absolute and cannot be defeated by an allegation of an improper...

Religious Discrimination in Public Schools: A Legal Analysis

Reports of harassment in schools, including examples based on religious identity and practices, have raised public attention and congressional interest in the issue of religious discrimination in schools. Congressional attention to the issue has focused on efforts to prevent discrimination in programs receiving federal funding, namely, public schools. The 112th Congress has introduced proposals (e.g., the Student Non-Discrimination Act) to curtail harassment in public schools and may consider related issues in the potential reauthorization of the Elementary and Secondary Education Act....

The Proposed Anti-Counterfeiting Trade Agreement: Background and Key Issues

The proposed Anti-Counterfeiting Trade Agreement (ACTA) is a new agreement for combating intellectual property rights (IPR) infringement. The ACTA negotiation concluded in October 2010, nearly three years after it began, and negotiating parties released a final text of the agreement in May 2011. Negotiated by the United States, Australia, Canada, the European Union and its 27 member states, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, and Switzerland, the ACTA is intended to build on the IPR protection and enforcement obligations set forth in the 1995 World Trade...

Presidential Authority to Impose Requirements on Federal Contractors

Executive orders requiring agencies to impose certain conditions on federal contractors as terms of their contracts have raised questions about presidential authority to issue such orders. Such executive orders typically cite the President’s constitutional authority, as well as his authority pursuant to the Federal Property and Administrative Services Act of 1949 (FPASA). FPASA authorizes the President to prescribe any policies or directives that he considers necessary to promote “economy” or “efficiency” in federal procurement.

There have been legal challenges to orders (1) encouraging...

Medicaid and Federal Grant Conditions After NFIB v. Sebelius: Constitutional Issues and Analysis

In March 2010, Congress passed the Patient Protection and Affordable Care Act (ACA). The ACA, among other things, requires states to expand Medicaid eligibility or lose Medicaid funding. Following the enactment of the ACA, state attorneys general and others brought several lawsuits challenging various provisions of the act on constitutional grounds. In National Federation of Independent Business (NFIB) v. Sebelius, the Supreme Court, among other things, decided that the enforcement mechanism for the ACA Medicaid expansion, withdrawal of all Medicaid funds, was a violation of the Tenth...

Health Care: Constitutional Rights and Legislative Powers

The health care reform debate raises many complex issues including those of coverage, accessibility, cost, accountability, and quality of health care. Underlying these policy considerations are issues regarding the status of health care as a constitutional or legal right. This report analyzes constitutional and legal issues pertaining to a right to health care, as well as the power of Congress to enact and fund health care programs. The United States Supreme Court’s decision in NFIB v. Sebelius, which upheld most of the Patient Protection and Affordable Care Act (Affordable Care Act/ACA),...

ACA: A Brief Overview of the Law, Implementation, and Legal Challenges

In March 2010, the 111th Congress passed health reform legislation, the Patient Protection and Affordable Care Act (ACA; P.L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (HCERA; P.L. 111-152) and other laws. ACA increases access to health insurance coverage, expands federal private health insurance market requirements, and requires the creation of health insurance exchanges to provide individuals and small employers with access to insurance. It also expands Medicaid coverage. The costs to the federal government of expanding health insurance and Medicaid...

Madagascar’s Political Crisis

Madagascar, an Indian Ocean island country, ranks among the world’s poorest countries; is the world’s fourth-largest island; and is extremely biologically diverse, with thousands of unique species of flora and fauna. It has experienced political instability since early 2009, initiated by tensions between the country’s last elected president, Marc Ravalomanana, and an opposition movement led by Andry Rajoelina, then the mayor of the capital city, Antananarivo. Mass protests in early 2009 and eventual military support for the ouster of President Ravalomanana culminated in his forced...

Federal Taxation of Aliens Working in the United States

A question that often arises is whether unauthorized aliens and other foreign nationals working in the United States are subject to U.S. taxes. The federal tax consequences for these individuals are dependent on (a) whether an individual is classified as a resident or nonresident alien and (b) whether a tax treaty or totalization agreement exists between the United States and the individual’s home country.

In general, an individual is a resident alien if he or she is a lawful permanent U.S. resident or is in the United States for a substantial period of time during the current and past...

United States v. Jones: GPS Monitoring, Property, and Privacy

In United States v. Jones, 132 S. Ct. 945 (2012), all nine Supreme Court Justices agreed that Jones was searched when the police attached a Global Positioning System (GPS) device to the undercarriage of his car and tracked his movements for four weeks. The Court, however, splintered on what constituted the search: the attachment of the device or the long-term monitoring. The majority held that the attachment of the GPS device and an attempt to obtain information was the violation; Justice Alito, concurring, argued that the monitoring was a violation of Jones’s reasonable expectation of...

Racial Profiling: Legal and Constitutional Issues

Racial profiling is the practice of targeting individuals for police or security detention based on their race or ethnicity in the belief that certain minority groups are more likely to engage in unlawful behavior. Examples of racial profiling by federal, state, and local law enforcement agencies are illustrated in legal settlements and data collected by governmental agencies and private groups, suggesting that minorities are disproportionately the subject of routine traffic stops and other security-related practices. The issue has periodically attracted congressional interest,...

Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes

In the 2010 decennial census, the Census Bureau counted the total population of the United States. This included, as in previous censuses, all U.S. citizens, lawfully present aliens, and unauthorized aliens. Some have suggested excluding aliens, particularly those who are in the country unlawfully, from the census count, in part so that they would not be included in the data used to apportion House seats among the states and determine voting districts within them.

One question raised by this idea is whether the exclusion of aliens could be done by amending the federal census statutes, or...

Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis

As part of the Patient Protection and Affordable Care Act (ACA), P.L. 111-148, as amended, Congress enacted a “minimum coverage provision,” which compels certain individuals to have a minimum level of health insurance (i.e., an “individual mandate”). Individuals who fail to do so may be subject to a monetary penalty, administered through the tax code. Congress has never compelled individuals to buy health insurance, and there has been significant controversy and debate over whether the requirement is within the scope of Congress’s legislative powers.

Shortly after ACA was enacted, several...

Trade Law: An Introduction to Selected International Agreements and U.S. Laws

The United States has trade obligations under multilateral trade agreements, including the General Agreement on Tariffs and Trade (GATT) and the other World Trade Organization (WTO) agreements, as well as bilateral and regional trade agreements. A variety of domestic laws implement these agreements, prescribe U.S. trade policy goals, or regulate international trade to achieve specific foreign policy objectives. This report provides an overview of both international and domestic trade law, focusing on a select group of international agreements and statutes that are most commonly implicated...

An Overview and Analysis of H.R. 3010, the Regulatory Accountability Act of 2011

In the fall of 2011, a group of Members from the House and the Senate introduced the Regulatory Accountability Act of 2011 (RAA, H.R. 3010 and S. 1606). The RAA would make the most significant legislative changes to the rulemaking process since the enactment of the Administrative Procedure Act in 1946. The RAA would modify and enact into law numerous new general procedures for rulemaking that appear in narrower form in existing law, executive orders, and Office of Management and Budget (OMB) documents. The House of Representatives passed H.R. 3010 on December 2, 2011. The Obama...

Executive Branch Reorganization Initiatives During the 112th Congress: A Brief Overview

On January 13, 2012, President Barack Obama announced a proposal for a federal government reorganization. This reorganization initially would involve two legislative stages. First, the President would ask Congress to reinstate the so-called “President’s reorganization authority,” an expedited process that was available to Presidents periodically between 1932 and 1984. A legislative proposal that would renew this authority was conveyed to Congress on February 16, 2012. A bill that is substantively similar to the Administration’s request, S. 2129, was subsequently introduced in the Senate....

Mandatory Minimum Sentencing for Federal Sex Offenses: An Abridged Overview

Sex offenses are usually state crimes. Federal law, however, outlaws sex offenses when they occur on federal lands or in federal prisons, when they involve interstate or foreign travel, or when they involve child pornography whose production or distribution is associated in some way with interstate or foreign commerce. Mandatory minimum terms of imprisonment attend conviction for any of several of these federal sex crimes.

The most severe mandatory minimum sentences have been reserved for aggravated sexual assaults committed in federal enclaves or federal prisons, for sex offenses...

Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

Sex offenses are usually state crimes. Federal law, however, outlaws sex offenses when they occur on federal lands or in federal prisons, when they involve interstate or foreign travel, or when they involve child pornography whose production or distribution is associated in some way with interstate or foreign commerce. Mandatory minimum terms of imprisonment attend conviction for any of several of these federal sex crimes.

The most severe mandatory minimum sentences have been reserved for aggravated sexual assaults committed in federal enclaves or federal prisons, for sex offenses...

Budget Process Reform: Proposals and Legislative Actions in 2012

An array of budget process reform proposals are put forth each year seeking to refine or modify the existing constitutional requirements, laws, and rules that make up the federal budget process. This report identifies, tracks, and explains current budget process reform proposals reported from committee or considered on the floor during 2012. The proposals are organized into categories related to the existing budget process. When appropriate, a brief description of the current process is provided.

Measures included in this report are H.R. 3575, the Legally Binding Budget Act of 2011; H.R....

Religious Exemptions for Mandatory Health Care Programs: A Legal Analysis

The Patient Protection and Affordable Care Act (ACA; P.L. 111-148), enacted in 2010, established requirements for employers and individuals to ensure the provision or availability of certain health care coverage. Additionally, the threat of bioterrorism has caused some to consider the possibility of introducing vaccination programs to prevent an outbreak of serious illnesses. Programs like health care coverage and vaccinations have the potential to violate certain religious beliefs and therefore may conflict with the First Amendment. In the continuing debate over issues for which mandatory...

Preventive Health Services Regulations: Religious Institutions’ Objections to Contraceptive Coverage

Since the enactment of the Patient Protection and Affordable Care Act (ACA) in 2010, controversy has surrounded the applicability of requirements for health plans and health insurers to cover certain recommended preventive health services, including a range of contraceptive services, without cost sharing. The U.S. Departments of Health and Human Services, Labor, and Treasury have issued regulations that provide an exemption from ACA for certain religious employers who have religious objections to contraceptives. The exemption appears to cover churches and church associations, but...

War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution

Article I, Section 8, of the Constitution confers on Congress the power to “declare War.” Modern Presidents, however, have contended that, notwithstanding this clause, they do not need congressional authorization to use force. Partly in response to that contention, and because of widespread concern that Congress had allowed its war power to atrophy in the Korean and Vietnam conflicts, Congress in 1973 enacted the War Powers Resolution (WPR; P.L. 93-148). Among other things, the WPR generally requires the President to report to Congress within 48 hours when, absent a declaration of war,...

Flag Protection: A Brief History and Summary of Supreme Court Decisions and Proposed Constitutional Amendments

This report is divided into two parts. The first gives a brief history of the flag protection issue, from the enactment of the Flag Protection Act in 1968 through current consideration of a constitutional amendment. The second part briefly summarizes the two decisions of the United States Supreme Court, Texas v. Johnson and United States v. Eichman, that struck down the state and federal flag protection statutes as applied in the context punishing expressive conduct.

In 1968, Congress reacted to the numerous public flag burnings in protest of the Vietnam conflict by passing the first...

Smart Meter Data: Privacy and Cybersecurity

Fueled by stimulus funding in the American Recovery and Reinvestment Act of 2009 (ARRA), electric utilities have accelerated their deployment of smart meters to millions of homes across the United States with help from the Department of Energy’s Smart Grid Investment Grant program. As the meters multiply, so do issues concerning the privacy and security of the data collected by the new technology. This Advanced Metering Infrastructure (AMI) promises to increase energy efficiency, bolster electric power grid reliability, and facilitate demand response, among other benefits. However, to...

Internet Gambling: An Abridged Overview of Federal Criminal Law

This is a summary of the federal criminal statutes implicated by conducting illegal gambling using the Internet. Gambling is primarily a matter of state law, reinforced by federal law in instances where the presence of an interstate or foreign element might otherwise frustrate the enforcement policies of state law. State officials and others have expressed concern that the Internet may be used to bring illegal gambling into their jurisdictions.

Illicit Internet gambling implicates at least seven federal criminal statutes. It is a federal crime (1) to conduct an illegal gambling business...

Internet Gambling: An Overview of Federal Criminal Law

This is a summary of the federal criminal statutes implicated by conducting illegal gambling using the Internet. Gambling is primarily a matter of state law, reinforced by federal law in instances where the presence of an interstate or foreign element might otherwise frustrate the enforcement policies of state law. State officials and others have expressed concern that the Internet may be used to bring illegal gambling into their jurisdictions.

Illicit Internet gambling implicates at least seven federal criminal statutes. It is a federal crime (1) to conduct an illegal gambling business...

President Obama’s January 4, 2012, Recess Appointments: Legal Issues

The U.S. Constitution establishes two methods by which Presidents may appoint officers of the United States: either with the advice and consent of the Senate, or unilaterally “during the Recess of the Senate.” These two constitutional provisions have long served as sources of political tension between Presidents and Congresses, and the same has held true since President Obama took office.

At the end of the first session of the 112th Congress, the Senate had not acted upon the nominations of the Director to the recently established Bureau of Consumer Financial Protection (CFPB or Bureau) or...

Application of Religious Law in U.S. Courts: Selected Legal Issues

Controversy has surrounded attempts by several state legislatures to limit the consideration of Islamic religious law (commonly referred to as sharia) or religious law generally, in domestic courts. In one of the most publicized examples, Oklahoma voters definitively approved a state constitutional amendment that prohibited state courts from considering “sharia law,” but the amendment has not taken effect pending the outcome of a lawsuit challenging its constitutionality. Other states have introduced variations of this limitation, with some generally prohibiting the use of religious...

Recall of Legislators and the Removal of Members of Congress from Office

Under the United States Constitution and congressional practice, Members of Congress may have their services ended prior to the normal expiration of their constitutionally established terms of office by their resignation or death, or by action of the house of Congress in which they are a Member by way of an “expulsion,” or by a finding that in accepting a subsequent “incompatible” public office, the Member would be deemed to have vacated his congressional seat.

Under Article I, Section 5, clause 2, of the Constitution, a Member of Congress may be removed from office before the normal...

Presidential Signing Statements: Constitutional and Institutional Implications

Presidential signing statements are official pronouncements issued by the President contemporaneously to the signing of a bill into law that, in addition to commenting on the law generally, have been used to forward the President’s interpretation of the statutory language; to assert constitutional objections to the provisions contained therein; and, concordantly, to announce that the provisions of the law will be administered in a manner that comports with the administration’s conception of the President’s constitutional prerogatives. While the history of presidential issuance of signing...

United States v. Comstock: Legislative Authority Under the Necessary and Proper Clause

The Adam Walsh Act created 18 U.S.C. 4248, which authorizes civil commitment as sexually dangerous those otherwise about to be released from federal custody. In United States v. Comstock, the United States Supreme Court rejected a suggestion that enactment of Section 4248 lay outside the scope of Congress’s legislative powers. It did so without considering whether the section might be vulnerable to constitutional attack on other grounds.

The Constitution reserves to the states and the people those powers that it does not vest in the federal government. It vests in Congress the authority to...

State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070

On April 23, 2010, Arizona enacted S.B. 1070, which is designed to discourage and deter the entry or presence of aliens who lack lawful status under federal immigration law. Potentially sweeping in effect, the measure requires state and local law enforcement officials to facilitate the detection of unauthorized aliens in their daily enforcement activities. The measure also establishes criminal penalties under state law, in addition to those already imposed under federal law, for alien smuggling offenses and failure to carry or complete alien registration documents. Further, it makes it a...

Campaign Finance Policy After Citizens United v. Federal Election Commission: Issues and Options for Congress

Following the Supreme Court’s January 21, 2010, ruling in Citizens United v. Federal Election Commission, questions have emerged about which policy options could be available to Congress. This report provides an overview of selected campaign finance policy options that may be relevant. It also briefly comments on how Citizens United might affect political advertising. A complete understanding of how Citizens United will affect the campaign and policy environments is likely to be unavailable until at least the conclusion of the 2010 election cycle.

As Congress considers legislative...

Gray Wolves Under the Endangered Species Act (ESA): Distinct Population Segments and Experimental Populations

Even before passage of the Endangered Species Act (ESA), federal law protected the wolf, which was nearly eradicated in the lower 48 states by the mid-1900s. Following ESA enactment, the U.S. Fish and Wildlife Service (FWS) placed four gray wolf subspecies—the eastern timber wolf, the Mexican wolf, the Texas gray wolf, and the northern Rocky Mountain wolf—on the first ESA list of endangered species. In 1978, FWS replaced the subspecies listings by listing the gray wolf species (Canis lupus) as endangered in all of the conterminous 48 states except Minnesota, where FWS listed it as...

Rothe Development Corporation v. Department of Defense: The Constitutionality of Federal Contracting Programs for Minority-Owned and Other Small Businesses

This report discusses Rothe Development Corporation v. Department of Defense, a case involving a constitutional challenge to a minority contracting program authorized under Section 1207 of the Department of Defense (DOD) Authorization Act of 1987. This program allowed DOD to take 10% off the price of offers submitted by “small disadvantaged businesses” in determining which offer had the lowest price or represented the best value for the government. Section 1207 also incorporated a presumption that minorities are socially and economically disadvantaged.

On November 4, 2008, the U.S. Court...

Deprivation of Honest Services as a Basis for Federal Mail and Wire Fraud Convictions

The United States Supreme Court in Skilling v. United States construed the honest services branch of the federal mail and wire fraud statutes to reach no more than cases involving bribery or kickbacks. The mail and wire fraud statutes, 18 U.S.C. Sections 1341 and 1343, impose criminal penalties for the use of mail or interstate wire communications to deprive another of money or property through a “scheme or artifice to defraud.” In its 1987 McNally decision, the Court had held that while the fraud statutes reached schemes to deprive another of property rights, they did not cover “the...

Sorrell v. IMS Health, Inc.: The Constitutionality of Restrictions on the Use of Data for Commercial Purposes

Health related data can be very valuable to researchers, scientists, and other academics. It can be just as valuable to participants in the market for the provision of health care. For example, pharmaceutical manufacturers use a process known as detailing to market prescription drugs. Detailing involves sending representatives of the pharmaceutical manufacturers to individual doctors’ offices with information about prescription drugs and their various uses. The more information a detailer has about the doctor (or medication prescriber) that he or she is planning to market to, the better...

State Authority to Regulate Nuclear Power: Federal Preemption Under the Atomic Energy Act (AEA)

A number of states have recently sought to take action to assure that nuclear power plants within their borders are operating safely. Most visibly, the State of Vermont has suggested that it will not approve the continued operation of the Vermont Yankee nuclear power plant, despite the Nuclear Regulatory Commission’s (NRC’s) approval of an extension to the plant’s operating license. The dispute may have profound effects on establishing the scope of state control over nuclear power—including whether states have the authority to shut down a federally licensed and long operating nuclear power...

Protection of Classified Information by Congress: Practices and Proposals

The protection of classified national security and other controlled information is of concern not only to the executive branch—which, for the most part, determines what information is classified and controlled—but also to Congress. The legislature uses such information to fulfill its constitutional responsibilities, particularly overseeing the executive, appropriating funds, and legislating public policy. Congress has established numerous mechanisms to safeguard controlled information in its custody, although these arrangements have varied over time, between the two chambers, and among...

Congress’s Power to Restore Copyright Protection to Works That Have Entered the Public Domain: Golan v. Holder

Golan v. Holder is a case that will be heard by the U.S. Supreme Court on October 5, 2011. The Court will consider whether Congress has the power to grant copyright protection to creative works that have already entered the public domain. At issue in Golan is the Uruguay Round Agreements Act (URAA) of 1994 that Congress passed in order to bring the United States into compliance with international agreements on intellectual property (IP). Section 514 of the URAA “restored” copyrights in certain foreign works that were previously in the public domain in the United States. After these works...

The Budget Control Act of 2011

The Budget Control Act (BCA) is the result of negotiations between the President and Congress held in response to the federal government having nearly reached its borrowing capacity.

The BCA authorized increases in the debt limit of at least $2.1 trillion dollars (and up to $2.4 trillion under certain conditions), subject to a disapproval process that would likely require securing the support of two-thirds of each chamber to prevent a debt limit increase. It established caps on the amount of money that could be spent through the annual appropriations process for the next 10 years, which...

The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation

The state secrets privilege is a judicially created evidentiary privilege that allows the federal government to resist court-ordered disclosure of information during litigation if there is a reasonable danger that such disclosure would harm the national security of the United States. Although the common law privilege has a long history, the Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of United States v. Reynolds, 345 U.S. 1 (1953). In Reynolds, the Court laid out a two-step procedure to be used when evaluating a claim of...

DNA Databanking: Selected Fourth Amendment Issues and Analysis

Over the past few decades, state and federal lawmakers have promoted the development of databases containing DNA (deoxyribonucleic acid) profiles for individuals who are under the supervision of the criminal justice system due to their known or suspected involvement in a felony or other qualifying crime. Congress has demonstrated concern toward some aspects of DNA databanking by requiring expungement of a DNA profile in certain circumstances, prohibiting most non-forensic uses of DNA profiles and databases, and restricting familial searching. However, in general, Congress has taken a...

Treasury Securities and the U.S. Sovereign Credit Default Swap Market

Paying the public debt is a central constitutional responsibility of Congress (Article I, Section 8). U.S. Treasury securities, which represent nearly all federal debt, have long been considered risk-free assets. The size of federal deficits and the projected imbalance between federal revenues and outlays, however, have raised concerns among some, including the rating agency Standard & Poor’s (S&P), which downgraded the U.S. sovereign credit rating from AAA to AA+ on August 5, 2011. S&P also cited “political brinksmanship” in debt ceiling negotiations as a factor, which raised the issue of...

Davis v. United States: Retroactivity and the Good-Faith Exception to the Exclusionary Rule

In Davis v. United States, the Supreme Court held that evidence seized in violation of the defendant’s Fourth Amendment rights is admissible at trial when the police seized the evidence in good-faith reliance on “binding appellate precedent.” The petitioner in that case, Willie Davis, was a passenger in a car that was stopped by police for a traffic violation. The police arrested the driver for driving while intoxicated and Davis for giving a false name. After handcuffing Davis and placing him in the back of a patrol car, the police searched the passenger compartment of the car in which...

Haiti’s National Elections: Issues, Concerns, and Outcome

In proximity to the United States, and with such a chronically unstable political environment and fragile economy, Haiti has been a constant policy issue for the United States. Congress views the stability of the nation with great concern and commitment to improving conditions there. The Obama Administration considers Haiti its top priority in the Latin American and Caribbean region. Both Congress and the international community have invested significant resources in the political, economic, and social development of Haiti, and have closely monitored the election process as a prelude to...

Fairness Doctrine: History and Constitutional Issues

The Fairness Doctrine was a policy of the Federal Communications Commission (FCC or Commission) that required broadcast licensees to cover issues of public importance and to do so in a fair manner. Issues of public importance were not limited to political campaigns. Nuclear plant construction, workers’ rights, and other issues of focus for a particular community could gain the status of an issue that broadcasters were required to cover. Therefore, the Fairness Doctrine was distinct from the so-called “equal time” rule, which requires broadcasters to grant equal time to qualified candidates...

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

This is an overview of the law under the federal material witness statute which authorizes the arrest of material witnesses, permits their release under essentially the same bail laws that apply to federal criminal defendants, but favors their release after their depositions have been taken.

Legislative efforts in the 109th Congress to amend the provisions never fully developed. Witnesses at Congressional oversight hearings did alleged that the authority to arrest and hold material witnesses until their appearance at federal criminal proceedings (including grand jury proceedings) had been...

Ashcroft v. al-Kidd: Official Immunity and Material Witnesses Before the Supreme Court

Public officials cannot be sued personally for injuries resulting from the performance of their duties. They lose this qualified immunity when the injuries resulted from their violation of clearly established law. In Ashcroft v. al-Kidd, the Supreme Court concluded that clearly established Fourth Amendment jurisprudence did not forbid the Attorney General from encouraging the use of the federal material witness statute as a pretext to detain and question a potential criminal suspect.

The Court left for another day several related issues. Does the material witness statute permit...

The Quasi Government: Hybrid Organizations with Both Government and Private Sector Legal Characteristics

To assist Congress in its oversight, this report provides an overview of federally related entities that possess legal characteristics of both the governmental and private sectors. These hybrid organizations (e.g., Fannie Mae, National Park Foundation, In-Q-Tel), collectively referred to in this report as the “quasi government,” have grown in number, size, and importance in recent decades.

A brief review of executive branch organizational history is followed by a description of entities with ties to the executive branch, although they are not “agencies” of the United States as defined in...

Côte d’Ivoire Post-Gbagbo: Crisis Recovery

Côte d’Ivoire is emerging from a severe political-military crisis that followed a disputed November 28, 2010, presidential runoff election between former president Laurent Gbagbo and his, former Prime Minister Alassane Ouattara. Both claimed electoral victory and formed opposing governments. Their rivalry spurred a full-scale civil military conflict in early March 2011, after months of growing political violence. Armed conflict largely ended days after Gbagbo’s arrest by pro-Ouattara forces, aided by United Nations (U.N.) and French peacekeepers, but limited residual fighting was...

DC Gun Laws and Proposed Amendments

In the wake of the Supreme Court’s decision in District of Columbia v. Heller, which declared three firearms provisions of the DC Code unconstitutional, a flurry of legislation was introduced both in Congress and in the District of Columbia Council.

In the 110th Congress, the House of Representatives passed H.R. 6842, the Second Amendment Enforcement Act. In the 111th Congress, similar provisions were incorporated as an amendment to the District of Columbia Voting Rights Act of 2009 (S. 160), which was passed by the Senate. Later, separate measures, which also would have overturned or...

The Law of Church and State: Public Aid to Sectarian Schools

A recurring issue in constitutional law concerns the extent to which the Establishment Clause of the First Amendment imposes constraints on the provision of public aid to private sectarian schools. The U.S. Supreme Court’s past jurisprudence construed the clause to impose severe restrictions on aid given directly to sectarian elementary and secondary schools but to be less restrictive when given to colleges or indirectly in the form of tax benefits or vouchers. The Court’s later decisions loosened the constitutional limitations on both direct and indirect aid.

This report gives a brief...

Legal Standing Under the First Amendment’s Establishment Clause

The Establishment Clause of the First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion.” The Establishment Clause prohibits government actions that would provide preferential treatment of one religion over another or preferential treatment of religion generally over nonreligion. Alleged violations under the Establishment Clause must meet a threshold requirement known as standing, the legal principle that governs whether an individual is the proper party to raise an issue before the courts.

Standing is a constitutional...

The Second Amendment: An Overview of District of Columbia v. Heller and McDonald v. City of Chicago

In District of Columbia v. Heller, the Supreme Court of the United States ruled in a 5-4 decision that the Second Amendment to the Constitution of the United States protects an individual right to possess a firearm, unconnected with service in a militia, and the use of that firearm for traditionally lawful purposes, such as self-defense within the home. The decision in Heller affirmed the decision of the Court of Appeals for the District of Columbia, which declared three provisions of the District of Columbia’s Firearms Control Regulation Act unconstitutional. The provisions specifically...

The Role of the House of Representatives in Judicial Impeachment Proceedings: Procedure, Practice, and Data

Within the past two years, the House of Representatives has conducted impeachment investigations into the conduct of two sitting federal judges: Samuel B. Kent, district court judge for the Southern District of Texas, and G. Thomas Porteous, Jr., district court judge for the Eastern District of Louisiana. In both cases, the House Judiciary Committee recommended the adoption of articles of impeachment. On June 19, 2009, Judge Kent was impeached on charges that he sexually abused court employees and obstructed a federal investigation into sexual abuse allegations against him. On March 11,...

Actual Innocence and Habeas Corpus: In re Troy Davis

In re Davis presented the Supreme Court with another opportunity to decide whether a state death row inmate, who on the basis of newly available evidence establishes that he is actually innocent, is entitled to habeas corpus relief to prevent his execution. Under existing law, newly discovered evidence of innocence may permit a federal court to consider an inmate’s claim (otherwise barred) that his conviction or sentence was the product of constitutional error (constitutional error plus innocence). The Court has never held that a freestanding claim of innocence may alone suffice. On two...

Chapter 9 of the U.S. Bankruptcy Code: “Municipal Bankruptcy”

As cities and states have experienced varying degrees of financial difficulties in recent years, “municipal bankruptcy” has been mentioned relatively often in the popular press. The term is somewhat misleading, both in the word “municipal” and in the word “bankruptcy.”

Many people think only of cities when they hear the word “municipal.” Upon learning that in the context of the U.S. Bankruptcy Code the term means more than just cities, some think that states may use the provisions of the Bankruptcy Code for municipal debtors: chapter 9. However, states are currently not eligible to be...

Collective Bargaining and Employees in the Public Sector

Faced with distressed state budgets and lower revenue, many governors and state legislatures have focused on the collective bargaining rights of public employees as a way to control expenses. Legislation that would limit such rights has reportedly been introduced in at least 22 states. In general, the sponsors of such legislation contend that unionized state and local employees enjoy unsustainable salaries and benefits as a result of collective bargaining.

According to the Bureau of Labor Statistics, 26.8% of all federal employees are members of a union. A slightly higher percentage of...

House Rules Changes in the 112th Congress Affecting Floor Proceedings

On the first day of the 112th Congress, the House agreed to H.Res. 5, which made six changes to House Rules affecting floor proceedings.

H.Res. 5 added a new paragraph to House Rule XII that prohibits a Member from introducing a bill or joint resolution unless it is accompanied by a statement citing “as specifically as practicable” powers granted to Congress in the Constitution to take the action proposed in the legislation. The new Rule further requires that the statements appear in the Congressional Record and be made available in electronic form. The content of the statement is not...

Funeral Protests: Selected Federal Laws and Constitutional Issues

The Westboro Baptist Church (WBC or Church) has been protesting military funerals for a number of years. The Church has gained national attention as a result. Its primary message is that God hates the United States and is punishing the country for its tolerance of homosexuality. The Church chooses to protest the funerals of fallen soldiers to make the point that in their opinion soldiers are dying as part of God’s retribution for this country’s sins. Though it began protesting military funerals, it has since branched out to funerals of fire fighters, police officers, and other public...

The Role of the Senate in Judicial Impeachment Proceedings: Procedure, Practice, and Data

During the 111th Congress, for the first time in over 30 years, the House of Representatives was confronted with the task of investigating and impeaching not one, but two, federal judges. After the House fulfilled its constitutional responsibility as the chamber with the “sole Power of Impeachment,” the Senate was faced with executing its constitutional responsibility to “try all Impeachments.” One of these judges, Samuel B. Kent of the Southern District of Texas, resigned before the Senate could complete his trial. The second, Judge G. Thomas Porteous, Jr., of the Eastern District of...

The Origination Clause of the U.S. Constitution: Interpretation and Enforcement

Article I, Section 7, clause 1 of the U.S. Constitution is known as the Origination Clause because it provides that “All Bills for raising Revenue shall originate in the House of Representatives.” The meaning and application of this clause has evolved through practice and precedent since the Constitution was drafted.

The Constitution does not provide specific guidelines as to what constitutes a “bill for raising revenue.” This report analyzes congressional and court precedents regarding what constitutes such a bill. The precedents and practices of the House apply a broad standard and...

Selected Theories of Constitutional Interpretation

The United States Constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government (and, to a lesser extent, state governments), and, finally, a series of legal disabilities on the exercise of those authorities (such as protections for individual rights). The document also addresses the complicated legal relationship between the federal government, state governments, and the persons subject to their respective jurisdictions. Judicial interpretation of some of the Constitution’s provisions, however, has...

Faith-Based Funding: Legal Issues Associated with Religious Organizations That Receive Public Funds

Beginning in 1996, Congress enacted several pieces of legislation that included provisions that have become known as charitable choice rules. Included in legislation for various federally funded social service programs, charitable choice rules were aimed at ensuring that faith-based organizations could participate in federally funded social service programs like other nongovernmental providers. The rules allow religious organizations to receive public funding to offer social services without abandoning their religious character or infringing on the religious freedom of program...

The European Union’s Reform Process: The Lisbon Treaty

The Lisbon Treaty, the latest institutional reform treaty of the European Union (EU), went into effect on December 1, 2009. The document was signed by the heads of state or government of the 27 EU member countries in December 2007. The process of completing ratification by each individual member country lasted nearly two years, concluding with ratification by the Czech Republic on November 3, 2009. The Lisbon Treaty reforms the EU’s governing institutions and decision-making process to enable the EU to operate more effectively. The treaty grew out of the proposed “constitutional treaty”...

Public Display of the Ten Commandments and Other Religious Symbols

Over the past few decades, the U.S. Supreme Court has issued several decisions regarding public displays of religious symbols. Although a few of these cases have involved temporary religious holiday displays, the more recent cases have involved permanent monuments of religious symbols, specifically the Ten Commandments. In 1980, the Supreme Court held in Stone v. Graham that a Kentucky statute requiring the posting of a copy of the Ten Commandments on the wall of each public school classroom in the state had no secular legislative purpose and was therefore unconstitutional. The Court did...

Military Personnel and Freedom of Religion: Selected Legal Issues

The First Amendment of the U.S. Constitution provides the freedom to individuals to exercise their religious beliefs without governmental interference, and simultaneously prohibits government actions that benefit followers of one faith over another. At times, when government actions would otherwise burden individuals’ religious exercise, the government makes efforts to accommodate the religious practice. However, accommodation of religion to prevent violations of the Free Exercise Clause must be carefully considered in order to prevent violation of the Establishment Clause.

The tension...

Sources of Constitutional Authority and House Rule XII, Clause 7(c)

On January 5, 2011, the House of Representatives adopted an amendment to House Rule XII adding a requirement to all measures introduced in the House of Representatives that are intended to become law. Specifically, Rule XII, clause 7(c) requires that, to be accepted for introduction by the House Clerk, all bills (H.R.) and joint resolutions (H.J.Res.) must provide a document stating “as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.” The requirement is mandatory, and the House Clerk appears to have the...

Guantanamo Detention Center: Legislative Activity in the 111th Congress

The detention of alleged enemy belligerents at the U.S. Naval Station in Guantanamo Bay, Cuba, together with proposals to transfer some such individuals to the United States for prosecution or continued detention, has been a subject of considerable interest for Congress. Several authorization and appropriations measures enacted during the 111th Congress addressed the disposition and treatment of Guantanamo detainees. This report analyzes legislation enacted in the 111th Congress concerning persons held at the Guantanamo detention facility.

Nine laws that were enacted during the 111th...

Harbor Maintenance Trust Fund Expenditures

In 1986, Congress enacted the Harbor Maintenance Tax (HMT) to recover operation and maintenance (O&M) costs at U.S. coastal and Great Lakes harbors from maritime shippers. O&M is mostly the dredging of harbor channels to their authorized depths and widths. The tax is levied on importers and domestic shippers using coastal or Great Lakes ports. Due to a Supreme Court decision in 1998, exporters no longer pay the tax because it was found unconstitutional. The tax is assessed at a rate of 0.125% of cargo value ($1.25 per $1,000 in cargo value). The tax revenues are deposited into the Harbor...

Statutory Damage Awards in Peer-to-Peer File Sharing Cases Involving Copyrighted Sound Recordings: Recent Legal Developments

The Copyright Act allows statutory damages of between $750 and $30,000 for each act of infringement, and up to $150,000 in cases where the infringement is committed willfully. Congress granted the copyright owner the power to choose to recover either statutory damages or the owner’s actual damages plus additional profits of the infringer at any time before final judgment is rendered. Statutory damages serve both compensatory and deterrent purposes: they provide the copyright owner with restitution of profit and reparation for the harm suffered by the owner in situations where it may be...

Habeas Corpus Legislation in the 111th Congress

Federal habeas corpus is the process under which those in official detention may petition a federal court for their release based on an assertion that they are being held in violation of the Constitution or laws of the United States. Major habeas legislative activity in the 111th Congress fell within three areas: proposals to permit state death row inmates to seek habeas relief based on evidence that they are probably innocent (H.R. 3320 and H.R. 3986); proposals to amend federal law in response to the Supreme Court’s determination that the level of judicial review afforded Guantanamo...

Location-Based Preferences in Federal and Federally Funded Contracting: An Overview of the Law

This report discusses constitutional and other legal issues related to the creation and implementation of location-based preferences in federal contracting, as well as summarizes key authorities requiring or allowing federal agencies to "favor" contractors located in specific places. The report does not address federal preferences for domestic products or provisions of federal law that could, depending upon their implementation, effectively prefer local contractors, such as project labor agreements.

Legislative Approaches to Defining “Waters of the United States”

In the 111th Congress, legislation was introduced that sought to clarify the scope of the Clean Water Act (CWA) in the wake of Supreme Court decisions in 2001 and 2006 that interpreted the law’s jurisdiction more narrowly than prior case law. The Court’s narrow interpretation involved jurisdiction over some geographically isolated wetlands, intermittent streams, and other waters. The two cases are Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) and Rapanos v. United States.

Bills to nullify the Court’s rulings have been introduced repeatedly since the 107th...

Congressional Redistricting: The Constitutionality of Creating an At-Large District

This report discusses the constitutionality of legislation, such as the District of Columbia House Voting Rights Act of 2009, H.R. 157 (111th Congress), that would create an at-large congressional district. While it is not without doubt, based on the authority granted to Congress under the Constitution to regulate congressional elections and relevant Supreme Court precedent, it appears that federal law establishing a temporary at-large congressional district would likely be upheld as constitutional.

H.R. 157, among other provisions, would expand the U.S. House of Representatives by two...

English as the Official Language of the United States: Legal Background

Congressional proposals to install English as the official language of the United States reflect yet another aspect of the complicated ongoing national debate over immigration policy. The modern “Official English” movement may be traced to the mid-1980s, when various proposals to achieve linguistic uniformity by constitutional amendment were considered. While these earlier federal efforts failed, some legislation promoting official English laws at the state level was more successful. At least 30 states have laws declaring English to be the official state language.

In response, renewed...

State and Local Restrictions on Employing, Renting Property to, or Providing Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments

An estimated 37 million foreign-born persons currently reside in the United States, almost a third of whom may be present without legal authorization. The reaction of state and local jurisdictions to unauthorized immigration has varied. In some cases, states and localities have adopted measures intended to deter unlawfully present aliens from arriving and settling within their jurisdictions, including by restricting such aliens’ access to work, housing, and benefits. Typically, such measures have sought to (1) limit the hiring and employment of unauthorized aliens, including through the...

“Don’t Ask, Don’t Tell”: Military Policy and the Law on Same-Sex Behavior

In 1993, new laws and regulations pertaining to homosexuality and U.S. military service came into effect reflecting a compromise in policy. This compromise, colloquially referred to as “don’t ask, don’t tell,” (DADT), holds that the presence in the armed forces of persons who demonstrate a propensity or intent to engage in same-sex acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion which are the essence of military capability. Under this policy, but not the law, service members are not to be asked about nor allowed to...

Military Recruitment on High School and College Campuses: A Policy and Legal Analysis

In recent years, many academic institutions have enacted rules that protect individuals who are gay from discrimination on campus. As a result, some high schools and institutions of higher education have sought to bar military recruiters from their campuses and/or to eliminate Reserve Officer Training Corps (ROTC) programs on campus in response to the military’s “Don’t Ask, Don’t Tell” (DADT) policy, which prohibits homosexual conduct by members of the armed services. These efforts, however, have largely been thwarted due to several laws that bar giving federal funds to campuses that block...

Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice

For the first time since the judicial impeachments of 1986-1989, the House of Representatives has impeached two federal judges. On June 19, 2009, the House voted to impeach U.S. District Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas. The impeachment trial of Judge Kent before the Senate was dismissed after Judge Kent resigned from office and the House indicated that it did not wish to pursue the matter further.

The impeachment inquiry with respect to U.S. District Court Judge G. Thomas Porteous, Jr., from the Eastern District of Louisiana was initiated...

The Public Safety Employer-Employee Cooperation Act

Since 1995, legislation that would guarantee collective bargaining rights for state and local public safety officers has been introduced in Congress. The Public Safety Employer-Employee Cooperation Act (PSEECA)—introduced in the 111th Congress as H.R. 413 by Representative Dale E. Kildee, S. 1611 by Senator Judd Gregg, and S. 3194 and S. 3991 by Senator Harry Reid—would recognize such rights by requiring compliance with federal regulations and procedures if these rights are not provided under state law. Supporters of the measure maintain that strong partnerships between public safety...

Bills and Resolutions: Examples of How Each Kind Is Used

When Congress seeks to pass a law, it uses a bill or joint resolution, which must be passed by both houses in identical form, then presented to the President for his approval or disapproval. To regulate its own internal affairs, or for other purposes where authority of law is not necessary, Congress uses a concurrent resolution (requiring adoption by both houses) or a simple resolution (requiring action only in the house of origin).

Bills are usually used for lawmaking purposes such as authorizing programs, appropriating funds, raising revenues, and other major policy enactments. Joint...

Hate Crime Legislation

This report provides an overview of the hate crime debate, with background on current law and hate crime statistics, and a legislative history of hate crime prevention bills in recent Congresses. This report does not analyze the constitutional or other legal issues that often arise as part of the hate crime debate.

Extensively Drug-Resistant Tuberculosis (XDR-TB): Emerging Public Health Threats and Quarantine and Isolation

The international saga of Andrew Speaker, a traveler thought to have XDR-TB, a drug-resistant form of tuberculosis, placed a spotlight on existing mechanisms to contain contagious disease threats and raised numerous legal and public health issues. This report presents the factual situation presented by Andrew Speaker. It also discusses the application of various public health measures available to contain an emerging public health threat posed by an individual who ignores medical advice and attempts to board an airplane or take other forms of public transportation. These measures include...

Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview

The federal three strikes provision calls for a mandatory term of life imprisonment for defendants convicted of a serious violent felony who have two or more federal or state serious violent felony convictions or one or more of such felony conviction plus one or more federal or state serious drug conviction, 18 U.S.C. 3559(c). The qualifying violent felonies are those specifically enumerated within the section—murder, rape, violent robberies, extortion, among others—as well as unenumerated felonies, that is, any state and federal 10-year felony that involves the fact or risk of physical...

The Use of Seclusion and Restraint in Public Schools: The Legal Issues

Seclusion and restraint have been used in various situations to deal with violent or noncompliant behavior. Because of congressional interest in the use of seclusion and restraint in schools, including passage of H.R. 4247 and the introduction of S. 2860, 111th Congress, first session, this report focuses on the legal issues concerning the use of these techniques in schools, including their application both to children covered by the Individuals with Disabilities Education Act (IDEA) and to those not covered by IDEA.

Several reports have documented instances of deaths and injuries...

Selected Church-State Issues in Elementary and Secondary Education

The Elementary and Secondary Education Act (ESEA) contains a number of separately authorized programs, which generally distribute funds by formulas that prescribe how funds are to be allocated among state educational agencies (SEAs) or local educational agencies (LEAs) nationwide. The ESEA raises a number of legal issues, particularly relating to the First Amendment, regarding state assistance or involvement in issues of religion or religious schools. As Congress considers whether to reauthorize the ESEA, it may be interested in the state of the law with respect to church-state issues in...

Beginning and End of the Terms of United States Senators Chosen to Fill Senate Vacancies

Under the Constitution, the Rules of the Senate, statutory law, and consistent Senate practice, an individual elected to the United States Senate in a special election during a session of Congress to succeed an appointed Senator may begin his or her term of office upon receipt by the Senate of “credentials” in proper form from the state, and by taking the constitutionally required oath of office in open Senate session. The appointed Senator who is being succeeded remains in office until the new “Senator-elect” is qualified (i.e., is sworn in and seated as a “Senator” by the Senate).

If a...

The SPEECH Act: The Federal Response to “Libel Tourism”

The 111th Congress considered several bills addressing “libel tourism,” the phenomenon of litigants bringing libel suits in foreign jurisdictions so as to benefit from plaintiff-friendly libel laws. Several U.S. states have also responded to libel tourism by enacting statutes that restrict enforcement of foreign libel judgments. On August 10, 2010, President Barack Obama signed into law the Securing the Protection of our Enduring and Established Constitutional Heritage Act (SPEECH Act), P.L. 111-223, codified at 28 U.S.C. §§ 4101-4105, which bars U.S. courts, both state and federal, from...

Campaign Finance Law and the Constitutionality of the “Millionaire’s Amendment”: An Analysis of Davis v. Federal Election Commission

The “Millionaire’s Amendment” is a shorthand description for a provision of the Bipartisan Campaign Reform Act of 2002 (BCRA), also known as the McCain-Feingold law, which established increased contribution limits for congressional candidates whose opponents significantly self-finance their campaigns. In 2008, in a 5-to-4 decision, Davis v. Federal Election Commission, the Supreme Court invalidated this provision. The Court found that the burden imposed on expenditures of personal funds is not justified by the compelling governmental interest of lessening corruption or the appearance of...

Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate

This report discusses the appointment of Supreme Court Justices, including the President's selection of a nominee and process to reach confirmation in the Senate. The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or never at all, during a particular President's years in office....

Federal Budget Process Reform in the 111th Congress: A Brief Overview

Procedural change is a recurrent feature of federal budgeting, although the scope and impact of changes may vary from year to year. In order to advance their budgetary, economic, or political objectives, both Congress and the President regularly propose and make changes to the federal budget process. This report briefly discusses the context in which federal budget process changes are made and identifies selected reform proposals by major category. The identification of reform proposals in this report is not intended to be comprehensive.

A variety of sources give rise to the interest in...

Infringement of Intellectual Property Rights and State Sovereign Immunity

The Eleventh Amendment to the U.S. Constitution provides that “[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Although the amendment appears to be focused on preventing suits against a state by non-residents in federal courts, the U.S. Supreme Court has expanded the concept of state sovereign immunity to reach much further than the literal text of the amendment, to include immunity from suits by...

Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues

In Citizens United v. FEC, the Supreme Court invalidated two provisions of the Federal Election Campaign Act (FECA), finding that they were unconstitutional under the First Amendment. The decision struck down the long-standing prohibition on corporations using their general treasury funds to make independent expenditures, and Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), prohibiting corporations from using their general treasury funds for “electioneering communications.” BCRA defines “electioneering communication” as any broadcast, cable, or satellite communication that...

Questioning Supreme Court Nominees About Their Views on Legal or Constitutional Issues: A Recurring Issue

This report discusses a recurring Senate issue regarding what kinds of questions are appropriate for Senators to pose to a Supreme Court nominee appearing at hearings before the Senate Judiciary Committee. Particularly at issue has been whether, or to what extent, questions by committee members should seek out a nominee's personal views on current legal or constitutional issues or on past Supreme Court decisions that have involved those issues.

Compulsory DNA Collection: A Fourth Amendment Analysis

Relying on different legal standards, courts have historically upheld laws authorizing law enforcement’s compulsory collection of deoxyribonucleic acid (DNA) as reasonable under the Fourth Amendment to the U.S. Constitution. However, prior cases reviewed the extraction of DNA samples from people who had been convicted on criminal charges. New state and federal laws authorize the collection of such samples from people who have been arrested or detained but not convicted. On the federal level, the U.S. Department of Justice implemented this expanded authority with a final rule that took...

Item Veto and Expanded Impoundment Proposals: History and Current Status

Conflicting budget priorities of the President and Congress accentuate the institutional tensions between the executive and legislative branches inherent in the federal budget process. Impoundment, whereby a President withholds or delays the spending of funds appropriated by Congress, provides an important mechanism for budgetary control during budget implementation in the executive branch; but Congress retains oversight responsibilities at this stage as well. Many Presidents have called for an item veto, or possibly expanded impoundment authority, to provide them with greater control over...

Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

President Obama has nominated his Solicitor General, Elena Kagan, to be the next Supreme Court Justice. If confirmed, she would fill the seat being vacated by Justice John Paul Stevens upon his retirement at the end of the 2009/2010 term. Prior to her term as Solicitor General, Ms. Kagan, in her capacity as an academic and scholar, wrote influential pieces analyzing free speech jurisprudence.

In particular, Ms. Kagan wrote a law review article entitled “Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine.” This article is best described as an attempt...

Post-Incarceration Controls of Convicted Sex Offenders

The United States witnessed increased attention to sex offender management policy at the federal, state, and local levels beginning in the 1990s. As a result, laws have been enacted which impose a variety of post-incarceration controls on sex offenders, including but not limited to registration and community notification requirements, civil commitment, global positioning system (GPS) monitoring and tracking, and residency restrictions. Two recent U.S. Supreme Court cases—United States v. Carr and United States v. Comstock—involved challenges to such controls passed at the federal level....

Supreme Court Nominee Elena Kagan: Presidential Authority and the Separation of Powers

In light of Elena Kagan’s nomination to serve as an Associate Justice of the United States Supreme Court, this report analyzes then-Professor Kagan’s views of executive power and the doctrine of separation of powers as laid most extensively out in her 2001 Harvard Law Review article Presidential Administration. This report will proceed as follows. First, it will briefly describe the constitutional and legal basis for presidential authority with respect to domestic policy, focusing on the relevant constitutional text as well as the Supreme Court jurisprudence that forms the foundation for...

Burma’s 2010 Elections: Implications of the New Constitution and Election Laws

On an undisclosed date in 2010, Burma plans to hold its first parliamentary elections in 20 years. The elections are to be held under a new constitution, supposedly approved in a national referendum held in 2008 in the immediate aftermath of the widespread destruction caused by Cyclone Nargis. The official results of the constitutional referendum are widely seen as fraudulent, but despite significant domestic and international opposition, Burma’s ruling military junta—the State Peace and Development Council (SPDC)—has insisted on conducting the polls as part of what it calls a path to...

The Jurisprudence of Justice John Paul Stevens: Leading Opinions on the Free Speech Clause of the First Amendment

Justice Stevens has authored a number of significant opinions expounding upon the constitutional right to freedom of speech. Among them are significant cases related to indecency and the rights of broadcasters (“Seven Dirty Words Case”), commercial speech, symbolic speech, and the freedom of association. This report will describe these cases with a view to their impact on free speech case law, and their continuing relevance in the future. This report will not discuss Justice Stevens’s election law-related opinions.

Rescission Actions Since 1974: Review and Assessment of the Record

The Impoundment Control Act (ICA) was included as Title X of the Congressional Budget and Impoundment Control Act of 1974, signed into law on June 12, 1974 (88 Stat. 332). Under the ICA, unless Congress takes action to approve a rescission request from the President within the 45-day review period prescribed by the law, the funds must be released. With respect to a presidential rescission message, Congress may approve more or less than the amount requested by the President. In addition, absent a specific request from the President, Congress on its own accord may initiate rescission...

Supreme Court Nominee Elena Kagan: Role in the Solomon Amendment Litigation

On May 10, 2010, President Obama nominated Elena Kagan to replace Justice John Paul Stevens as a member of the Supreme Court. Unlike the vast majority of other nominees to the Supreme Court, Kagan, a former dean at Harvard Law School (HLS) and current Solicitor General, has not been a member of the judiciary and therefore has never issued the judicial opinions that are a traditional source of insight into a nominee’s legal views. Nevertheless, Kagan has written, contributed to, or otherwise signaled agreement with a wide array of legal documents during the course of her career, and some...

The Jurisprudence of Justice John Paul Stevens: Selected Federalism Issues

Structurally, the Constitution establishes a federal government with discrete, limited powers, reserving authority not given to the federal government under the Constitution to the states and the people. The uncertain contours of this dual system have often resulted in Supreme Court decisions on the reach of the federal government’s limited powers and the core autonomy of the states. Congress, for example, has invoked the Commerce Clause to regulate local, and sometimes non-economic, activities that historically have been subject to regulation under state police powers. Also, Congress has...

The Jurisprudence of Justice John Paul Stevens: The Constitutionality of Congressional Term Limits and the Presidential Line Item Veto

Justice John Paul Stevens authored the majority opinions in both U.S. Term Limits, Inc. v. Thornton and Clinton v. City of New York, which struck down term limits for federal legislators and the federal Line Item Veto Act, respectively. While the Supreme Court seems unlikely to address the constitutionality of term limits or the line-item veto in the future, Justice Stevens’s conclusion that the absence of constitutional provisions expressly authorizing the exercise of certain powers constitutes a denial of these powers seems likely to influence the Court in the future, particularly in...

The Jurisprudence of Justice John Paul Stevens: Leading Opinions on the Death Penalty

Justice Stevens’s position on the death penalty has undergone a thorough transformation during his tenure on the Court. Although Stevens initially supported the imposition of the death penalty in accordance with adequately protective state enacted guidelines, over the next 35 years the Justice has voted to narrow the application of the death penalty as he has become more skeptical of the punishment’s underlying rationale and the states’ ability to protect the rights of capital defendants. In 2008, Justice Stevens’s death penalty jurisprudence may have culminated with his concurring opinion...

Haiti Earthquake: Crisis and Response

The largest earthquake ever recorded in Haiti devastated parts of the country, including the capital, on January 12, 2010. The quake, centered about 15 miles southwest of Port-au-Prince, had a magnitude of 7.0. A series of strong aftershocks have followed. Experts estimate the earthquake caused $8 to $14 billion in damage. Approximately 3 million people, roughly one-third of the overall population, have been affected by the earthquake with estimates ranging from 1.2 to 2 million people displaced. The government of Haiti is reporting an estimated 230,000 deaths and 300,600 injured. In the...

Presenting Measures to the President for Approval: Possible Delays

The Constitution requires Congress to present each measure it enacts to the President for approval. In contrast, the Constitution requires the President to act on measures within 10 days of their presentment and is silent on the amount of time that may elapse before Congress presents each measure to the President. Not being subject to a constitutional constraint, Congress has sometimes temporarily withheld enrolled measures from presentment, either when the President is absent or to avoid a possible pocket veto.

Before an enrolled measure can be presented to the President, it must be...

Department of Homeland Security Assistance to States and Localities: A Summary and Issues for the 111th Congress

In light of lessons learned from the September 2001 terrorist attacks and other catastrophes such as Hurricanes Katrina and Gustav, the second session of the 111th Congress is expected to consider questions and issues associated with federal homeland security assistance. Federal homeland security assistance, for the purpose of this report, is defined as U.S. Department of Homeland Security programs that provide funding, training, or technical assistance to states, localities, tribes, and other entities to prepare for, respond to, and recover from man-made and natural disasters. Since the...

The Export Administration Act: Evolution, Provisions, and Debate

The 111th Congress may consider legislation to renew, modify, or reauthorize the Export Administration Act (EAA). On July 31, 2009, Representative Sherman introduced the Export Control Improvements Act (H.R. 3515), co-sponsored by Representative Manzullo and Representative A. Smith, that contains provisions on export controls enforcement, integration of export control data in the AES, and diversion control. The House Foreign Affairs Committee is also reportedly working to produce as comprehensive rewrite of the EAA. As part of the Administration’s export control review, Defense Secretary...

The War Powers Resolution: After Thirty-Six Years

This report discusses and assesses the War Powers Resolution and its application since enactment in 1973, providing detailed background on various cases in which it was used, as well as cases in which issues of its applicability were raised.

District of Columbia Voting Representation in Congress: An Analysis of Legislative Proposals

This report provides a summary and analysis of legislative proposals that would provide voting representation in Congress to residents of the District of Columbia. Since the issue of voting representation for District residents was first broached in 1801, Congress has considered five legislative options: (1) seek voting rights in Congress by constitutional amendment, (2) retrocede the District to Maryland (retrocession), (3) allow District residents to vote in Maryland for their representatives to the House and Senate (semi-retrocession), (4) grant the District statehood, and (5) define...

Super-Majority Votes in the Senate

The Senate has long been known for its emphasis on minority rights, for it provides extensive procedural protections to individuals and minority coalitions. Yet most issues in the Senate are decided by a simple majority vote: one-half-plus-one of the Members voting, assuming the presence of a quorum. For instance, if all 100 Senators vote, the winning margin is at least 51—one more than half the membership of the Senate. Under Senate precedents, “[a] tie vote on a question defeats it.”

Some super-majority votes, however, are explicitly specified in the Constitution; implicitly, they also...

“Political” Activities of Private Recipients of Federal Grants or Contracts

This report discusses the permissible “political activities” in which organizations, associations, or businesses may engage if such entities receive federal funds through a grant or a federal contract. When discussing “political” activities by private grantees or contract recipients, this report includes lobbying or advocating for legislative programs or changes; campaigning for, endorsing, making campaign related expenditures, or contributing to political candidates or parties; and voter registration or get-out-the-vote campaigns.

Generally, organizations or entities which receive federal...

Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court

After the Supreme Court held that federal courts have jurisdiction under the federal habeas corpus statute to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the conflict against Al Qaeda and associated groups (Rasul v. Bush), the Pentagon established administrative hearings, called “Combatant Status Review Tribunals” (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue habeas relief in federal court. Lawyers subsequently filed dozens of petitions on...

Minority Contracting and Affirmative Action for Disadvantaged Small Businesses: Legal Issues

Since the early 1960s, minority participation “goals” have been an integral part of federal policies to promote racial and gender equality in contracting on federally financed construction projects and in connection with other large federal contracts. Federal contract “set-asides” and minority subcontracting goals evolved from Small Business Administration (SBA) programs to foster participation in the federal procurement process by small disadvantaged businesses (SDBs), or small businesses owned and controlled by “socially and economically disadvantaged” individuals. Minority group members...

Automated Political Telephone Calls (“Robo Calls”) in Federal Campaigns: Overview and Policy Options

Prerecorded telephone messages that provide information about political candidates or urge voters to go to the polls are a common campaign tactic. Anecdotal accounts suggest that the public often objects to the volume and frequency of these automated political calls (also called “auto calls” or “robo calls”). Despite often negative anecdotal information about automated political calls, they remain an inexpensive, effective way to reach hundreds or thousands of voters quickly. Campaigns and groups often rely on automated political calls to respond to last-minute campaign developments.

Four...

German Foreign and Security Policy: Trends and Transatlantic Implications

German Chancellor Angela Merkel began her first term in office in November 2005 and was elected to a second term in September 2009. Most observers agree that under her leadership, relations between the United States and Germany have improved markedly since reaching a low point in the lead-up to the Iraq war in 2003. U.S. officials and many Members of Congress view Germany as a key U.S. ally, have welcomed German leadership in Europe, and voiced expectations for increased U.S.-German cooperation on the international stage.

German unification in 1990 and the end of the Cold War represented...

Prosecutorial Discretion in the Context of Corporate Attorney-Client Relations: A Sketch

The Justice Department enjoys prosecutorial discretion to bring criminal charges against a corporation, its culpable officers or employees, or both. For a corporation, indictment alone can be catastrophic, if not fatal, in some instances. The Thompson Memorandum, since replaced with guidelines in the U. S. Attorneys Manual, described the policy factors to be considered in the exercise of prosecutorial discretion. Two of the factors explicitly mentioned were whether a corporation had waived its privileges and whether it had cut off the payment of attorneys’ fees for its officers and...

Prosecutorial Discretion in the Context of Corporate Attorney-Client Relations

The Justice Department enjoys prosecutorial discretion to bring criminal charges against a corporation, its culpable officers or employees, or both. For a corporation, indictment alone can be catastrophic, if not fatal, in some instances. The Thompson Memorandum, since replaced with guidelines in the U. S. Attorneys Manual, described the policy factors to be considered in the exercise of prosecutorial discretion. Two of the factors explicitly mentioned were whether a corporation had waived its privileges and whether it had cut off the payment of attorneys’ fees for its officers and...

Iraq: Oil and Gas Sector, Revenue Sharing, and U.S. Policy

Development in Iraq’s oil and natural gas sector is proceeding, amid ongoing debates. Iraqis differ strongly on a number of key issues, including the proper role and powers of federal and regional authorities in regulating oil and gas development; the terms and extent of potential foreign participation in the oil and gas sectors; and proposed formulas and mechanisms for equitably sharing oil and gas revenue. Concurrent, related discussions about the administrative status of the city of Kirkuk and proposed amendments to articles of Iraq’s constitution that outline federal and regional oil...

Honduran Political Crisis, June 2009-January 2010

On June 28, 2009, the Honduran military detained President Manuel Zelaya and flew him to exile in Costa Rica, ending 27 years of uninterrupted democratic, constitutional governance. Honduran governmental institutions had become increasingly polarized in the preceding months as a result of Zelaya’s intention to hold a non-binding referendum and eventually amend the constitution. After the ouster, the Honduran Supreme Court asserted that an arrest warrant had been issued for Zelaya as a result of his noncompliance with judicial decisions that had declared the non-binding referendum...

Federal Tort Reform Legislation: Constitutionality and Summaries of Selected Statutes

This report considers the constitutionality of federal tort reform legislation, such as the products liability and medical malpractice reform proposals that have been introduced for the last several Congresses. Tort law at present is almost exclusively state law rather than federal law, although, as noted in the appendix to this report, Congress has enacted a number of tort reform statutes.

Part I of this report concludes that Congress has the authority to enact tort reform legislation generally, under its power to regulate interstate commerce, and to make such legislation applicable to...

Globalized Supply Chains and U.S. Policy

In the globalized world of business, production is becoming fragmented into discrete activities and can be spread geographically within and across national borders while remaining integrated organizationally within a multinational company or network of companies. Such globalized production networks are called supply chains or value-added networks. This world of supply chains raises both challenges and opportunities for U.S. policymakers, firms, and workers.

The globalization of production networks has raised policy issues and has called into question certain long-held perceptions about the...

The Constitutionality of Regulating Corporate Expenditures: A Brief Analysis of the Supreme Court Ruling in Citizens United v. FEC

In a 5-to-4 ruling, the Supreme Court in Citizens United v. FEC invalidated two provisions of the Federal Election Campaign Act (FECA), codified at 2 U.S.C. § 441b. It struck down the long-standing prohibition on corporations using their general treasury funds to make independent expenditures, and Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), which amended FECA, prohibiting corporations and labor unions from using general treasury funds for “electioneering communications.” The Court determined that these restrictions constitute a “ban on speech” in violation of the...

Constitutional Limits on Punitive Damages Awards: An Analysis of Supreme Court Precedent

In civil cases, courts sometimes award punitive (or exemplary) damages in addition to compensatory damages. Compensatory damages are meant to redress the “loss the plaintiff has suffered by reason of the defendant’s wrongful conduct,” in an attempt to “compensate” the injured person for the loss suffered. Where a defendant has engaged in particularly egregious conduct, however, punitive damages can be awarded in addition to compensatory damages. A punitive damages award will generally exceed the actual value of the harm caused by the defendant. Although the permissible motivations behind...

Affirmative Action in Employment: A Legal Overview

This report discusses current constitutional and statutory requirements related to affirmative action in employment. Seeds of the legal controversy regarding affirmative action may be traced to the early 1960s as the Supreme Court grappled with the seemingly intractable problem of racial segregation in the nation’s public schools. Judicial rulings from this period recognized an “affirmative duty,” cast upon local school boards by the Equal Protection Clause of the U.S. Constitution, to desegregate formerly “dual school” systems and to eliminate “root and branch” the last “vestiges” of...

Constitutional Limits on Hate Crime Legislation

Federal and state legislators recognize the special concerns and effects of hate crimes. Although there is some federal legislation in place, many states have enacted some form of ethnic intimidation law or bias-motivated sentence-enhancement factors in attempts to curtail hate crimes. Several United States Supreme Court cases provide the framework in which states must legislate to ensure the constitutionality of hate crime legislation. After these landmark cases, the real questions for states involve identifying permissible ways to curtail hate crimes without infringing on any...

NATO Enlargement: Senate Advice and Consent

On July 21, 1949, the Senate gave its advice and consent to ratification of the North Atlantic Treaty. That treaty bound twelve states—the United States, Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, and Great Britain—in a pact of mutual defense and created the North Atlantic Treaty Organization (NATO). NATO now has a membership of 28 states. This enlargement has occurred gradually—Greece and Turkey joined in 1952; the Federal Republic of Germany in 1955; Spain in 1982; Poland, Hungary, and the Czech Republic in 1998; Bulgaria, Estonia,...

Congressional Redistricting: A Legal Analysis of the Supreme Court Ruling in League of United Latin American Citizens (LULAC) v. Perry

In a splintered, complex decision, the U.S. Supreme Court in League of United Latin American Citizens (LULAC) v. Perry largely upheld a Texas congressional redistricting plan that was drawn mid-decade against claims of unconstitutional partisan gerrymandering. The Court invalidated one Texas congressional district, District 23, finding that it diluted the voting power of Latinos in violation of Section 2 of the Voting Rights Act. While not ruling out the possibility of a claim of partisan gerrymandering being within the scope of judicial review, a majority of the Court in this case was...

International Social Security Agreements

International Social Security agreements are bilateral agreements primarily intended to eliminate dual Social Security taxation based on the same work and provide benefit protection for workers who divide their careers between the United States and a foreign country. Most jobs in the United States are covered by Social Security. In addition, the Social Security Act extends Social Security coverage to U.S. citizens and resident aliens who are employed abroad by U.S. companies as well as those who are self-employed in a foreign country. Generally, a U.S. worker abroad and his or her employer...

The Constitutionality of Regulating Political Advertisements: An Analysis of Federal Election Commission v. Wisconsin Right to Life, Inc.

Voting 5-4, the U.S. Supreme Court in the 2007 decision FEC v. Wisconsin Right to Life, Inc. (WRTL II) held that a provision of the Bipartisan Campaign Reform Act of 2002 (BCRA), prohibiting corporate or labor union treasury funds from being spent on advertisements broadcast within 30 days of a primary or 60 days of a general election, was unconstitutional as applied to ads that Wisconsin Right to Life, Inc. sought to run. While not expressly overruling its 2003 ruling in McConnell v. FEC, which upheld the BCRA provision against a First Amendment facial challenge, the Court limited the...

Federal Habeas Corpus: A Brief Legal Overview

Federal habeas corpus is a procedure under which a federal court may review the legality of an individual’s incarceration. It is most often the stage of the criminal appellate process that follows direct appeal and any available state collateral review. The law in the area is an intricate weave of statute and case law.

Current federal law operates under the premise that with rare exceptions prisoners challenging the legality of the procedures by which they were tried or sentenced get “one bite of the apple.” Relief for state prisoners is only available if the state courts have ignored or...

Federal Habeas Corpus: An Abridged Sketch

Federal habeas corpus is a procedure under which a federal court may review the legality of an individual’s incarceration. It is most often the stage of the criminal appellate process that follows direct appeal and any available state collateral review. The law in the area is an intricate weave of statute and case law.

Current federal law operates under the premise that with rare exceptions prisoners challenging the legality of the procedures by which they were tried or sentenced get “one bite of the apple.” Relief for state prisoners is only available if the state courts have ignored or...

Private Security Contractors in Iraq and Afghanistan: Legal Issues

U.S. departments and agencies contributing to combat or stability operations overseas are relying on private firms to perform a wider scope of security services than was previously the case. The use of private security contractors (PSCs) to protect personnel and property in Iraq and Afghanistan has been a subject of debate in the press, in Congress, and in the international community. While PSCs are widely viewed as being vital to U.S. efforts in the region, many Members are concerned about transparency, accountability, and legal and symbolic issues raised by the use of armed civilians to...

Uruguay: Political and Economic Conditions and U.S. Relations

On November 29, 2009, Senator José “Pepe” Mujica of the ruling center-left Broad Front coalition was elected president of Uruguay, a relatively economically developed and politically stable South American country of 3.5 million people. Mujica, a former leader of the leftist Tupamaro urban guerilla movement that fought against the Uruguayan government in the 1960s and 1970s, defeated former President Luis Alberto Lacalle (1990-1995) of the center-right National Party in the country’s sixth consecutive democratic election since its 12-year dictatorship ended in 1985. Mujica was forced to...

Protection of Children Online: Federal and State Laws Addressing Cyberstalking, Cyberharassment, and Cyberbullying

While Congress, under the Commerce Clause, has authority to regulate the Internet, Internet “harassment” presents new challenges for legislators in terms of defining and prosecuting such activity. Definitions for these terms vary based upon jurisdiction. Internet harassment usually encompasses “cyberstalking,” “cyberharassment,” and/or “cyberbullying.” If one were to categorize these offenses based on danger or greatest potential harm, cyberstalking would be the most dangerous, followed by cyberharassment and then cyberbullying. Generally, cyberstalking includes a credible threat of harm,...

Presidential Terms and Tenure: Perspectives and Proposals for Change

The terms of the President and Vice President are set at four years by Article II, Section 1 of the Constitution. The 20th Amendment, ratified in 1933, sets the expiration date of these terms at noon on January 20 of each year following a presidential election.

From 1789 to 1940, chief executives adhered to a self-imposed limit of two terms, although only 7 of the 31 Presidents from 1789 through 1933 actually served two consecutive terms in office. The precedent was exceeded only once, by President Franklin D. Roosevelt, who was elected to four terms, and served from 1933 through 1945....

Judge Sonia Sotomayor: Analysis of Selected Opinions

In May 2009, Supreme Court Justice David Souter announced his intention to retire from the Supreme Court. Several weeks later, President Obama nominated Judge Sonia Sotomayor, who served on the U.S. Court of Appeals for the Second Circuit, to fill his seat. To fulfill its constitutional “advice and consent” function, the Senate considered Judge Sotomayor’s extensive record—compiled from years as a lawyer, prosecutor, district court judge, and appellate court judge—to better understand her legal approaches and judicial philosophy. On August 6, the Senate confirmed Justice Sotomayor by a...

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny

Political expression is at the heart of First Amendment activity and the Supreme Court has granted it great deference and protection. However, according to the Court in its landmark 1976 decision, Buckley v. Valeo, an absolutely free political marketplace is not required by the First Amendment—nor is it desirable—because without reasonable regulation, corruption will result. Most notably, the Buckley Court ruled that the spending of money in campaigns, whether as a contribution or an expenditure, is a form of “speech” protected by the First Amendment. The Court upheld some infringements on...

Requiring Disclosure of Gifts and Payments to Health Care Professionals: A Legal Overview

In recent years, questions have been raised over the propriety of certain financial relationships between health care professionals such as physicians, and the pharmaceutical and other medical industries. As part of these relationships, companies may give gifts or make payments to healthcare professionals as part of their marketing efforts, or for other purposes. In an effort to promote transparency and prevent inappropriate relationships, there has been interest in requiring disclosure of certain types of payments. Several states and the District of Columbia have enacted legislation...

Venezuela: Political Conditions and U.S. Policy, 2003-2009

Under the populist rule of President Hugo Chávez, first elected in 1998 and reelected to a six-year term in December 2006, Venezuela has undergone enormous political changes, with a new constitution and unicameral legislature, and a new name for the country, the Bolivarian Republic of Venezuela. U.S. officials and human rights organizations have expressed concerns about the deterioration of democratic institutions and threats to freedom of expression under President Chávez, who has survived several attempts to remove him from power. The government benefitted from the rise in world oil...

Mandating Dealership Agreements for Automakers Receiving Federal Funds: Constitutional Analysis

Auto dealers, which act as intermediaries between automakers and final consumers, are independent businesses with contracts with the automakers. As General Motors Corporation (Old GM) and Chrysler LLC (Old Chrysler) have moved through bankruptcy restructuring, the presence of these dealer contracts has been an important issue. In order to allow the automakers to downsize and seek a more competitive business model, the bankruptcy courts allowed both Old Chrysler and Old GM to cut their dealership networks. This allowed the new entities that bought the assets of the bankrupt companies,...

Constitutional Approaches to Continuity of Congressional Representation: Background and Issues for Congress

The terrorist attacks of September 11, 2001, subsequent biological incidents, and natural threats such as hurricanes or pandemic illness, have motivated consideration of contingency planning options in government and the private sector. In Congress, contingency planning includes the consideration of options for the succession of congressional leadership, or for filling multiple vacancies in either chamber that might occur due to wide-scale death of Members or their absence from Congress due to injury or incapacitation. Concerns have been expressed that current plans may be insufficient or...

Protecting the U.S. Perimeter: Border Searches Under the Fourth Amendment

This report first outlines the statutes authorizing certain federal officers to conduct warrantless searches. It then addresses the scope of the government's constitutional authority to search and seize persons and property at the border. It also describes the varying levels of suspicion generally required for each type of border search as interpreted by the courts. Finally, this report lists several bills before the 111th Congress that address border searches. This report does not address interior searches and seizures performed by immigration personnel since they are not traditional...

Fourth Amendment Protections Against Student Strip Searches: Safford Unified School District #1 v. Redding

The Fourth Amendment protects individuals from unreasonable searches and seizures. What a court determines to be “reasonable” depends on the nature of the search and its underlying governmental purpose.

This report provides an analysis of the U.S. Supreme Court’s 2009 decision, Safford Unified School District #1 v. Redding, which addressed the constitutionality of a strip search of a 13-year-old middle school student. Based on the facts of the case, the Court held that the school’s search of a student’s book bag and outer clothing was in accordance with the Fourth Amendment. However, as a...

House Resolutions of Inquiry

The resolution of inquiry is a simple House resolution that seeks factual information from the executive branch. Such resolutions are given privileged status under House rules and may be considered at any time after being properly reported or discharged from committee. Such resolutions apply only to requests for facts—not opinions—within an Administration’s control. This report explains the history, procedure, specific uses of resolutions of inquiry, and notes recent increases in their usage.

The examples in this report demonstrate that, historically, even when a resolution of inquiry is...

Service by a Member of Congress in the U.S. Armed Forces Reserves

The Incompatibility Clause of the U.S. Constitution states that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” This provision is generally understood to ensure the separation of powers by preventing Members of Congress from serving in two government posts at one time. The prohibition on simultaneous service in multiple offices of the government prevents the individual from exercising influence of one branch while serving in the office of another. To avoid related constitutional violations, Members generally are...

U.S.-Iraq Agreements: Congressional Oversight Activities and Legislative Response

On November 26, 2007, President Bush and Iraqi Prime Minister Nouri al Maliki co-signed the Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship Between the Republic of Iraq and the United States of America, which set out a number of issues concerning, among other things, a security agreement between the United States and Iraq. On November 17, 2008, the Bush Administration concluded a security agreement providing the legal basis for the continued presence, operation, and eventual withdrawal of U.S. armed forces in Iraq once the U.N. Security Council mandate...

Future of the Balkans and U.S. Policy Concerns

The United States, its allies, and local leaders have achieved substantial successes in the Balkans since the mid-1990s. The wars in the region have ended, and all of the countries are undertaking political and economic reforms at home and orienting their foreign policies toward Euro-Atlantic institutions. However, difficult challenges remain, including dealing with the impact of Kosovo’s independence; fighting organized crime, corruption, and enforcing the rule of law; bringing war criminals to justice; and reforming the economies of the region.

The goal of the United States and the...

USDA Authority to Regulate On-Farm Activity

In recent years, outbreaks of foodborne illnesses and subsequent product recalls have highlighted concerns about the current food safety system. Some have argued for a more comprehensive approach to the regulation of food products. Among the questions raised in the debate on the adequacy and potential improvements for the U.S. food safety system is the appropriate starting point of federal regulation. The current system provides regulation of various food products under differing systems of inspection and oversight. Advocates of a more comprehensive approach to food safety regulation say...

Obscenity and Indecency: Constitutional Principles and Federal Statutes

The First Amendment provides: “Congress shall make no law ... abridging the freedom of speech, or of the press.” In general, the First Amendment protects pornography, with this term being used to mean any erotic material. The Supreme Court, however, has held that the First Amendment does not protect two types of pornography: obscenity and child pornography. Consequently, they may be banned on the basis of their content, and federal law prohibits the mailing of obscenity, as well as its transport or receipt in interstate or foreign commerce.

Most pornography is not legally obscene; to be...

Authority of the Senate Over Seating Its Own Members: Exclusion of a Senator-Elect or Senator-Designate

This report is intended to provide a brief legal analysis of the authority of the Senate over the seating of its own Members, and the Senate’s power to exclude, that is, to refuse by majority vote to seat a Senator-elect or Senator-designate who presents valid credentials from state officials. Under Article I, Section 5, clause 1 of the Constitution, each house of Congress is granted the express authority to judge the “elections,” the “returns,” and the “qualifications” of its own Members. This explicit delegation in the Constitution grants the Senate broad authority to judge and to make...

Recess Appointments Made by President George W. Bush

Under the Constitution, the President and the Senate share the power to make appointments to the highest-level politically appointed positions in the federal government. The Constitution also empowers the President unilaterally to make a temporary appointment to such a position if it is vacant and the Senate is in recess. Such an appointment, termed a recess appointment, expires at the end of the following session of the Senate. This report identifies recess appointments made by President George W. Bush during his presidency. Basic descriptive statistics regarding these appointments are...

Retroactive Taxation of Executive Bonuses: Constitutionality of H.R. 1586 and S. 651

There has been significant controversy about the constitutionality of the legislative proposals (H.R. 1586 and S. 651) to tax bonuses paid to employees of entities receiving assistance from the federal government under the Emergency Economic Stabilization Act of 2008. Under H.R. 1586, the bonuses would be taxed as income to the employee at a rate of 90%. S. 651 would impose an excise tax equal to 35% of the bonus on both the employee and entity. Both bills would apply to bonuses received on or after January 1, 2009, in taxable years ending on or after that date. H.R. 1586 was passed by the...

Authority of State Legislatures to Accept Funds Under the American Recovery and Reinvestment Act of 2009 (P.L. 111-5)

This report analyzes the language contained in §1607 of the American Recovery and Reinvestment Act of 2009 (Recovery Act or ARRA; P.L. 111-5), which provides that federal funds can be made available to a state by the federal government either after certification by a governor that such money will be requested and spent or after the adoption of a concurrent resolution by a state legislature. Although the language of § 1607 is arguably ambiguous, it does not appear likely that it would have the effect of significantly reallocating power between a state legislature and a state executive...

Federal Sentencing Guidelines: Background, Legal Analysis, and Policy Options

Historically, the way in which convicted offenders are sentenced falls under one of two penal policies—indeterminate and determinate sentences. Indeterminate sentencing practices were predominant for several decades, leading up to the major reform efforts undertaken by many states and the federal government in the mid- to-late 1970s and early 1980s. The perceived failure of the indeterminate system to “cure” the criminal, coupled with renewed concern about the rising crime rate throughout the nation in the mid-1970s, resulted in wide experimentation with sentencing systems by many states...

Comprehensive National Cybersecurity Initiative: Legal Authorities and Policy Considerations

Federal agencies report increasing cyber-intrusions into government computer networks, perpetrated by a range of known and unknown actors. In response, the President, legislators, experts, and others have characterized cybersecurity as a pressing national security issue.

Like other national security challenges in the post-9/11 era, the cyber threat is multi-faceted and lacks clearly delineated boundaries. Some cyber attackers operate through foreign nations’ military or intelligence-gathering operations, whereas others have connections to terrorist groups or operate as individuals. Some...

Legal Issues Related to Funding for Religious Schools in P.L. 111-5, the American Recovery and Reinvestment Act of 2009 (ARRA)

The American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5) provides funding for various educational programs, including a State Fiscal Stabilization Fund. The State Fiscal Stabilization Fund (SFSF) provides federal funding to states to support elementary, secondary, and postsecondary education. Although federal money provided by the SFSF is available only to public elementary and secondary schools, public and private institutions of higher education are eligible to receive federal money from the SFSF. Because the Establishment Clause of the First Amendment limits the extent to...

The Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of Representatives or the Committee of the Whole

A variety of proposals were made in the 110th Congress regarding granting the Delegate of the District of Columbia voting rights in the House. On January 24, 2007, the House approved H.Res. 78, which changed the House Rules to allow the D.C. delegate (in addition to the Resident Commissioner of Puerto Rico and the delegates from American Samoa, Guam, and the Virgin Islands) to vote in the Committee of the Whole, subject to a revote in the full House if such votes proved decisive. A bill introduced by Delegate Eleanor Holmes Norton, H.R. 1905, the District of Columbia House Voting Rights...

Juvenile Delinquents and Federal Criminal Law: The Federal Juvenile Delinquency Act and Related Matters

Juvenile offenders of federal criminal law are primarily the responsibility of state juvenile court authorities. The Federal Juvenile Delinquency Act permits federal delinquency proceedings where state courts cannot or will not accept jurisdiction. Because a majority of the federal cases have historically arisen in areas beyond state jurisdiction, i.e., primarily Indian country, the majority of federal delinquency proceedings involve Native Americans. In the more serious of these cases, the juvenile offender may be transferred for trial as an adult in federal court.

The Act applies to...

Constitutionality of Proposals to Prohibit the Sale or Rental to Minors of Video Games with Violent or Sexual Content or “Strong Language”

It has been proposed that Congress prohibit the sale or rental to minors of video games that are rated “M” (mature) or “AO” (adults-only) by the Entertainment Software Ratings Board. This board is a non-governmental entity established by the Interactive Digital Software Association, and its ratings currently have no legal effect. The Board’s website sets forth the criteria for its “M” and “AO” ratings:

Titles rated M (Mature) have content that may be suitable for persons ages 17 and older. Titles in this category may contain intense violence, blood and gore, sexual content, and/or strong...

Whales and Sonar: Environmental Exemptions for the Navy's Mid-Frequency Active Sonar Training

This report discusses laws related to the protection of marine mammals when using mid-frequency active sonar including the Marine Mammal Protection Act (MMPA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the Coastal Zone Management Act (CZMA). The report discusses each of the laws generally, and then reviews the litigation surrounding the Navy's compliance with these laws in the context of using the sonar for training purposes off California's coast.

Electoral College Reform: 110th Congress Proposals, the National Popular Vote Campaign, and Other Alternative Developments

American voters elect the President and Vice President indirectly, through presidential electors. Established by Article II, Section 1, clause 2 of the U.S. Constitution, this electoral college system has evolved continuously since the first presidential elections. Despite a number of close contests, the electoral college system has selected the candidate with the most popular votes in 47 of 51 presidential elections since the current voting system was established by the 12th Amendment in 1804. In three cases, however, candidates were elected who won fewer popular votes than their...

Herring v. United States: Extension of the Good-Faith Exception to the Exclusionary Rule in Fourth Amendment Cases

The Fourth Amendment to the U.S. Constitution provides a right against “unreasonable searches and seizures.” To deter the federal and state governments from violating this right, courts have developed an “exclusionary rule,” which requires that evidence obtained as a result of an invalid search or seizure be excluded from use at trial.

The Supreme Court has narrowed the scope of the exclusionary rule in several cases since the late 1970s. In United States v. Leon, the Court created the “good-faith” exception to the exclusionary rule. The good-faith exception applies when officers conduct a...

Bolivia: Political and Economic Developments and Relations with the United States

Bolivia has experienced a period of political volatility, with the country having had six presidents since 2001. Evo Morales, an indigenous leader and head of Bolivia’s coca growers’ union, and his party, the leftist Movement Toward Socialism (MAS), won a convincing victory in the December 18, 2005, presidential election with 54% of the votes. Early in his term, President Morales moved to decriminalize coca cultivation and nationalized the country’s natural gas industry. His efforts to reform the Bolivian constitution have, until recently, been stymied by a strong opposition movement led...

527 Groups and Campaign Activity: Analysis Under Campaign Finance and Tax Laws

During recent election cycles, there has been controversy regarding the increased campaign-related activity of 527 groups and to what extent they are regulated under federal law. The controversy stems from the intersection between the Federal Election Campaign Act (FECA), which regulates “political committees,” and Section 527 of the Internal Revenue Code (IRC), which provides tax-exempt status to “political organizations.” Some groups that qualify for beneficial tax treatment as “political organizations” seemingly intend to influence federal elections in ways that may place them outside...

Abortion Law Development: A Brief Overview

In Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court determined that the Constitution protects a woman’s decision whether or not to terminate her pregnancy. In a companion case, Doe v. Bolton, 410 U.S. 179 (1973), the Court held further that a state may not unduly burden a woman’s fundamental right to abortion by prohibiting or substantially limiting access to the means of effectuating her decision. Rather than settle the issue, the Court’s decisions kindled heated debate and precipitated a variety of governmental actions at the national, state and local levels designed either to...

The Emoluments Clause: History, Law, and Precedents

With the announcements by President-elect Barack Obama that he intends to nominate several Members of Congress to various positions in the Executive Branch, questions regarding their constitutional eligibility in light of the plain language of the Emoluments Clause have been raised. This report provides an historical review of the Emoluments Clause, focusing on the debates at the time the clause was drafted, as well as the precedents adopted by Congress and the executive branch with respect to nominations where the issue has arisen.

The report also contains a legal analysis of the issues...

An Overview of the Presidential Pardoning Power

The Constitution of the United States of America imbues the President with broad authority to grant pardons and reprieves for offenses against the United States. This report provides an overview of the scope of the President’s pardoning power, the legal effects of a pardon, and the procedures that have traditionally been adhered to in the consideration of requests for pardons.

Members of Congress have introduced resolutions expressing the sense of Congress that the President either should or should not grant pardons to certain individuals or groups of individuals, such as H.Res. 9 in the...

Title IX and Single Sex Education: A Legal Analysis

Under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally funded education programs or activities, school districts have long been permitted to operate single-sex schools. In 2006, the Department of Education (ED) published Title IX regulations that, for the first time, authorized schools to establish single-sex classrooms as well. This report evaluates the regulations in light of statutory requirements under Title IX and the Equal Educational Opportunities Act (EEOA) and in consideration of constitutional equal protection requirements.

Campaign Finance Law: A Brief Overview of the Supreme Court Ruling in McConnell v. FEC

McConnell v. FEC, a 2003 U.S. Supreme Court decision, upheld the constitutionality of key portions of the Bipartisan Campaign Reform Act of 2002 (BCRA) against facial challenges. (BCRA, which amended the Federal Election Campaign Act [FECA], codified at 2 U.S.C. § 431 et seq., is also known as the McCain-Feingold campaign finance reform law). A 5 to 4 majority of the Court upheld restrictions on the raising and spending of previously unregulated political party soft money, and a prohibition on corporations and labor unions using treasury funds to finance “electioneering communications,”...

Bush Administration Policy Regarding Congressionally Originated Earmarks: An Overview

During the 110th Congress, the House of Representatives, the Senate, and the George W. Bush Administration have defined terms like congressional earmark, congressionally directed spending item, and earmark, and have provided some direction for how congressionally originated earmarks, according to these definitions, are to be handled. This report focuses on Bush Administration policy regarding earmarks originated by Congress and related issues. Specific definitions for the term earmark (and related terms, like congressional earmark, presidential earmark, and others) vary considerably and...

Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA): An Overview

The constitutional standard by which laws that burden an individual’s First Amendment right to exercise his religion are measured has evolved over the last half-century through U.S. Supreme Court decisions and legislative action by Congress in response to those decisions. After decades of requiring that laws burdening the free exercise of religion be subject to heightened judicial review, the Court reinterpreted that constitutional standard in the 1990 case of Employment Division v. Smith, deciding that the First Amendment provided narrower protection than the Court had previously...

The Senate: An Overview

Decisions made at the Constitutional Convention about the Senate still shape its organization and operation today. Several of these features merit discussion, because they highlight important and enduring characteristics of the Senate. These aspects include constituency, size, term of office, and special prerogatives. In addition, this report identifies a major constitutional change that the Founding Fathers could not foresee: the direct election of Senators.

Federal Farm Promotion (“Check-Off”) Programs

The U.S. Supreme Court in 2005 affirmed the constitutionality of the so-called beef check-off program, one of the 18 generic promotion programs for agricultural products that are now active nationally. Supporters view check-offs as economically beneficial self-help activities that need minimal government involvement or taxpayer funding. Producers, handlers, and/or importers are required to pay an assessment, usually deducted from revenue at time of sale—thus the name check-off. However, some farmers contend they are being “taxed” for advertising and related activities they would not...

Capital Punishment Legislation in the 110th Congress: A Sketch

Most capital offenses are state crimes. In 1994, however, Congress revived the death penalty as a federal sentencing option. More than a few federal statutes now proscribe offenses punishable by death. A number of bills were offered during the 110th Congress to modify federal law in the area. None were enacted. One, S. 447/H.R. 6875, would have abolished the federal death penalty. Another (H.J.Res. 80) would have amended the Constitution to abolish capital punishment as a sentencing alternative for either state or federal crimes. Other proposed amendments would have eased constitutional...

The Death Penalty: Capital Punishment Legislation in the 110th Congress

Most capital offenses are state crimes. In 1994, however, Congress revived the death penalty as a federal sentencing option. More than a few federal statutes now proscribe offenses punishable by death. A number of bills were offered during the 110th Congress to modify federal law in the area. None were enacted. One, S. 447 (Senator Feingold)/H.R. 6875 (Representative Kucinich), would have abolished the federal death penalty. Another, H.J.Res. 80 (Rep McCollum), would have amended the Constitution to abolish capital punishment as a sentencing alternative for either state or federal crimes....

Child Pornography: Constitutional Principles and Federal Statutes

The First Amendment provides: “Congress shall make no law ... abridging the freedom of speech, or of the press.” Although the First Amendment, in general, protects pornography, the Supreme Court has held that it does not protect two types of pornography: obscenity and child pornography. Consequently, the government may, and has, banned them.

Child pornography is material that visually depicts sexual conduct by children, and is unprotected by the First Amendment even when it is not legally obscene. Federal statutes, in addition to making it a crime to transport or receive child pornography...

Private Security Contractors in Iraq: Background, Legal Status, and Other Issues

The United States is relying heavily on private firms to supply a wide variety of services in Iraq, including security. From publicly available information, this is apparently the first time that the United States has depended so extensively on contractors to provide security in a hostile environment, although it has previously contracted for more limited security services in Afghanistan, Bosnia, and elsewhere. In Iraq, private firms known as Private Security Contractors (PSCs) serve to protect individuals, transport convoys, forward operating bases, buildings, and other economic...

Coal Excise Tax Refunds: United States v. Clintwood Elkhorn Mining Co.

In 1998, a U.S. district court held that the imposition of the coal excise tax, or black lung excise tax, on exported coal was unconstitutional. Refunding the tax has been controversial. This is because some coal producers and exporters attempted to bypass the limitations in the Internal Revenue Code’s refund scheme by bringing suit under the Export Clause in the Court of Federal Claims, seeking damages from the United States in the amount of coal excise taxes paid. The Federal Circuit Court of Appeals held there was Tucker Act jurisdiction to hear some of the suits and allowed them as an...

Do Not Mail Initiatives and Their Potential Effects: Possible Issues for Congress

Since 2007, at least 19 state legislatures have introduced legislation that would require the creation of state Do Not Mail (DNM) registries. In 2008, 12 states had pending DNM legislation. Although each state’s DNM initiative is unique, all attempt to curb the delivery of unsolicited advertising mail—often referred to as “junk mail or “direct mail marketing.” Each state’s bill would permit a resident to submit his or her name and address to a state agency or department, which would compile all the names and addresses into a registry that would then be distributed to direct mail marketers....

Judicial Salary: Current Issues and Options for Congress

Several federal judges, including the Chief Justice of the United States, have expressed concern over the level of judicial salary. Chief Justice Roberts has called the current levels of judicial salary a “constitutional crisis” that threatens the independence of the federal courts. The most common arguments for raising judicial salary claim that low judicial salaries (1) limit the ability of the federal judiciary to draw on a diverse pool of candidates for positions on the federal bench; (2) force federal judges concerned about their financial futures to resign from the bench before they...

Boumediene v. Bush: Guantanamo Detainees’ Right to Habeas Corpus

In the consolidated cases of Boumediene v. Bush and Al Odah v. United States, decided June 12, 2008, the Supreme Court held in a 5-4 opinion that aliens designated as enemy combatants and detained at the U.S. Naval Station in Guantanamo Bay, Cuba, have the constitutional privilege of habeas corpus. The Court also found that § 7 of the Military Commissions Act (MCA), which limited judicial review of executive determinations of the petitioners’ enemy combatant status, did not provide an adequate habeas substitute and therefore acted as an unconstitutional suspension of the writ of habeas....

Turkey: Update on Crisis of Identity and Power

Secularism has been one of the “fundamental and unchanging principles” guiding the Turkish Republic since its founding in 1923. It also has been the principle that has produced considerable domestic political tension. Over the years, political parties have emerged that appeared to challenge that principle and to strive to restore religion to a central place in the state. Each time, the party has eventually been banned from the political stage. The Justice and Development Party (AKP), formed in 2001, has Islamist roots and claims to be conservative and democratic. The AKP won the 2002 and...

Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments

This report discusses the background of claims of executive privilege, a right to preserve the confidentiality of information and documents in the face of legislative demands, ending with a look into how President George W. Bush has used them.

Congressional Investigations of the Department of Justice, 1920-2007: History, Law, and Practice

This report discusses the legislative oversight that is most commonly conducted through congressional budget, authorization, appropriations, confirmation, and investigative processes, and, in rare instances, through impeachment.

Governmental Drug Testing Programs: Legal and Constitutional Developments

Constitutional law on the subject of governmentally mandated drug testing is primarily an outgrowth of the Fourth Amendment prohibition on unreasonable searches and seizures. Judicial exceptions to traditional requirements of a warrant and individualized suspicion for “administrative” searches have been extended to random drug testing of public employees and school students where the government is able to demonstrate a “special need” beyond the demands of ordinary law enforcement. In the public employment setting, however, special needs analysis has largely been confined to relatively...

Revenue Legislation in the Congressional Budget Process

Most of the laws establishing the federal government’s revenue sources are permanent and continue year after year without any additional legislative action. Congress, however, typically enacts revenue legislation, changing some portion of the existing tax system, every year. Revenue legislation may include changes to individual and corporate income taxes, social insurance taxes, excise taxes, or tariffs and duties. This report provides a brief summary of the constitutional provisions and various procedural rules governing the congressional consideration of revenue legislation. For more...

Constitutionality of Requiring Sexually Explicit Material on the Internet to Be Under a Separate Domain Name

It has been proposed that there be a domain on the Internet exclusively for websites that contain sexually explicit material; it might be labeled “.xxx” to complement the current “.com,” “.org,” and others. Some propose making use of a “.xxx” domain voluntary, and a June 26, 2008, decision by the Internet Corporation for Assigned Names and Numbers (ICANN) to allow a virtually unlimited number of top-level domain names may make the voluntary use of “.xxx” possible in 2009. Others propose that Congress make use of “.xxx” mandatory for websites that contain sexually explicit material. This...

The Foreign Intelligence Surveillance Act (FISA): An Overview of Selected Issues

The current legislative and oversight activity with respect to electronic surveillance under the Foreign Intelligence Surveillance Act (FISA) has drawn national attention to several overarching issues. This report briefly outlines three such issues and touches upon some of the perspectives reflected in the ongoing debate. These issues include the inherent and often dynamic tension between national security and civil liberties, particularly rights of privacy and free speech; the need for the intelligence community to be able to efficiently and effectively collect foreign intelligence...

The Foreign Intelligence Surveillance Act (FISA): A Sketch of Selected Issues

The current legislative and oversight activity with respect to electronic surveillance under the Foreign Intelligence Surveillance Act (FISA) has drawn national attention to several overarching issues. This report briefly outlines three such issues and touches upon some of the perspectives reflected in the ongoing debate. These issues include the inherent and often dynamic tension between national security and civil liberties, particularly rights of privacy and free speech; the need for the intelligence community to be able to efficiently and effectively collect foreign intelligence...

Cyclone Nargis and Burma’s Constitutional Referendum

Cyclone Nargis struck the coast of Burma in the evening of May 2, 2008 and cut a path of destruction across the southern portion of the country. The storm left in its wake an official death toll of 84,537 and 53,836 more missing, and extensive damage to the nation’s premier agricultural areas. Some have speculated that the final number of dead is actually more than 130,000. Vital infrastructure was destroyed by the storm, severely limiting the ability to assess the loss of life and provide assistance to the survivors for weeks following the cyclone. In addition, much of Burma’s most...

Capital Punishment: Constitutionality for Non-Homicide Crimes Such as Child Rape

In Kennedy v. Louisiana, the United States Supreme Court, by a vote of 5 to 4, held that the 8th Amendment prohibits the death penalty for the rape of a child where the crime did not result and was not intended to result in the victim’s death. The Court established a bright-line rule regarding the constitutionality of imposing capital punishment for a non-homicide crime against an individual. After reviewing the history of the death penalty for other non-homicide crimes against individuals, state legislative enactments, and jury practices since 1964, the Court concluded that there was a...

Bosnia: Overview of Current Issues

Over 12 years since the Dayton accords ended the 1992-1995 Bosnian war, Bosnia’s future is still somewhat in question. Despite the country’s numerous postwar achievements, political and ethnic divisions remain strong, with many of Bosnia’s political leaders maintaining sharply polarized views on institutional and constitutional reforms, especially those concerning the Dayton-mandated entities (the Bosniak-Croat Federation and the Republika Srpska) and the central Bosnian government. In general, the Bosniak (or Muslim) parties have emphasized a stronger central government, while the Bosnian...

Delegation of the Federal Power of Eminent Domain to Nonfederal Entities

Congress has on several occasions delegated its power of eminent domain to entities outside the federal government—public and private corporations, interstate compact agencies, state and local governments, and even individuals. The constitutionality of such delegation, and of the exercise of such power by even private delegatees, is today beyond dispute. However, among delegatees with both federal and private characteristics, there is some subjectivity to deciding which to list in a report limited to “nonfederal entities.” For delegatees of federal eminent domain power listed here,...

The Constitutionality of Requiring Photo Identification for Voting: An Analysis of Crawford v. Marion County Election Board

In a splintered decision issued in April 2008, the Supreme Court upheld an Indiana statute requiring photo identification for voting, determining that lower courts had correctly decided that the evidence in the record was insufficient to support a facial attack on the constitutionality of the law. Written by Justice Stevens, the lead opinion in Crawford v. Marion County Election Board finds that the law imposes only “a limited burden on voters’ rights,” which is justified by state interests.

Parliamentary Reference Sources: Senate

The Senate’s procedures are determined not only by its standing rules, but also by its standing orders, published precedents, committee rules, and informal practices. Constitutional mandates and rule-making statutes also impose procedural requirements on the Senate, and rules of Senate party conferences can sometimes affect committee and floor action. Parliamentary reference sources set forth the text of these authorities or provide information about how and when they govern different parliamentary situations. This report discusses the coverage, format, and availability of three types of...

Enlargement Issues at NATO’s Bucharest Summit

NATO held a summit in Bucharest on April 2-4, 2008. A principal issue was consideration of the candidacies for membership of Albania, Croatia, and the Former Yugoslav Republic of Macedonia (FYROM, or the Republic of Macedonia). These states are small, with correspondingly small militaries, and their inclusion in the alliance cannot be considered strategic in a military sense. However, it is possible that they could play a role in the stabilization of southeastern Europe. The allies issued invitations only to Albania and Croatia.

At Bucharest NATO decided not to offer a Membership Action...

Pakistan’s 2008 Elections: Results and Implications for U.S. Policy

A stable, democratic, prosperous Pakistan actively working to counter Islamist militancy is considered vital to U.S. interests. Pakistan is a key ally in U.S.-led counterterrorism efforts. The history of democracy in Pakistan is a troubled one marked by ongoing tripartite power struggles among presidents, prime ministers, and army chiefs. Military regimes have ruled Pakistan directly for 34 of the country’s 60 years in existence, and most observers agree that Pakistan has no sustained history of effective constitutionalism or parliamentary democracy. In 1999, the democratically elected...

Parliamentary Reference Sources: House of Representatives

House procedures are based not solely on the code of Rules the chamber adopts at the start of each Congress, but also on constitutional mandates, published precedents reflecting authoritative rulings and interpretations of the foregoing authorities, procedural principles set forth in the manual of practice prepared by Jefferson, “rule-making” statutes, and practices that have developed without being formally adopted.. Rules adopted by committees and by the party conferences also serve as sources of parliamentary practice in the House. This report describes the coverage, format, and...

The REAL ID Act of 2005: Legal, Regulatory, and Implementation Issues

In 2005, Congress addressed the issue of national standards for drivers’ licenses and personal identification cards by passing The REAL ID Act of 2005 (REAL ID). The act contains a number of provisions relating to improved security for drivers’ licenses and personal identification cards, as well as instructions for states that do not comply with its provisions. In general, while REAL ID does not directly impose federal standards with respect to states’ issuance of drivers’ licenses and personal identification cards, states nevertheless appear compelled to adopt such standards and modify...

Constitutionality of Applying the FCC’s Indecency Restriction to Cable Television

Various federal officials have spoken in favor of extending the Federal Communication Commission’s indecency restriction, which currently applies to broadcast television and radio, to cable and satellite television. This report examines whether such an extension would violate the First Amendment’s guarantee of freedom of speech.

The FCC’s indecency restriction was enacted pursuant to a federal statute that, insofar as it was found constitutional, requires the FCC to promulgate regulations to prohibit the broadcast of indecent programming from 6 a.m. to 10 p.m. The FCC has found that, for...

The War Powers Resolution: After Thirty-Four Years

Congressional Authority to Limit U.S. Military Operations in Iraq

On October 16, 2002, President Bush signed the Authorization for Use of Military Force Against Iraq Resolution of 2002. Since the March 2003 invasion of Iraq, Congress has enacted appropriation bills to fund the continuation of the Iraq war, including military training, reconstruction, and other aid for the government of Iraq. In April, 2007, however, Congress passed a supplemental appropriations bill to fund the war that contained conditions and a deadline for ending some military operations. The President vetoed the bill, arguing in part that some of its provisions are unconstitutional....

Grassroots Lobbying: Constitutionality of Disclosure Requirements

The disclosure by professional lobbyists and commercial lobbying firms of expenditures or payments for “grassroots” lobbying campaigns continues to be an issue of importance to reformers both inside and outside of Congress. Legislative proposals, such as S. 1, 110th Congress and H.R. 4682, 109th Congress, had originally sought to extend public reporting requirements for some paid activities intended to stimulate “grassroots” lobbying. The lobbying and ethics reform legislation eventually enacted into law in 2007, the “Honest Leadership and Open Government Act of 2007” (P.L. 110-81,121...

Earmarks Executive Order: Legal Issues

On January 29, 2008, President George W. Bush signed Executive Order 13,457, “Protecting American Taxpayers from Government Spending on Wasteful Earmarks.” The order states that it is the policy of the federal government “to be judicious in the expenditure of taxpayer dollars.” In order “[t]o ensure the proper use of taxpayer funds,” the order provides that the number and cost of earmarks should be reduced, that their origin and purposes should be transparent; and that they should be included in the text of bills voted upon by Congress and presented to the President. For appropriations...

Section 527 Political Organizations: Background and Issues for Federal Election and Tax Laws

Several prominent groups organized under § 527 of the Internal Revenue Code (IRC) were prominent players in the 2004 presidential election, raising and spending approximately $435 million and being widely seen as having an impact on the outcome of the race. Yet, some so-called “527” organizations remain outside the purview of federal election law. Section 527, added to the IRC in 1975, provides tax-exempt status to federal, state, and local political organizations. At first, it was generally thought that, with respect to federal election activities, political organizations correlated...

Pakistan’s Scheduled 2008 Election: Background

A stable, democratic, prosperous Pakistan actively working to counter Islamist militancy is considered vital to U.S. interests. Pakistan is a key ally in U.S.-led counterterrorism efforts. The history of democracy in Pakistan is a troubled one marked by ongoing tripartite power struggles among presidents, prime ministers, and army chiefs. Military regimes have ruled Pakistan directly for 34 of the country’s 60 years in existence, and most observers agree that Pakistan has no sustained history of effective constitutionalism or parliamentary democracy. The United States has supported the...

The Constitutional Law of Property Rights “Takings”: An Introduction

This report introduces the Takings Clause of the Fifth Amendment: “[N]or shall private property be taken for public use, without just compensation.” The Clause, extensively explicated by the courts in recent decades, seeks to strike a balance between societal goals and the burdens imposed on property owners to achieve those goals. In filing a “taking action” in court, the property owner first must surmount threshold hurdles such as ripeness and the statute of limitations. If successful, the court then will address whether a taking occurred, the criteria depending on whether the claim is of...

Partial-Birth Abortion: Recent Developments in the Law

The term “partial-birth abortion” refers generally to an abortion procedure where the fetus is removed intact from a woman’s body. The procedure is described by the medical community as “intact dilation and evacuation” or “dilation and extraction” (“D & X”) depending on the presentation of the fetus. Intact dilation and evacuation involves a vertex or “head first” presentation, the induced dilation of the cervix, the collapsing of the skull, and the extraction of the entire fetus through the cervix. D & X involves a breech or “feet first” presentation, the induced dilation of the cervix,...

Emerging Trends in the Security Architecture in Asia: Bilateral and Multilateral Ties Among the United States, Japan, Australia, and India

Some analysts have questioned whether U.S. security interests in the Asia Pacific region are best served by its existing framework of bilateral alliances. The region is now facing an array of changes: deepening trade links, the formation of new regional institutions, and increased attention to the threat of Islamic terrorism. Against this backdrop, China’s rise represents the key driver in the evolving security landscape in Asia. China is now attracting regional states with its economic power and is offering competing vision to the U.S.-centric “hub and spoke” system of alliances. In...

Constitutionality of the Deficit Reduction Act of 2005: Litigation

The Deficit Reduction Act of 2005 has been challenged as unconstitutional in several lawsuits. The plaintiffs have alleged that the House and Senate did not comply with the constitutional provisions relating to enacting bills because the bill that was sent to the President did not pass the chambers in identical form. All the district courts that have decided these cases have dismissed them on the basis of the enrolled bill rule enunciated by the Supreme Court in 1892. This rule provides that courts should not look behind the text of an enrolled bill signed by the presiding officers of the...

Russia’s December 2007 Legislative Election: Outcome and Implications

This report discusses the campaign and results of Russia’s December 2, 2007, election to the State Duma (the lower legislative chamber), and implications for Russia and U.S. interests. Many observers viewed the election as a setback to democratization. Unprecedented for modern Russia, President Vladimir Putin placed himself at the head of the ticket of the United Russia Party. This party won a majority of Duma seats, and Putin was widely viewed as gaining popular endorsement for a possible role in politics even after his constitutionally-limited second term in office ends in early 2008....

National Continuity Policy: A Brief Overview

On May 9, 2007, President George W. Bush issued National Security Presidential Directive (NSPD) 51, which is also identified as Homeland Security Presidential Directive (HSPD) 20, on National Continuity Policy. The directive updates longstanding continuity directives designed to assure that governing entities are able to recover from a wide range of potential operational interruptions. Executive branch efforts to assure essential operations are similar to those that are broadly integrated into many private sector industries. Government continuity planning also incorporates efforts to...

Turkey’s 2007 Elections: Crisis of Identity and Power

The effort of Turkey’s ruling Justice and Development Party (AKP) to elect one of its own to be president of the Republic provoked a crisis. The nominee, the otherwise respected Foreign Minister Abdullah Gul, has roots in Turkey’s Islamist movement and his wife wears a head scarf, which some secularists consider a symbol of both Islamism and backwardness. Moreover, because AKP already controls the prime ministry and parliament, it was argued that the balance of political power would be disturbed if the party also assumed the presidency.

The opposition engaged in mass demonstrations,...

District of Columbia Budget Autonomy: An Analysis of H.R. 733, 110th Congress

The District of Columbia Budget Autonomy Act of 2007, H.R. 733, 110th Congress, introduced on January 20, 2007, by Congresswoman Eleanor Holmes Norton, is the latest in a series of legislative proposals dating back to 1981 and the 97th Congress that have sought to provide budget autonomy for the District of Columbia. When Congress passed the District of Columbia Government Reorganization and Self-Government Improvement Act (the Home Rule Act, P.L. 93-198, 87 Stat. 774), in 1973, granting the city limited home rule authority, it included provisions retaining its constitutional authority to...

Nepal: Background and U.S. Relations

The three-way contest for control of Nepal—among King Gyanendra, a coalition of seven parties seeking democracy for the country, and the Maoists—ended with the king relinquishing power to the democrats in April 2006 after large scale popular demonstrations against him. King Gyanendra’s inability to subdue the Maoist insurgency and his repression of pro-democratic elements in the country undermined his legitimacy and led to his fall from power. The United States sought to assist the government of Nepal in its struggle against the Maoist armed insurgency and has promoted the democratic...

The Constitution and Racial Diversity in K-12 Education: A Legal Analysis of the Supreme Court Ruling in Parents Involved in Community Schools v. Seattle School District No. 1

The diversity rationale for affirmative action in public education has long been a topic of political and legal controversy. Many colleges and universities have established affirmative action policies not only to remedy past discrimination, but also to achieve a racially and ethnically diverse student body or faculty. Although the Supreme Court has recognized that the use of race-based policies to promote diversity in higher education may be constitutional, the Court had never, until recently, considered whether diversity is a constitutionally permissible goal in the elementary and...

Pakistan: Significant Recent Events, March 26 - June 21, 2007

Many see Pakistani President General Pervez Musharraf as currently facing the most serious challenges to his authority since he wrested control of Pakistan’s government in a 1999 coup. Set off by the March 9, 2007 suspension of the chief justice, Pakistan’s citizenry has grown vocal in its objections to Musharraf. Subsequent restrictions on the media increased the outrage, and journalists have joined thousands of lawyers and social activists in the streets to demonstrate against the president and demand his resignation. Pro-government groups have countered, resulting in factional fighting...

Civil Commitment of Sexually Dangerous Persons

The 109th Congress passed legislation (P.L. 109-248) that allows the federal government to civilly commit “sexually dangerous persons.” Civil commitment, as it relates to sex offenders, is when a state retains custody of an individual, found by a judge or jury to be a “sexually dangerous person,” by involuntarily committing the person to a secure mental health facility after the offender’s prison sentence is done. In 1990, the state of Washington passed the first civil commitment law for sexually dangerous persons. Currently, 18 other states and the federal government have similar laws....

The Supreme Court Decides Five Environmental Cases in Its 2006-2007 Term

The Supreme Court decided five environmental cases during its 2006-2007 term, a significant proportion of the 72 cases it heard. Two decisions involve the Clean Air Act: one ruling that the act allows the Environmental Protection Agency (EPA) to regulate vehicle emissions based on their global warming impacts; the other, that EPA regulations validly impose an annual, as opposed to hourly, emissions change test in determining whether a modification of a stationary source makes it a “new source” requiring a permit. A Superfund Act decision held that liable parties who incur cleanup costs...

Journalists’ Privilege to Withhold Information in Judicial and Other Proceedings: State Shield Statutes

Absent a statutory or constitutional recognition of journalistic privilege, a reporter may be compelled to testify in legal, administrative, or other governmental proceedings. To date, 33 states and the District of Columbia have recognized a journalists’ privilege through enactment of press “shield” statutes, which protect the relationship between reporters, their source, and sometimes, the information that may be communicated in that relationship. Another 16 states have adopted a journalists’ privilege through court decisions; Wyoming is the only state without a legislatively or...

Legal Issues Raised by Provision in House Energy Bill (H.R. 6) Creating Incentives for Certain Outer Continental Shelf (OCS) Leaseholders to Accept Price Thresholds

In February 2007, Congress began looking into why certain oil and gas leases on the Outer Continental Shelf (OCS)—specifically, some 1,024 deep water leases in the Gulf of Mexico issued in 1998 and 1999—did not contain “price thresholds.” A price threshold in an OCS oil and gas lease means that once the market price for oil and natural gas rises above a certain price, the lessee’s freedom from having to pay royalties no longer applies. Such freedom from paying royalties was thought necessary by Congress to promote exploration and production in deep water areas of the Gulf, and was embodied...

Nicaragua: The Election of Daniel Ortega and Issues in U.S. Relations

Sandinista leader and former President Daniel Ortega was inaugurated to a five-year term as President on January 10, 2007. Three elements were key to Ortega’s victory in the November 2006 presidential election: a change in Nicaraguan electoral law, an effective political machine, and a divided opposition. Ortega won only 37.9% of the vote, but was able to avoid a run-off vote because he was ahead of the next closest candidate, Eduardo Montealegre of the Nicaraguan Liberal Alliance (ALN), by more than the 5% required by law. Montealegre, who gained 28.3% of the vote, was regarded by many as...

Economics of Federal Reserve Independence

The Federal Reserve System (Fed) is charged with responsibility for making U.S. monetary policy. Quasi-public in structure, overseen by a Board of Governors whose members are appointed to serve long terms, and reliant on its own source of funding, the Fed possesses a degree of independence that some argue is inimical to the spirit of democracy. Although this argument (and refutations of it) may be political or constitutional in nature, it is also rooted in certain notions about macroeconomic policy.

The power that the Fed wields is substantial. Along with fiscal policy, monetary policy is...

Juvenile Justice: Rights During the Adjudicatory Process

As more attention is being focused on juvenile offenders, some question whether the justice system is dealing with this population appropriately. Since the late 1960s, the juvenile justice system has undergone significant modifications resulting from U.S. Supreme Court decisions, changes in federal and state law, and the growing belief that juveniles were increasingly involved in more serious and violent crimes. Consequently, at both the federal and states levels, the juvenile justice system has shifted from a mostly rehabilitative system to a more punitive one, with serious ramifications...

Presidential Succession: An Overview with Analysis of Legislation Proposed in the 109th Congress

When the office of President of the United States becomes vacant due to “removal ... death or resignation” of the chief executive, the Constitution provides that “the Vice President shall become President.” When the office of Vice President becomes vacant for any reason, the President nominates a successor, who must be confirmed by a majority vote of both houses of Congress. If both offices are vacant simultaneously, the Speaker of the House of Representatives becomes President, after resigning from the House and as Speaker. If the speakership is also vacant, the President Pro Tempore of...

The Electoral College: Reform Proposals in the 109th Congress

American voters elect the President and Vice President of the United States under a complex arrangement of constitutional provisions, federal and state laws, and political party practices known as the electoral college system. For additional information on contemporary operation of the system, please consult CRS Report RL32611, The Electoral College: How It Works in Contemporary Presidential Elections, by Thomas H. Neale.

Despite occasional close elections, this system has delivered uncontested results in 47 of 51 elections since the 12th Amendment was ratified in 1804. Down these many...

Armed Career Criminal Act (ACCA): Using Prior Juvenile Adjudications for Sentence Enhancements

With recent U.S. Supreme Court decisions regarding the role of judges and juries in making factual determinations upon which sentences are made, there has been increased congressional interest in federal sentencing. One aspect of federal sentencing includes recidivism statutes that provide longer sentences for repeat offenders. One such statute, the Armed Career Criminal Act (ACCA), requires imposition of a 15-year prison sentence for an individual with prior serious drug or violent felony convictions. Under the ACCA, non-jury juvenile adjudications qualify as prior convictions. The use of...

Intelligence Spending: Public Disclosure Issues

Although the United States Intelligence Community encompasses large Federal agencies—the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the National Reconnaissance Office, the National Geospatial-Intelligence Agency (NGA), and the National Security Agency (NSA)—among others—neither Congress nor the executive branch has regularly made public the total extent of intelligence spending. Rather, intelligence programs and personnel are largely contained, but not identified, within the capacious budget of the Department of Defense (DOD). This practice has long been...

The Unborn Victims of Violence Act

The Unborn Victims of Violence Act (P.L. 108-212) establishes a separate offense for harming or killing an “unborn child” in utero during the commission of specified violent crimes. This report examines the act’s provisions, and reviews similar state laws that criminalize the killing of a fetus or unborn child. The report also discusses selected cases that have considered the constitutionality of state fetal homicide and unborn child homicide statutes. These cases provide some guidance as to how a reviewing court may consider a future case involving the legitimacy of the act.

National Security Surveillance Act of 2006: S. 3886, Title II (S. 2453 as Reported Out of the Senate Judiciary Committee)

In the wake of disclosures related to the National Security Agency’s Terrorist Surveillance Program, congressional attention has been focused on issues regarding authorization, review, and oversight of electronic surveillance programs designed to acquire foreign intelligence information or to address international terrorism. A number of legislative approaches were considered in the 109th Congress, and three related bills have been introduced in the 110th Congress: H.R. 11, S. 187, and S. 139.

In a January 17, 2007, letter to Chairman Leahy and Senator Specter of the Senate Judiciary...

Electronic Surveillance Modernization Act, as Passed by the House of Representatives

After the New York Times reported that the National Security Agency (NSA) was conducting a secret Terrorist Surveillance Program (TSP), a national debate emerged about whether the program was subject to the Foreign Intelligence Surveillance Act (FISA), whether the Administration needed additional authority to continue the program, and how and whether Congress should oversee the program. The TSP involved surveillance without a warrant or court order under FISA of international communications of persons within the United States, where one party to the communication is believed to be a member...

Terrorist Surveillance Act of 2006: S. 3931 and Title II of S. 3929, the Terrorist Tracking, Identification, and Prosecution Act of 2006

In the wake of disclosures related to the National Security Agency’s Terrorism Surveillance Program (TSP), congressional attention has been focused on issues regarding authorization, review, and oversight of electronic surveillance programs designed to acquire foreign intelligence information or to address international terrorism. A number of legislative approaches were considered in the 109th Congress, and three related bills have been introduced to date in the 110th Congress: H.R. 11, S. 187, and S. 139. In a January 17, 2007, letter to Chairman Leahy and Senator Specter of the Senate...

Venue for Federal Criminal Prosecution: Proposals in the 109th Congress

Venue, the place where federal criminal trials may be held, is a matter of constitutional and statutory law. Several proposals in the 109th Congress would have expanded federal venue. The Supreme Court’s recent decisions in Cabrales and Rodriguez-Moreno suggest that a few of the proposals might have been more limited than their terms might indicate. The proposals dealt with venue in cases involving capital offenses, obstruction of justice, violent crime, drug trafficking offenses, false statements, failure to pay spousal support, wartime procurement fraud, and trial in emergency...

Federal Habeas Corpus Relief: Background, Legislation, and Issues

Federal habeas corpus is the statutory procedure under which state and federal prisoners may petition the federal courts to review their convictions and sentences to determine whether they are being held contrary to the laws or the Constitution of the United States. In 1996, Congress passed legislation that restricted a prisoner’s ability to seek relief through the writ of habeas corpus.

The 109th Congress considered legislation that would have further restricted a state prisoner’s access to federal habeas relief, and would have provided for expeditious habeas review of cases where a...

Kyrgyzstan’s Constitutional Crisis: Context and Implications for U.S. Interests

This report examines civil disorder in Kyrgyzstan surrounding the enactment of a new constitution providing for greater balance between presidential and legislative powers. This report may be updated. Related products include CRS Report RL33458, Central Asia: Regional Developments and Implications for U.S. Interests, by Jim Nichol.

Disaster Housing Assistance: A Legal Analysis of ACORN v. FEMA

This report discusses the ongoing litigation in Association of Community Organizations for Reform Now (ACORN) v. Federal Emergency Management Agency (FEMA), litigation that involves certain evacuees from Hurricane Katrina and Hurricane Rita. In the ACORN case now before the Court of Appeals for the District of Columbia, the U.S. District Court for the District of Columbia addressed the constitutional adequacy of the notice provided to hurricane evacuees who were denied long-term housing assistance benefits by FEMA under § 408 of the Stafford Act. The court held that the notice FEMA...

“Partial-Birth” Abortion and the 2006 Term of the U.S. Supreme Court

The Partial-Birth Abortion Ban Act (“PBABA” or “the act”) was signed into law on November 5, 2003. Within two days of its enactment, the PBABA was enjoined by federal district courts in Nebraska, California, and New York. Since that time, the U.S. Courts of Appeals for the Second, Eighth, and Ninth Circuits have affirmed lower court decisions that have found the act unconstitutional.

This report examines Gonzales v. Carhart and Gonzales v. Planned Parenthood, the partial-birth abortion decisions from the Eighth and Ninth Circuits. In spring 2006, the U.S. Supreme Court agreed to review the...

Legal Comments on H.R. 4772: The Private Property Rights Implementation Act of 2006

H.R. 4772, titled the Private Property Rights Implementation Act of 2006, passed the House in September 2006 and may, if the Senate acts, move forward during the 2006 lame-duck session.

The bill combines process and substance. The process provisions would ease or eliminate four current hurdles to a federal takings or substantive due process claim being adjudicated in federal court on the merits—in those cases where government interference with property rights is alleged. Those hurdles are abstention, the takings ripeness requirements that the plaintiff must first obtain a final decision...

Line Item Veto: A Constitutional Analysis of Recent Proposals

On March 6, 2006, the President announced that he was sending to Congress proposed legislation that “would provide a fast-track procedure to require the Congress to vote up-or-down on rescissions proposed by the President.” The President’s proposal, denominated the “Legislative Line Item Veto Act of 2006,” was introduced the next day in the Senate and House as S. 2381 and H.R. 4890. In comments accompanying the proposal it is asserted that “the President’s proposal is fully consistent with the Constitution. In its 1998 ruling [in Clinton v. City of New York] striking down the Line Item...

Substitution of Nominees on the Ballot for Congressional Office, “Sore Loser” Laws, and Other “Ballot Access” Issues

In July of 2006 federal courts ruled that former Representative Tom DeLay, who had earlier won the Republican primary nomination for Congress from the 22nd District of Texas, could not have his name substituted on the general election ballot by the Republican party even if Mr. DeLay had changed his legal residence and voluntarily withdrew from the race. In Ohio, however, a different result ensued a month later when Representative Robert Ney, who had won the Republican party nomination in an earlier May primary, formally announced his withdrawal from the race on August 14, 2006, but was...

Capital Punishment: Supreme Court Decisions of the 2005-2006 Term

During the 2005-2006 Term, the Supreme Court gave favorable decisions to the defendants in three out of the six death penalty cases it announced. In Hill v. McDonough, the Court ruled unanimously that the method-of-lethal injection claims can be brought under 42 U.S.C. § 1983 rather than under the habeas corpus statute (28 U.S.C. §2254). In House v. Bell, a case involving a death row inmate who claimed that DNA evidence proved he did not commit the crime for which he was found guilty, the Court found in a 5 -3 ruling that the petitioner had satisfied the “gateway” standard for habeas...

The Constitutionality of Including the Phrase "Under God" in the Pledge of Allegiance

On June 26, 2002, a three-judge panel of the Ninth Circuit had held that the 1954 federal statute that added the words "under God" to the Pledge of Allegiance violates the Establishment Clause of the First Amendment. The panel also held that a California school district policy requiring teachers to lead willing school children in reciting the Pledge each school day violates the Establishment Clause. A modification issued on February 28, 2003, eliminated the holding regarding the federal statute but retained the ruling holding that the California statute coerces children into participating...

Legislative Line Item Veto Act of 2006: Background and Comparison of Versions

Under current law, the President may propose to rescind funding provided in an appropriations act by transmitting a special message to Congress. If Congress ignores the presidential rescission request, or if either house rejects the request, the funds must be released after 45 days of continuous session. Instead of allowing Congress to ignore such requests, "expedited rescission" requires at least one house to vote on presidential proposals. Expedited rescission bills have attracted supporters over the years, because the approach is generally regarded as transferring less power...

Farm Product "Check-off" Programs: A Constitutional Analysis

For decades, Congress has enacted laws authorizing generic promotion programs for a number of farm products to increase overall demand and consumption of the agricultural product. These generic promotion programs, commonly known as "check-off" programs, are funded through the payment of mandatory assessments imposed on the amount of product that a covered party sells, produces, or imports. Some producers have opposed the use of generic advertisements and have brought First Amendment challenges in court. Generally, these parties claim that they should not be required to pay for...

The European Union in 2006 and Beyond

The European Union (EU) has experienced significant changes over the last few years. The EU has enlarged from 15 to 25 members and has been working to implement a new constitutional treaty to institute internal reforms and further political integration. The EU has also taken steps toward developing a common foreign policy and defense arm. This report describes the current status of the EU's constitutional treaty, EU enlargement, the EU's evolving foreign and defense policies, and possible implications for U.S.-EU relations. It will be updated as events warrant. For more information, see ...

Military Recruiting and the Solomon Amendment: The Supreme Court Ruling in Rumsfeld v. FAIR

In recent years, many academic institutions have enacted rules that protect homosexuals from discrimination on campus. As a result, colleges, universities, and even high schools have sought to bar military recruiters from their campuses and/or to eliminate Reserve Officer Training Corps (ROTC) programs on campus because of “Don’t Ask, Don’t Tell,” the DOD policy excluding known or admitted homosexuals from military service. At the same time, federal legislation has been enacted to prevent the government from funding higher educational institutions that block military recruiters from...

Material Support of Terrorists and Foreign Terrorist Organizations: Sunset Amendments

Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) temporarily amended two federal terrorist assistance prohibitions. Those amendments were to expire on December 31, 2006, P.L. 108-458, 118 Stat. 3762-764 (2004). P.L. 109-160 extended their expiration date until February 3, 2006, 119 Stat. 2957 (2005); P.L. 109-170 extended it yet again until March 10, 2006, 120 Stat. 3 (2006). Section 104 of the USA PATRIOT Improvement and Reauthorization Actand Terrorism Prevention Reauthorization Act (H.R. 3199), made the amendments permanent, P.L. 109-177, 120 Stat....

Charitable Choice: Legal and Constitutional Issues

This report provides analysis of a number of factual, civil rights, and constitutional questions that have been raised regarding charitable choice in general. The analysis is generally focused on those provisions enacted as part of the 1996 welfare reform law. More recent charitable choice rules may give rise to the same or similar concerns. Primarily, this report focuses on civil rights concerns that have arisen in the context of charitable choice and First Amendment issues, as well as recent legal developments related to charitable choice.

High Performance Computers and Export Control Policy: Issues for Congress

Congress has a strong interest in export control policy with regard to technologies that may have both commercial and military applications outside of the United States. Through its constitutionally delegated authority to regulate foreign commerce, Congress has the authority to control exports for national security or foreign policy purposes. This report examines congressional interest in the exportation of High Performance Computers, which are either single computing machines (usually called supercomputers) or a cluster of easily available, high-end workstations or personal computers.

Education Vouchers: Constitutional Issues and Cases

Condemnation of Private Property for Economic Development: Legal Comments on the House-Passed Bill (H.R. 4128) and Bond Amendment

On June 23, 2005, the Supreme Court handed down Kelo v. City of New London , holding that under the Fifth Amendment Takings Clause, the sovereign power of eminent domain ("condemnation") can be used to transfer private property to new private owners for the purpose of economic development. Kelo sparked a public outcry and a flurry of legislative proposals in Congress and the states to restrict the use of eminent domain. The principal Kelo bill in Congress is H.R. 4128 , the "Sensenbrenner bill," which passed the House on November 3, 2005. Its key provision prohibits states and their...

The Environmental Opinions of Judge Samuel Alito

The nomination of Judge Samuel A. Alito, Jr., to serve on the Supreme Court has prompted close scrutiny of his judicial opinions during 15 years as an appellate judge. A review of the 34 opinions in environmental cases in which Judge Alito participated generally reveals careful reasoning based on straightforward readings of statutes or regulations, without broad philosophical assertions. At the same time, a small number of his opinions arguably suggest endorsement of larger jurisprudential principles that may present hurdles to environmental plaintiffs (through narrow interpretation of...

Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information

The Revelations in December 2005 that President Bush had authorized the National Security Agency (NSA) to collect signals intelligence from communications involving U.S. persons within the United States, without obtaining a warrant or court order, raised numerous questions regarding the President’s authority to order warrantless electronic surveillance. President Bush stated that he believes his order to be fully supported by the Constitution and the laws of the United States, and Attorney General Gonzales clarified that the Administration based its authority both on inherent presidential...

National Security Whistleblowers

To discharge its constitutional duties, Congress depends on information obtained from the executive branch. Domestic and national security information is provided through agency reports and direct communications from department heads, but lawmakers also receive information directly from employees within the agencies. They take the initiative in notifying Congress, its committees, and Members of Congress about alleged agency illegalities, corruption, and waste within the agency. This type of information comes from a group known as whistleblowers.

Through such techniques as “gag orders”...

Parental Notification and Ayotte v. Planned Parenthood of Northern New England

This report discusses Ayotte v. Planned Parenthood of Northern New England , which will be decided by the U.S. Supreme Court this term. The case involves the constitutionality of the New Hampshire Parental Notification Prior to Abortion Act. In November 2004, the U.S. Court of Appeals for the First Circuit invalidated the act because it does not include an explicit exception that would waive the measure’s requirements to preserve the health of the pregnant minor. Ayotte, the Attorney General of New Hampshire, contends that a judicial bypass procedure included in the act and other state...

The Supreme Court's Overruling of Constitutional Precedent: An Overview

As a general rule, the Supreme Court adheres to precedent, citing the doctrine of stare decisis (“to stand by a decision”). The general rule of stare decisis is not an absolute rule, however, and the Court recognizes the need on occasion to correct what are perceived as erroneous decisions or to adapt decisions to changed circumstances. In deciding whether to overrule precedent the Court takes a variety of approaches and applies a number of different standards, many of them quite general and flexible in application. As a result, the law of stare decisis in constitutional decision...

Federal Hurricane Recovery Coordinator: Appointment and Oversight Issues

On November 1, 2005, President George W. Bush issued an executive order directing the Secretary of Homeland Security to establish a new position that would coordinate federal Gulf Coast recovery and rebuilding efforts. (1) The executive order specifies that this official "shall be selected by the President and shall be appointed by and report directly to the Secretary." Subsequently, the President selected then-Federal Deposit Insurance Corporation Board of Directors Chair Donald Powell for the new position, and Secretary Michael Chertoff formally appointed him. This method of...

Committee Controls of Agency Decisions

Congress has a long history of subjecting certain types of executive agency decisions to committee control, either by committees or subcommittees. Especially with the beginning of World War II, the executive branch agreed to committee controls as an accommodation that allowed Congress to delegate authority and funds broadly while using committees to monitor the use of that discretionary authority. These committee-agency arrangements took the form of different procedures: simply notifying the committee, obtaining committee approval, "coming into agreement" understandings, and using the...

Changing Senate Rules or Procedures: The "Constitutional" or "Nuclear" Option

Reports indicate possible attempts to curtail the use of filibusters in the Senate, perhaps in the 109th Congress. Some have suggested that proponents of this idea may invoke something called the “nuclear” or “constitutional” option in Senate floor procedure to try to end a filibuster without the need for 60 votes or to amend the cloture rule (Rule XXII) itself. No set definition exists for the term “nuclear” or “constitutional” in this context. Because the point of using such an option is to achieve a goal by means lying outside the Senate’s normal rules of procedure, it would...

The Chief Justice of the United States: Responsibilities of the Office and Process for Appointment

The lifetime appointment of the Chief Justice of the United States is an event of major significance in American politics because of the enormous power that the Supreme Court exercises as the highest appellate court in the federal judiciary. The Chief Justice, like each of the Court’s other eight Justices, casts one vote when the Court rules on cases. However, the Chief Justice is also “first among equals” and exercises a unique leadership role as the presiding officer of the Court, as the manager of the Court’s overall operations, and as head of the federal judicial branch of government....

Congress and the Courts: Current Policy Issues

The purposes of this report are to examine the Congress-court connection along several discrete, but overlapping, dimensions. First, the constitutional authority of Congress and the judiciary is summarized briefly. Second, the report highlights the court’s role as legislative-executive “umpire” and federal-state “referee” in our constitutional system. Third, the report discusses the court’s part in statutory interpretation as well as the diverse ways Congress may “check and balance” the judiciary. Fourth, the paper reviews several current controversies associated with the judicial...

Pakistan's Domestic Political Developments

Pakistan is a strategically important country and home to one of the world's largest Muslim populations. In October 1999, Pakistan's Chief of Army Staff Gen. Pervez Musharraf replaced Prime Minister Nawaz Sharif in a bloodless coup. Following the military overthrow of an elected government, Islamabad faced considerable international opprobrium and was subjected to automatic coup-related U.S. sanctions. The September 2001 terrorist attacks on the United States and Musharraf's ensuing withdrawal of support for the Afghan Taliban regime, however, had the effect of greatly reducing Pakistan's...

The "Right to Die": Constitutional and Statutory Analysis

In the spring of 2005, national attention was drawn to a series of court and legislative actions regarding the withdrawal of nutrition and hydration from a Florida patient, Theresa Schiavo, who had suffered severe brain damage. For a summary of relevant factual and legal events surrounding this case, see http://www.miami.edu/ethics2/schiavo/timeline.htm and CRS Report RL32830(pdf) , The Schiavo Case: Legal Issues . This case brought new scrutiny to the “right to die” issue. Although the popular term “right to die” has been used as a label to describe the current political debate...

USA PATRIOT Act: Background and Comparison of House- and Senate-Approved Reauthorization and Related Legislative Action

The House and Senate have each passed USA PATRIOT Reauthorization Acts, H.R. 3199 and S. 1389 . Both make permanent most of the expiring USA PATRIOT Act sections, occasionally in modified form. After amending two of the more controversial expiring sections, 206 (roving Foreign Intelligence Surveillance Act (FISA) wiretaps) and 215 (FISA tangible item access orders (business records-library records)), they postpone their expiration date, S. 1389 until December 31, 2009; H.R. 3199 until December 31, 2015. Both address questions raised as to the constitutionality of various “national...

Selected Opinions of Chief Justice Rehnquist

William H. Justice Rehnquist, appointed to the Supreme Court by President Richard M. Nixon, joined the United States Supreme Court as an associate Justice in 1972. In 1986, President Ronald Reagan nominated him to replace Chief Justice Warren Burger, a position to which he was confirmed by the Senate by a vote of 65 to 33. When Chief Justice Rehnquist died on September 3, 2005, he had served 33 years on the Court.

William H. Rehnquist had a significant influence over a number of issues during his years on the Supreme Court. While he is most often associated with the Court’s renewed...

Capital Punishment: Selected Opinions of Justice O'Connor

An examination of Justice O’Connor’s opinions on capital punishment reveals a case-by-case approach showing a general support for the death penalty’s constitutionality. However, the opinions also reveal a careful review of the administration of the death penalty by the States. Justice O’Connor’s evolving skepticism about capital punishment has played a significant role in many key decisions regarding the death penalty throughout her twenty-four years on the United States Supreme Court. This report briefly surveys selected decisions of retiring Justice Sandra Day O’Connor in death penalty...

Continuity of Government: Current Federal Arrangements and the Future

Continuity of government refers to the continued functioning of constitutional government under all circumstances. Arrangements for the continued operation of the federal government in the event of a national emergency or catastrophe are specified in law, policy, and plans, some of which are not public information, given their sensitive, contingent status. This report reviews the public record concerning federal continuity of government arrangements. It will be updated to reflect significant developments.

Africa, the G8, and the Blair Initiative

Prior to the July 2005 G8 summit, Britain’s Prime Minister Tony Blair launched a major diplomatic effort to marshal the resources he sees as needed to eradicate extreme poverty in sub-Saharan Africa. As summit chair, he focused the meeting, held at Gleneagles Hotel in Scotland, July 6-8, on this initiative. Blair pushed for a substantial aid increase for Africa beginning in 2006, through an “International Finance Facility” (IFF), and for 100% forgiveness of poor country debt to the international financial institutions. The IFF would have issued bonds to finance an additional $25 billion...

The Federal Consent Decree Fairness Act (S. 489/H.R. 1229) - A Legal Analysis

A “consent decree” refers to an agreement or contract between the parties to a lawsuit which usually settles all outstanding legal issues and is adopted by the court hearing the case as a formal judgment, including appropriate remedies and relief. Such decrees differ from litigated judgments only in that they grow out of negotiation between the parties, rather than being forced on the parties by the court without their consent. In addition, they may be entered by the court at any time, frequently before trial or formal presentation of evidence, and permit resolution of the controversy...

Affirmative Action: Justice O'Connor's Opinions

An examination of Justice O’Connor’s opinions reveals a gradual shift in perspective regarding the legal and constitutional standards to be applied in evaluating governmental affirmative action efforts, and the manner of their application in various legal and factual settings. This report briefly surveys decisions of retiring Justice Sandra Day O’Connor in affirmative action cases, an area where her opinions have frequently determined the outcome.

Selected Opinions of Justice O'Connor

The retirement of Justice O’Connor from the Supreme Court and her replacement by a nominee of President Bush provoke numerous questions about the impact of the change in Court membership in a wide variety of issues, both constitutional and statutory. The purpose of this report is to identify significant opinions of Justice O’Connor, opinions of the Court, concurrences, and dissents, which could assist interested parties to assess possible changes in Court jurisprudence that may be anticipated over the next several years. This report does not attempt to be comprehensive but...

Abortion: Justice O'Connor's Opinions

In 1992, the U.S. Supreme Court, led by Justices O’Connor, Kennedy, and Souter, adopted a new standard for reviewing the constitutionality of restrictions on abortion. Under the new standard, a reviewing court would consider whether an abortion restriction has the effect of imposing an “undue burden” on a woman’s right to obtain an abortion. This report will examine Justice O’Connor’s notable opinions on abortion, and explore her role in the development of the undue burden standard.

Judicial Recess Appointments: A Legal Overview

Article II of the Constitution provides that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and counsels, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for and which shall be established by law.” As a supplement to this authority, the Constitution further provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the...

The Electoral College: Reform Proposals in the 108th Congress

American voters elect the President and Vice President of the United States under a complex arrangement of constitutional provisions, federal and state laws, and political party practices known as the electoral college system. For additional information on contemporary operation of the system, please see CRS Report RL32611 , The Electoral College: How It Works in Contemporary Presidential Elections , by Thomas H. Neale.

Despite occasional close elections, this system has delivered uncontested results in 46 of 50 elections since adoption of the 12th Amendment, effective in 1804....

Presidential Succession: An Overview with Analysis of Legislation Proposed in the 108th Congress

Whenever the office of President of the United States becomes vacant due to “removal ... death or resignation” of the chief executive, the Constitution provides that “the Vice President shall become President.” When the office of Vice President becomes vacant for any reason, the President nominates a successor, who must be confirmed by a majority vote of both houses of Congress. If both of these offices are vacant simultaneously, then, under the Succession Act of 1947, the Speaker of the House of Representatives becomes President, after resigning from the House and as Speaker. If the...

Federally Mandated Random Drug Testing in Professional Athletics: Constitutional Issues

Problems of usage of steroids and other performance enhancing drugs in professional and amateur athletics have been the focus of a series of investigative hearings before the House Government Reform Committee. The Committee began taking evidence on March 17, 2005, when several former and current players, medical experts, and major league baseball executives were summoned to testify in the first hearing. Committee Chairman Tom Davis has urged all sports leagues to “acknowledge that their testing programs need improvement” and has framed bi-partisan legislation to establish a uniform testing...

Macedonia (FYROM): Post-Conflict Situation and U.S. Policy

In early 2001, an eight-month conflict between ethnic Albanian insurgent forces and Macedonian police and security forces threatened to derail the country's fragile stability and lead to another extended conflict in the Balkans. Later that year, U.S. and European intervention led to the signing of the Ohrid Framework Agreement, which outlined a package of political reforms to expand the rights of the ethnic Albanian minority while rebel forces were disarmed and disbanded under NATO supervision. Implementation of the Ohrid agreement proceeded slowly at first but has progressed in recent...

Gonzales v. Raich: Congress’s Power Under the Commerce Clause to Regulate Medical Marijuana

In Gonzales v. Raich, the Supreme Court was presented with a conflict between California’s state law, permitting the medicinal use of marijuana, and the federal Controlled Substances Act (CSA). The Ninth Circuit had found the federal law unconstitutional “as applied,” concluding that its enforcement against medicinal users was beyond Congress’s enumerated power to regulate interstate commerce. The Supreme Court reversed, concluding that Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would substantially affect conditions in the...

Marijuana for Medical Purposes: The Supreme Court's Decision in United States v. Oakland Cannabis Buyers' Cooperative and Related Legal Issues

In United States v. Oakland Cannabis Buyers’ Cooperative , 532 U.S. 483 (2001), the United States Supreme Court held, without dissent, that there is no medical necessity defense to the federal law prohibiting cultivation and distribution of marijuana -- even in states which have created a medical marijuana exception to a comparable ban under state law.

Congress classified marijuana as a Schedule I controlled substance, a classification it reserved for those substances which have no currently accepted medical use in the United States. Therefore, the Court concluded, Congress could...

Constitutionality of a Senate Filibuster of a Judicial Nomination

The Senate cloture rule requires a super-majority vote to terminate a filibuster (i.e., extended debate). The Appointments Clause of the Constitution, which provides that the President is to “nominate, and by and with the Advice and Consent of the Senate, ... appoint” judges, does not impose a super-majority requirement for Senate confirmation. Critics of the Senate filibuster argue that a filibuster of a judicial nomination is unconstitutional in that it effectively requires a super-majority vote for confirmation, although the Appointments Clause does not require such a super-majority...

Congressional Oversight of Judges and Justices

This report addresses Congress’s oversight authority over individual federal judges or Supreme Court Justices. Congressional oversight authority, although broad, is limited to subjects related to the exercise of legitimate congressional power. While Congress has the power to regulate the structure, administration and jurisdiction of the courts, its power over the judicial acts of individual judges or Justices is more restricted. For instance, Congress has limited authority to remove or discipline a judge for decisions made on the bench. Article III, Section 1 of the Constitution provides...

Terrorism: Some Legal Restrictions on Military Assistance to Domestic Authorities Following a Terrorist Attack

The Constitution empowers the President to act as Commander in Chief of the armed forces and to see to the execution of federal law; it gives Congress the authority to make federal law including laws for the regulation of the armed forces. The Posse Comitatus Act prohibits use of the armed forces to perform civilian governmental tasks unless explicitly authorized to do so. There are statutory exceptions to ensure continued enforcement of state and federal law, to provide disaster assistance, and to provide technical support for law enforcement. Further exceptions are proposed ( H.R. 1986 ,...

Item Veto: Budgetary Savings

Homosexuality and the Constitution: A Legal Analysis of the Supreme Court Ruling in Lawrence v. Texas

In a sweeping decision issued on June 26, 2003, the Supreme Court struck down a Texas state statute that made it a crime for homosexuals to engage in certain private sex acts. Specifically, the Court’s ruling in Lawrence v. Texas held that the due process privacy guarantee of the Fourteenth Amendment extends to protect consensual gay sex. Although the Court also considered whether the Texas state statute violated the constitutional right to equal protection, the Court ultimately based its ruling on broader privacy grounds. In addition, the Court also overturned its 1986 decision in ...

Public Relations and Propaganda: Restrictions on Executive Agency Activities

Controversies recently have arisen over certain executive branch agencies' expenditures of appropriated funds on public relations activities, some of which have been characterized as propagandistic. Generally speaking, there are two legal restrictions on agency public relations activities and propaganda. 5 U.S.C. 3107 prohibits the use of appropriated funds to hire publicity experts. Appropriations law "publicity and propaganda" clauses restrict the use of funds for puffery of an agency, purely partisan communications, and covert propaganda. No federal agency monitors federal public...

Congressional Authority Over the Federal Courts

This report examines Congress’ legislative authority with respect to the Judicial Branch. While Congress has broad power to regulate the structure, administration and jurisdiction of the courts, its powers are limited by precepts of due process, equal protection and separation of powers. Usually congressional oversight of the judicial branch is noncontroversial, but when Congress proposes to use its oversight and regulatory powers in a manner designed to affect the outcome of pending or previously decided cases, constitutional issues can be raised. In recent years, Congress has considered...

Legislative Vetoes After Chadha

In INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court struck down Congress's use of the "legislative veto," a device used for half a century to control certain activities in the executive branch. Congress had delegated power to executive officials on the condition that Congress could control their decisions without having to pass another law. These legislative controls, short of a public law, included one-house vetoes, two-house vetoes, and committee vetoes. Congress no longer relies on one-house or two-house vetoes, but committee and subcommittee vetoes continue to be a part of...

Detention of U.S. Citizens

In 1971, Congress passed legislation to repeal the Emergency Detention Act of 1950 and to enact the following language: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” The new language, codified at 18 U.S.C. §4001(a), is called the Non-Detention Act. This statutory provision received attention after the 9/11 terrorist attacks when the Administration designated certain U.S. citizens as “enemy combatants” and claimed the right to detain them indefinitely without charging them, bringing them to trial, or giving them access to...

Standing Order and Rulemaking Statute: Possible Alternatives to the "Nuclear Option"?

Concern over the Senate’s inability to reach a vote on certain pending nominations has led some Senators to express an interest in amending or bypassing the supermajority requirement to limit consideration now required by Senate rules. Such an approach to ending filibusters, dubbed the ‘nuclear’ or ‘constitutional’ parliamentary option, might be accomplished in several ways, some of which, opponents argue, could violate Senate rules or precedents.

It might also be possible to institute new consideration limits on nominations by establishing a new standing order or by statutory...

Administrative Subpoenas and National Security Letters in Criminal and Intelligence Investigations: A Sketch

Administrative subpoena authority, including closely related national security letter authority, is the power vested in various administrative agencies to compel testimony or the production of documents or both in aid of the agencies’ performance of their duties. Both the President and Members of Congress have called for statutory adjustments relating to the use of administrative subpoenas and national security letters in criminal and foreign intelligence investigations. One lower federal court has found the sweeping gag orders and lack of judicial review that mark one of the national...

Administrative Subpoenas and National Security Letters in Criminal and Foreign Intelligence Investigations: Background and Proposed Adjustments

Administrative subpoena authority, including closely related national security letter authority, is the power vested in various administrative agencies to compel testimony or the production of documents or both in aid of the agencies’ performance of their duties. During the 108th Congress, the President urged Congress to expand and re-enforce statutory authority to use administrative subpoenas and national security letters in criminal and foreign intelligence investigations; and legislation was introduced for that purpose. Related proposals have been offered during the 109th Congress, some...

Sentencing Under the Federal Sentencing Guidelines: An Abridged Terrorism Related Example

Until recently, the federal Sentencing Guidelines determined the sentences meted out as punishment for most federal crimes. Then the Supreme Court declared that as a matter of constitutional necessity the Guidelines must be viewed as advisory rather than mandatory. The Guidelines remain a major consideration nevertheless. The Guidelines system is essentially a scorecard system. The purpose of this report is to give a bare bones description of the score-keeping process with a simple example of how it works in a terrorism related case. This report is an abridged version -- without...

Presidential Review of Agency Rulemaking

Presidential review of agency rulemaking is widely regarded as one of the most significant developments in administrative law since the introduction of the first formal review programs in the 1970s. The evolution of presidential review of agency rulemaking efforts from the Reagan era through the current Administration marks a significant assertion and accumulation of presidential power in the regulatory context. While initial presidential forays into centralized regulatory review were limited in scope, presidential review of rules has emerged as one of the most effective and controversial...

Sentencing Under the Federal Sentencing Guidelines: An Abridged Controlled Substance Example

Until recently, the federal Sentencing Guidelines determined the sentences meted out as punishment for most federal crimes. Then the Supreme Court declared that as a matter of constitutional necessity the Guidelines must be viewed as advisory rather than mandatory. The Guidelines remain a major consideration nevertheless. The Guidelines system is essentially a scorecard system. The purpose of this report is to give a bare bones description of the score-keeping process with a simple example of how it works in a drug trafficking case. This report is an abridged version -- without footnotes,...

How the Federal Sentencing Guidelines Work: Two Examples

Until recently, the federal Sentencing Guidelines determine the sentences imposed as punishment for most federal crimes. They are now only advisory, but remain a major sentencing consideration. The guidelines system is essentially a scorecard system. This is a discussion of how the system works using two relatively simple examples -- one involving a terrorism-related crime and the other involving drug trafficking -- and following this roadmap:

I. Identify the applicable guideline which sets the base offense level for the crime(s) of conviction (i.e., the level assigned based on the...

Detention of American Citizens as Enemy Combatants

The Supreme Court in 2004 issued three decisions related to the detention of “enemy combatants,” including two that deal with U.S. citizens in military custody on American soil. In Hamdi v. Rumsfeld , a plurality held that a U.S. citizen allegedly captured during combat in Afghanistan and incarcerated at a Navy brig in South Carolina is entitled to notice and an opportunity to be heard by a neutral decision-maker regarding the government’s reasons for detaining him. The Court in Rumsfeld v. Padilla overturned a lower court’s grant of habeas corpus to another U.S. citizen in military...

Campaign Finance: Constitutional and Legal Issues of Soft Money

“Entrenchment” of Senate Procedure and the “Nuclear Option” for Change: Possible Proceedings and Their Implications

Senate procedure permits most matters to be decided by a simple majority of Senators voting (with a quorum present). Yet Senate procedure generally lacks means for a simple majority to limit consideration and proceed to a vote. As a result, Senate minorities can attempt to block proposals by preventing a vote from occurring, a practice known as filibustering. Filibuster opponents have long sought to institute rules permitting a voting majority to limit consideration, most recently, in relation to judicial nominations. The Senate has seldom been able to adopt such limits, however, because...

The Schiavo Case: Legal Issues

Recently, there have been a series of court and legislative actions regarding the proposed withdrawal of nutrition and hydration from a Florida patient, Theresa Schiavo, who has suffered severe brain damage. This report provides a synopsis of the factual and legal issues related to the case. The report then analyzes P.L. 109-3 , “For the relief of the parents of Theresa Marie Schiavo.” This law provides that either parent of Theresa Marie Schiavo shall have standing to bring a suit in federal court. Under this law, the federal courts shall determine de novo any claim of a violation of...

9/11 Commission Recommendations: The Senate Confirmation Process for Presidential Nominees

On July 22, 2004, the National Commission on Terrorist Attacks Upon the United States, known as the 9/11 Commission, issued its final report, detailing the events up to and including the September 11, 2001 terrorist attacks upon the United States. The report contained 41 recommendations on ways to prevent future catastrophic assaults, including a series of proposals designed to improve the presidential appointments process as it relates to the top national security officials at the beginning of a new administration. On October 6, the Senate passed legislation ( S. 2845 ) to implement many...

United States Sentencing Guidelines After Blakely: Booker and Fanfan - A Sketch

Sentencing in federal court has been governed by the United States Sentencing Guidelines. The Supreme Court has upheld the Guidelines in the face of arguments that they constituted an unconstitutional delegation of authority and an affront to the separation of powers. Yet thereafter, the Court held that due process and the right to a criminal jury trial require that any fact (other than the fact of a prior conviction) that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. And for this reason, the Court, in ...

United States Sentencing Guidelines and the Supreme Court: Booker, Fanfan, Blakely, Apprendi, and Mistretta

For fifteen years, sentencing in federal court had been governed by the United States Sentencing Guidelines. During that time, the Supreme Court has upheld the Guidelines in the face of various challenges. In the meantime, however, it had decided a series of cases which called into question past assumptions relating to the role of the jury in the sentencing process. In Apprendi , the Court held that any fact that increases the penalty for a crime beyond the statutory maximum assigned for that offense must be submitted to the jury and found beyond a reasonable doubt. The federal Sentencing...

The Appropriate Number of Advice and Consent Positions: An Analysis of the Issue and Proposals for Change

This report provides background information and analysis of issues concerning possible congressional action to reduce the number of positions to which the President makes appointments with the advice and consent of the Senate (PAS positions). Among other topics, the report discusses the constitutional framework that guides congressional action in this area, identifies potential congressional options, and analyzes associated institutional and political considerations.

The Constitution provides Congress with considerable discretion over which officers of the United States will be in PAS...

Implications for the Senate of President Bush's Proposal on Judicial Nominations

President Bush has said that the current process for confirming federal appellate and district court judges is too partisan and has broken down, echoing a critique raised by most contemporary Presidents. In late 2002, Bush proposed a series of changes to the system that, he argues, would accelerate the process by setting timetables for action and guaranteeing a Senate vote on each nominee. The proposal raises questions about the traditional powers of the Senate and its constitutional role in offering “advice and consent” on the dozens of nominations submitted each year for the third branch...

Proposals to Amend the Senate Cloture Rule

Paragraph 2 of Senate Rule XXII, also known as the “cloture rule,” was adopted in 1917. It established a procedure, amended several times over the intervening years, by which the Senate may limit debate and act on a pending measure or matter. Aside from unanimous consent agreements, cloture is the only way the Senate can limit debate.

Recently, concern by some Senators over an inability to halt consideration and obtain a confirmation vote on several pending judicial nominations has led to a renewed interest in amending the Senate cloture rule. One option, called the “nuclear option” by...

House Rules Changes Affecting Floor Procedures in the 109th Congress

On the first day of the 109th Congress, the House agreed to H.Res. 5 , which made several rules changes affecting floor proceedings. These modifications include allowing committees to adopt rules giving chairs the general authority to make the motion necessary to send a measure to conference; adding Wednesdays to the permissible days on which suspension motions may be entertained; eliminating the Corrections Calendar; amending the rules of decorum and debate regarding references to the Senate and its members; and granting the Speaker added authority to postpone votes on certain questions....

Federal Recess Judges

This report discusses the recess clause and takes a look at the history of recess appointments. Under Article II of the Constitution, the President is empowered "to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." Presidents have used the recess appointment power on more than 300 occasions to place judges on the district, appellate, and U.S. Supreme Court level. This practice slowed after the 1950s, but recent recess appointments to federal appellate courts (the Fourth, Fifth, and Eleventh...

Continuity of Operations (COOP) in the Executive Branch: Issues in the 109th Congress

Spurred in part by occasional warnings of potential terrorist threats in the post- 9/11 era, some policymakers have intensified their focus on continuity of operations (COOP) issues. COOP planning is a segment of federal government contingency planning linked to continuity of government (COG). Together, COOP and COG are designed to ensure survival of a constitutional form of government and the continuity of essential federal functions. This report focuses primarily on executive branch COOP activities.

Limiting Court Jurisdiction Over Federal Constitutional Issues: "Court-Stripping"

Over the years, various proposals have been made to limit the jurisdiction of federal courts to hear cases regarding particular areas of constitutional law such as busing, abortion, prayer in school, and most recently, reciting the Pledge of Allegiance. Several such proposals passed the House in the 108th Congress, including an amendment to H.R. 2799 to limit the use of funds to enforce a federal court decision regarding the Pledge of Allegiance; H.R. 2028 , to limit the jurisdiction of federal courts to hear cases regarding the Pledge of Allegiance; and H.R. 3313 , to limit federal...

Terrorist Attacks and National Emergencies Act Declarations

As part of his response to the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, President George W. Bush formally declared national emergencies on September 14 and 23 pursuant to the National Emergencies Act. The President's actions follow a long-standing tradition of alerting the nation to a crisis threatening public order and constitutional government. Currently, such declarations also allow the President to make use of activated authority on a selective basis, as appropriate for responding to an emergency. Updated as events recommend, this report...

Railroad Reorganization Under the U.S. Bankruptcy Code: Implications of a Filing by Amtrak

In 1997, Congress enacted the Amtrak Reform and Accountability Act, the goal of which was to promote Amtrak’s self-sufficiency with respect to operating funds within five years. The law has provisions directing Amtrak to make plans for its liquidation in the event that it does not reach the goals set forth. It directs the Amtrak Reform Council to present Congress a plan for restructuring intercity rail passenger service. It also directed the General Accounting Office to report on the implications of Amtrak’s possible liquidation.

Many years have passed, and Amtrak has realized neither...

Presidential Rescission Authority: Efforts to Modify the 1974 Framework

The Impoundment Control Act (ICA) constituted Title X of the Congressional Budget and Impoundment Control Act of 1974 (P.L. 93-344, 99 Stat. 297). The ICA designated two categories of impoundments: deferrals, or temporary delays in funding availability, and rescissions, or permanent cancellations of budget authority. The act stipulated different procedures for congressional review and control of the two types of impoundment actions. In the case of a rescission, the ICA provided that the funds must be made available for obligation unless both houses of Congress took action to approve the...

Interstate Travel: Constitutional Challenges to the Identification Requirement and Other Transportation Security Regulations

Since the terrorist attacks of September 11, 2001, security measures in and around our nation's transportation facilities have dramatically increased. Nowhere has the increase been more noticeable than with respect to air transportation. New federal statutes and agency regulations have been implemented, each with the purpose of ensuring the safety and security of passengers, facilities, and workers of our national transportation systems. Not all of these security measures, however, have been publically disclosed. In fact, pursuant to its statutory authority, the Transportation...

Federal Mandatory Minimum Sentencing Statutes: Legislative Proposals in the 108th Congress

Federal mandatory minimum sentencing statutes (mandatory minimums) demand that execution or incarceration follow criminal conviction. They cover drug dealing, murdering federal officials, and using a gun to commit a federal crime. They circumscribe judicial sentencing discretion. They have been criticized as unthinkingly harsh and incompatible with a rational sentencing guideline system; yet they have also been embraced as hallmarks of truth in sentence and a certain means of incapacitating the criminally dangerous. Mandatory minimum sentences are not unconstitutional per se, although on...

Semiautomatic Assault Weapons Ban

The 10-year ban on the manufacture, transfer or possession of “semiautomatic assault weapons” (SAWs) and “large capacity ammunition feeding devices” (LCAFDs) expired on September 13, 2004. In statute, “SAWs” were defined in two ways. First, certain firearms were defined as SAWs by make and model. Second, other firearms were defined as SAWs, if they included specified features. For example, a rifle was defined as a SAW if it was able to accept a detachable magazine and included at least two of the following features: (1) a folding/telescoping stock; (2) a protruding pistol grip; (3) a...

Election of the President and Vice President by Congress: Contingent Election

The 12th Amendment to the Constitution requires that candidates for President and Vice President receive a majority of electoral votes (currently 270 or more of a total of 538) to be elected. If no candidate receives a majority, the President is elected by the House of Representatives (which occurred once, in 1825), and the Vice President is elected by the Senate (which also occurred once, in 1837). This process is known as contingent election.

The 12th Amendment prescribes some contingent election procedures for the President: the President is elected from among the three candidates who...

A Presidential Item Veto

During a news conference on November 4, 2004, President George W. Bush stated that he “would like to see the President have a line-item veto again, one that passed constitutional muster. I think it would help the executive branch work with the legislative branch to make sure that we’re able to maintain budget discipline.” The

Supreme Court struck down an earlier version of item-veto authority (the Line Item Veto Act of 1996) in Clinton v. City of New York, 524 U.S. 417 (1998), but several statutory alternatives are available. Options to the Line Item Veto Act have been proposed over the...

The Electoral College: An Overview and Analysis of Reform Proposals

American voters elect the President and Vice President of the United States indirectly, through an arrangement known as the electoral college system. The electoral college system comprises a complex mosaic of constitutional provisions, state and federal laws, and political party rules and practices.

Although the electoral college system has delivered uncontested results in 46 out of 50 presidential elections since it assumed its present constitutional form in 1804, it has been the subject of persistent criticism and frequent proposals for reform. Reform advocates cite several problems with...

Safeguarding Federal Elections from Possible Terrorist Attack: Issues and Options for Congress

Concerns have arisen that terrorist attacks near the November 2, 2004 federal election might be launched to disrupt voting and affect the outcome. As a result, questions have arisen about what might be done both to prevent such attacks and to respond to any that occur. Deliberations have centered largely around two questions: If a terrorist attack occurs, should the election be postponed, in whole or in part, and if so, by whom and under what authority? What steps should and are being taken to enhance security for the election? Questions about election postponement include who has the...

Military Personnel Financial Services Protection Act: H.R. 5011, 108th Congress

This report discusses the military personnel financial services protection act: H.R. 5011, 108th The bill utilizes both Congress’ constitutional Commerce Power authority to enact insurance legislation, and the states’ traditional regulation of the insurance industry1 to create a scheme for regulating the sale of certain life insurance products to military personnel that supporters argue is fairer and more transparent than is currently the case.

Federal Responses to International Conflict and Terrorism: Property Rights Issues

Among federal actions dealing with international conflict, wars, and terrorism, direct impingements on private property are common. Besides the obvious ravages of battle, there have historically been military occupations and requisitions of property not in the actual theater of war. And, non-military measures may be used against assets, attachments on foreign assets, causes of action, and so on. Unsurprisingly, holders of affected property interests have claimed that their property was "taken" and demanded compensation, invoking the Takings Clause of the Fifth Amendment. This report...

Standards For Retroactive Application Based Upon Groundbreaking Supreme Court Decisions in Criminal Law

The Supreme Court is said to have announced a "new rule" when it hands down a decision that addresses an issue of law in a new way or for the first time. In criminal law new rules apply prospectively, but they also apply retroactively sometimes. Whether a new rule provides the basis for overturning a past case depends on the nature of the new rule and where in the review process a past case is located when the new rule is announced. If the new rule is a substantive one, that is, if it declares that conduct previously outlawed may not be criminalized, it applies retroactively. If the new...

The Black Lung Excise Tax on Coal

The Black Lung Excise Tax (BLET) on coal has been in effect since 1978 and finances the Black Lung Disability Trust Fund. An estimated $14,000 million in coal excise tax revenues have gone into the fund through FY2004. The fund compensates miners (as well as their survivors and dependents) afflicted with pneumoconiosis, or "black lung disease," pays their medical costs, and finances the costs of administering the program. In 1998 a U.S. district court ruled that the black lung excise tax on coal exports violated the export clause of the U.S. Constitution. Of the estimated $1,300 million of...

The Supreme Court Revisits the Environment: Seven Cases Decided or Accepted in the 2003-2004 Term

In the Supreme Court's 2003-2004 term, concluded June, 2004, the Court accepted for review seven environmental cases -- an unusually large number. Five decisions were handed down during the term, and two cases were carried over to the upcoming 2004-2005 term. Of the five decided cases, three involve the Clean Air Act (CAA). Alaska Dep't of Environmental Conservation v. EPA asked whether EPA may issue CAA enforcement orders that effectively overrule a permit issued by a state under its EPA-approved air program. The Court said yes, though only by a 5-4 margin. In Engine Manufacturers...

Repealing Miranda?: Background of the Controversy over Pretrial Interrogation and Self-Incrimination

Although an involuntary confession has been inadmissible in federal cases since the nineteenth century, the Supreme Court did not denounce physically coercive abuses in State cases until its decision in Brown v. Mississippi . The Brown case established the basis for the Fourteenth Amendment "voluntariness" standard as the due process test for assessing the admissibility of confessions in State cases. Under this standard, the admissibility of a confession was evaluated on a case by case basis which would be governed by the "totality of the circumstances," which included the facts of the...

Confrontation Clause Reshaped: Crawford v. Washington

In Crawford v. Washington , 124 S.Ct. 1354 (2004), the United States Supreme Court held that to admit hearsay testimonial evidence in criminal prosecutions the Sixth Amendment, the Confrontation Clause, requires that (1) the witness be unavailable and (2) the accused had a prior opportunity to cross-examine the witness. This decision overruled Ohio v. Roberts , 448 U.S. 56 (1980), where the Supreme Court had advanced a test requiring only that the statement from unavailable witnesses fall within a "firmly rooted hearsay exception" or bore "particularized guarantees of...

Executive Branch Power to Postpone Elections

Because of the continuing threat of terrorism, concerns have been raised about the potential for terrorist events to occur close to or during the voting process for the November 2004 elections. For instance, the question has been raised as to whether a sufficiently calamitous event could result in the postponement of the election, and what mechanisms are in place to deal with such an event. This report focuses on who has the constitutional authority to postpone elections, to whom such power could be delegated, and what legal limitations exist to such a postponement. Traditionally, all...

Tribal Sovereignty Over Nonmember Indians: United States v. Billy Jo Lara

On April 19, 2004, the Supreme Court handed down its decision in United States v. Billy Jo Lara allowing Indian tribes and the federal government to each prosecute nonmember defendants for the same on-reservation crime without violating the Double Jeopardy Clause. This case presented interesting questions of Indian tribal sovereignty and how Indian tribes fit into the American Constitutional structure of government. The case centered around a tribe's authority to prosecute nonmember Indians for crimes committed on that tribe's reservation. Billy Jo Lara, an Indian, was arrested by...

Victims' Rights Amendment: A Sketch of a Proposal in the 108th Congress to Amend the United States Constitution

Thirty-three states have added a victims' rights amendment to their state constitutions. S.J.Res. 1 (Sens. Kyl and Feinstein)/ H.J.Res. 10 (Rep. Royce)/ H.J.Res. 48 (Rep. Chabot) would add a victims' rights amendment to the United States Constitution. The Senate Judiciary Committee has reported the measure without amendment and at least initially without a written report. The President has endorsed the Amendment as he had in the 107th Congress ( S.J.Res. 35 / H.J.Res. 88 / H.J.Res. 91 ). Similar proposals date back to the 104th Congress. The Amendment grants the victims of state...

Victims' Rights Amendment: A Proposal to Amend the United States Constitution in the 108th Congress

Thirty-three states have added a victims' rights amendment to their state constitutions. S.J.Res. 1 / H.J.Res. 48 / H.J.Res. 10 would add a victims' rights amendment to the United States Constitution. The amendment is identical to proposals offered in the 107th Congress ( S.J.Res. 35 / H.J.Res. 88 / H.J.Res. 91 ) and has been endorsed by the President. Similar proposals date back to the 104th Congress. The proposed amendment grants the victims of state and federal violent crimes the right:

  • to reasonable and timely notice of public proceedings relating to the crime;
  • to...

Walker v. Cheney: District Court Decision and Related Statutory and Constitutional Issues

On January 29, 2001, President Bush established the National Energy Policy Development Group (NEPDG), with Vice President Cheney serving as Chairman. Along with the Vice President, the NEPDG consisted of six executive department heads, two agency heads, and various other federal officers. The NEPDG was tasked with developing a national energy policy "designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future." Based on reports that meetings of the NEPDG included...

Campaign Finance Law: A Legal Analysis of the Supreme Court Ruling in McConnell v. FEC

In its most comprehensive campaign finance ruling since Buckley v. Valeo in 1976, on December 10, 2003, the U.S. Supreme Court upheld against facial constitutional challenges key portions of the Bipartisan Campaign Reform Act of 2002 (BCRA), P.L. 107-155, also known as the McCain-Feingold or Shays-Meehan campaign finance reform law. In McConnell v. FEC, a 5 to 4 majority of the Court upheld restrictions on the raising and spending of previously unregulated political party soft money and a prohibition on corporations and labor unions using treasury funds to finance “electioneering...

"Sensitive But Unclassified" and Other Federal Security Controls on Scientific and Technical Information: Background on the Controversy

The U.S. Government has always protected scientific and technical information that might compromise national security. Since the 2001 terrorist attacks, controls have been widened on access to information and scientific components that could threaten national security. The policy challenge is to balance science and security without compromising national security, scientific progress, and constitutional and statutory protections. This report summarizes (1) provisions of the Patent Law; Atomic Energy Act; International Traffic in Arms Control regulations; the USA PATRIOT Act, P.L. 107-56 ;...

Harbor Maintenance Funding

The Harbor Maintenance Tax (HMT) was instituted by the Water Resources Development Act (WRDA) of 1986 (P.L. 99-662) to pay for the routine maintenance and operations costs of harbors. Numerous legal challenges to the HMT raise questions about its future and the issue of possible legislative changes. In March 1998, the Supreme Court struck down the application of the HMT with respect to exports, finding that it violated the Constitution’s ban on export taxes. Cases regarding the constitutionality of the HMT on imports remain in litigation. The European Union sees the application of the HMT...

Bipartisan Campaign Reform Act of 2002: Summary and Comparison with Previous Law

The Bipartisan Campaign Reform Act of 2002 (BCRA) was enacted on March 27, 2002 as P.L. 107-155 . It passed the House on February 14, 2002, as H.R. 2356 (Shays-Meehan), by a 240-189 vote. Its companion measure, on which it was largely based, had initially been passed by the Senate in 2001 as S. 27 (McCain-Feingold). On March 20, 2002, however, the Senate approved the House-passed H.R. 2356 by a 60-40 vote, thus avoiding a conference to reconcile differences between S. 27 and H.R. 2356 . A series of technical amendments to the bill was passed later that day by the House, in the...

Child Pornography: Constitutional Principles and Federal Statutes

The Child Pornography Prevention Act of 1996, P.L. 104-208, 110 Stat. 3009- 26, added a definition of “child pornography” that include visual depictions of what appears to be a minor engaging in explicit sexual conduct, even if no actual minor was used in producing the depiction. On April 16, 2002, in Ashcroft v. Free Speech Coalition, the Supreme Court held this provision unconstitutional to the extent that it prohibited pictures that were not produced with actual minors. (This case is discussed under “Section 2256,” below.) In response to Ashcroft, bills were introduced in the House and...

Punch-Card Voting Systems and the California Gubernatorial Recall: Overview of Appellate Court Decisions

On September 23, 2003 an eleven member panel of the U.S. Court of Appeals for the Ninth Circuit unanimously reversed the decision in Southwest Voter Registration Education Project v. Shelley in which a three-judge panel of the Ninth Circuit had ordered the California gubernatorial recall election postponed. The en banc panel determined that the plaintiffs had not shown a strong likelihood of success on the merits of their argument that holding the recall election on October 7, 2003 would violate the Equal Protection Clause of the U.S. Constitution because voters in counties that use...

Congressional Intervention in the Administrative Process: Legal and Ethical Considerations

When congressional committees engage in oversight of the administrative bureaucracy, or when Members of Congress intervene in agency proceedings on behalf of private constituents or other private entities with interests affecting the Members’s constituency, such interventions involve varying degrees of intrusion into agency decisionmaking processes. This report will briefly examine the currently applicable legal and ethical considerations and standards that mark the limits of such intercessions.

The report initially reviews the judicial development and application of standards for...

The Electoral College: How it Works in Contemporary Presidential Elections

The Constitution assigns each state a number of electors equal to the combined total of the state’s Senate and House of Representatives delegations; at present, the number of electors per state ranges from three to 55, for a total of 538. This report discuses constitutional origins, the electoral college today and explains the allocation of electors and electoral votes.

Public Aid to Faith-Based Organizations (Charitable Choice) in the 107th Congress: Background and Selected Legal Issues

Soon after taking office in 2001, President Bush put forward an agenda "to enlist, equip, enable, empower, and expand the heroic works of faith-based and community groups across American." That agenda included a substantial expansion of tax incentives for charitable giving and an extension of charitable choice to most of the federal government's social services programs. But the 107th Congress refused to adopt these initiatives. The House adopted a modified version of the President's initiative; but H.R. 7 bogged down in the Senate due to concerns about the constitutionality and...

Federal/State Relations Under the Clean Air Act: The Supreme Court Takes Two Cases

Recently, the Supreme Court agreed to hear two cases involving federalism issues under the Clean Air Act (CAA). In Alaska Dep't of Environmental Conservation v. EPA , the Court will wrestle with whether EPA can enforce a Prevention of Significant Deterioration (PSD) provision in the CAA contrary to a prior state determination under its EPA-approved PSD program. In Engine Manufacturers Ass'n v. South Coast Air Quality Mgmt. Dist ., the issue is the preemptive scope of the CAA program regulating mobile sources of air pollution. Why the Court has taken these cases is unclear, given that...

Campaign Finance and Prohibiting Contributions by Tax-Exempt Corporations: FEC v. Beaumont

The Federal Election Campaign Act (FECA) prohibits corporations, including tax-exempt, advocacy corporations, from using treasury funds to make direct contributions and expenditures in connection with federal elections. Corporations seeking to make such contributions and expenditures may legally do so only through a political action committee or PAC, 2 U.S.C. § 441b. The Supreme Court has long upheld the ban on corporate contributions, including those made by corporations that are tax-exempt under the Internal Revenue Code. However, in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S....

The University of Michigan Affirmative Action Cases: Racial Diversity in Higher Education

The United States Supreme Court concluded its 2002-03 term with a pair of much anticipated rulings in the University of Michigan affirmative action cases. In Grutter v. Bollinger a 5 to 4 majority of the Justices held that the University Law School had a "compelling" interest in the "educational benefits that flow from a diverse student body," which justified its race-based efforts to construct a "critical mass" of "underrepresented" minority students. But in a companion decision, Gratz v. Bollinger , six Justices decided that the University's policy of awarding "racial bonus points" to...

A Tax Limitation Constitutional Amendment: Issues and Options Concerning a Super-Majority Requirement

Proposals to limit the federal government’s authority to raise taxes have been made several times in recent years. Most frequently, these proposals call for limits on Congress’s ability to pass revenue measures. Typically, limitation proposals would allow increases in tax revenues only under one of two circumstances. First, tax revenues could increase under existing tax laws as a result of economic upturns. Alternatively, they could increase because of a new law, but only if it were passed by a super-majority (typically two-thirds or three-fifths). Questions about how such proposals might...

A Tax Limitation Constitutional Amendment: Issues and Options Concerning a Super-Majority Requirement

Proposals to limit the federal government's authority to raise taxes have been made several times in recent years. Most frequently, these proposals call for limits on Congress's ability to pass revenue measures. Typically, limitation proposals would allow increases in tax revenues only under one of two circumstances. First, tax revenues could increase under existing tax laws as a result of economic upturns. Alternatively, they could increase because of a new law, but only if it were passed by a super-majority (typically two-thirds or three-fifths). Questions about how such proposals might...

Trade Agreements: Requirements for Presidential Consultations, Notices, and Reports to Congress Regarding Negotiations

The Congress, which has exclusive constitutional power to regulate foreign trade, has authorized the President to negotiate and enter into certain trade agreements with foreign countries and have them implemented by legislation considered under a mandatory expedited procedure and without amendments. Because of this nonamendability requirement on one hand and, on the other, the Congress’s intent to exercise its constitutional function of fashioning foreign trade policy so as to assure that such agreements reflect the objectives set for them by the legislation authorizing their negotiation...

Campaign Finance: Issues Before the U.S. Supreme Court in McConnell v. FEC

Shortly after the Bipartisan Campaign Reform Act of 2002 (BCRA), P.L. 107-155 ( H.R. 2356 , 107th Cong.) was enacted in March 2002 (also known as the McCain-Feingold campaign finance reform legislation), Senator Mitch McConnell and others filed suit in U.S. District Court for D.C. against the Federal Election Commission (FEC) and the Federal Communications Commission (FCC) arguing that provisions of the law are unconstitutional. Ultimately, eleven suits challenging BCRA were brought by more than 80 plaintiffs and consolidated into one lead case, McConnell v. FEC. On May 2, 2003, the...

Iraq: Turkey, the Deployment of U.S. Forces, and Related Issues

On March 1, 2003, the Turkish parliament rejected a resolution authorizing the deployment of U.S. forces to Turkey to open a northern front in a war against Iraq. The rejection resulted from strains within the ruling Justice and Development Party (AKP), an inexperienced leadership, competing influences, and the overwhelming opposition of Turkish public opinion. Moreover, the powerful Turkish military had not actively supported the government's position before the vote, and the President had suggested that the resolution would be unconstitutional. For a long time, Turkey had serious...

Museum and Library Services Act of 2003 (H.R. 13): Using "Obscenity" and "Decency" Criteria in Selecting Grantees

The Museum and Library Services Act of 2003, H.R. 13 , 108th Congress, as passed by the House, reauthorizes funding for the Institute of Museum and Library Services. It requires the Director to deny funding to any project that has been found to be obscene by a court, and requires the Director, in making grants, to "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public." The Spending Clause of the Constitution gives Congress broad power to appropriate funds, and the content standards in H.R. 13 appears to fall well...

Super-Majority Voting Requirement for Tax Increases: An Overview of Proposals for a Constitutional Amendment

This report is an overview of proposed constitutional amendments (including H.J.Res. 50 and H.J.Res. 54 , 108th Cong.) to require a super-majority vote for certain tax increases. Proponents of an extraordinary majority requirement argue that it would lead to greater public confidence in the predictability and stability of the tax system; opponents counter that such a requirement would disregard the constitutional principle of majority rule. There are now only a few constitutional provisions which expressly impose super-majority voting requirements. This report will be updated as...

Iraq War: Background and Issues Overview

The Iraq war was launched on March 19, 2003, with a strike against a location where Iraqi President Saddam Hussein and top lieutenants were believed to be meeting. On March 17, President Bush had given Saddam an ultimatum to leave the country or face military conflict. Although some resistance was encountered after U.S. troops entered Iraq, all major Iraqi population centers had been brought under U.S. control by April 14. In November 2002, the United Nations Security Council had adopted Resolution 1441, giving Iraq a final opportunity to "comply with its the disarmament obligations" or...

The Discharge Rule in the House: Recent Use in Historical Context

The discharge rule of the House of Representatives affords a way for Members to bring to the floor a measure not reported from committee. It may also be used to bring to the floor a special rule for consideration of a measure, either reported or unreported, if the Committee on Rules declines to do so. Before a motion to discharge may be made, 218 Members must sign a petition for that purpose.

Since the present form of discharge rule was adopted in 1931, 563 discharge petitions have been filed, of which 47 obtained the required signatures. The House voted for discharge 26 times, and passed...

The Electoral College: Reform Proposals in the 108th Congress

American voters elect the President and Vice President of the United States under a complex arrangement of constitutional provisions, federal and state laws, and political party practices known as the electoral college system. Despite occasional close elections, this system has delivered uncontested results in 46 of 50 elections since adoption of the 12th Amendment, effective in 1804. Throughout this period, nevertheless, it has been the subject of persistent criticism and many reform proposals. Related measures fall into two basic categories: those that would eliminate the electoral...

Congressional Investigations: Subpoenas and Contempt Power

When conducting investigations of the executive branch, congressional committees and Members of Congress generally receive the information required for legislative needs. If agencies fail to cooperate or the President invokes executive privilege, Congress can turn to a number of legislative powers that are likely to compel compliance. The two techniques described in this report are the issuance of subpoenas and the holding of executive officials in contempt. These techniques usually lead to an accommodation that meets the needs of both branches. Litigation is used at times, but federal...

Child Pornography Produced Without an Actual Child: Constitutionality of 108th Congress Legislation

In Ashcroft v. Free Speech Coalition , the Supreme Court declared unconstitutional the Child Pornography Prevention Act of 1996 (CPPA), P.L. 104-208 , to the extent that it prohibited material that was produced without the use of an actual child. The only possible means that the Court explicitly left open for Congress to try to restrict such material was to ban it, but allow an affirmative defense that the material was produced without using actual children. Even this approach the Court did not say would be constitutional, but merely found no need to decide whether it would be. This...

Child Pornography: Side-by-Side Comparison of the Senate-passed and House-passed Versions of S. 151, 108th Congress

In Ashcroft v. Free Speech Coalition , the Supreme Court declared unconstitutional the federal child pornography statute to the extent that it prohibited material that was produced without the use of an actual child. (1) The case held, in other words, that pornography produced without the use of a minor, whether drawn or painted, computer-generated, or produced only with adult actors, is protected by the First Amendment, even if it appears to portray a minor, unless it is obscene. (2) In response to this decision, the Senate and House passed differing versions of S. 151 , 108th...

Child Pornography: Comparison of Selected Provisions of the Senate-passed and House-passed Versions of S. 151, 108th Congress, with Brief Comments on their Constitutionality

In Ashcroft v. Free Speech Coalition , the Supreme Court declared unconstitutional the federal child pornography statute to the extent that it prohibited material that was produced without the use of an actual child. (1) The case held, in other words, that pornography produced without the use of a minor, whether drawn or painted, computer-generated, or produced only with adult actors, is protected by the First Amendment, even if it appears to portray a minor, unless it is obscene. (2) In response to this decision, the Senate and House passed differing versions of S. 151 , 108th...

Pakistan-U.S. Anti-Terrorism Cooperation

Pakistan is a key front-line ally in the U.S.-led anti-terrorism coalition. After September 2001, Pakistani President Musharraf ended his government's ties with the Taliban regime of Afghanistan and has since cooperated with and contributed to U.S. efforts to track and capture remnants of Al Qaeda and Taliban forces that have sought refuge inside Pakistani territory. Pakistan's cooperation has been called "crucial" to past and ongoing U.S. successes in the region, but there is growing concern that the bilateral relationship is fragile and may be undermined by potentially...

Sexual Offender Registration Acts: Supreme Court Review of the Connecticut and Alaska Statutes in Connecticut Dept. of Public Safety v. Doe and Smith v. Doe

The United States Supreme Court has rejected constitutional challenges to two state sex offender registration and notification statutes (SORA), Connecticut Dept. of Public Safety v. Doe , 123 S.Ct. 1140 (2003); Smith v. Doe , 123 S.Ct. 1160 (2002). In one, it concluded that as a matter of due process registrants under the Connecticut statute need not be afforded the opportunity of a hearing to establish that they should be released from the burdens of the statute because they are not currently dangerous. In the other, it held that the ex post facto clause does not ban application of the...

District of Columbia: Issues in the 108th Congress

This report provides an overview of District of Columbia-related policy and funding issues of interest to Congress. The United States Constitution gives Congress exclusive legislative authority over the affairs of the District of Columbia. As a result, the 108th Congress may debate a number of funding, governance, and constitutional issues affecting the District of Columbia, including approval of the city’s budget, enactment of a general federal payment, budget autonomy for the city, and voting representation in Congress. In addition, Congress will consider whether to continue to include...

Copyright Term Extension: Eldred v. Ashcroft

This report examines the U.S. Supreme Court’s decision in Eldred v. Ashcroft. Plaintiffs/Petitioners challenged the constitutionality under the Copyright Clause of a law adding 20 years to the terms of existing and future copyrights. The law was upheld by both the U.S. district court and the court of appeals considering it. Among the questions before the Supreme Court was whether Congress may retrospectively extend the term of copyright for existing copyrights; and, what role and impact, if any, does the First Amendment have in determining the validity of a congressional extension of...

The Right of Undocumented Alien Children to Basic Education: An Overview of Plyler v. Doe

In Plyler v. Doe (457 U.S. 202 (1982)), the Supreme Court held that it was unconstitutional for Texas to deny illegal alien children who were residing in the state equal access to its elementary and secondary schools. Though the vote was close (5-4), Plyler remains good law and continues to be cited for the proposition that illegal aliens are not beyond protection under the Constitution. However, while Plyler set limits on state power, it clearly suggested that constitutional restrictions on the ability of states to discriminate against illegal aliens may be influenced...

The Intelligence Community and 9/11: Congressional Hearings and the Status of the Investigation

The terrorist attacks of September 11, 2001 led many to inquire whether there had been a failure by United States intelligence agencies to collect all available information about the plots that led to the attacks, to analyze it properly, and disseminate it in time to protect the American public. Congressional intelligence committees responded by launching an unprecedented Joint Inquiry to investigate the Intelligence Community's record in regard to the 9/11 attacks and make recommendations for further legislative action. The Joint Inquiry began its investigation in February 2002 and held...

Withdrawal from the ABM Treaty: Legal Considerations

On December 13, 2001, President Bush gave formal notice to Russia, Belarus, Kazakhstan, and the Ukraine that the United States was withdrawing from the Anti-Ballistic Missile Treaty because of the constraints it imposes on the testing of missile defense systems; and six months later, on June 13, 2002, the treaty effectively terminated. The ABM Treaty has been in force since 1972. Pertinent legal questions that have been raised about U.S. withdrawal concern whether the treaty allows it; if so, the procedure to be followed; and, finally, the constitutionality of the President doing...

Constitutional Bounds on Congress' Ability to Protect the Environment

Federal protection of the environment must hew to the same constitutional bounds as any other federal activity. In the past decade, the Supreme Court has invigorated several of these bounds in ways that present new challenges to congressional drafters of environmental statutes. This report reviews five of these newly emergent constitutional areas. For each area, the focus is its significance for current and future federal environmental legislation. First, the Commerce Clause , requiring that activities regulated by federal laws enacted under the Clause have a sufficient nexus with...

Global Climate Change: Selected Legal Questions About the Kyoto Protocol

On November 12, 1998, the United States signed the Kyoto Protocol to the United Nations Framework Convention on Climate Change. The Protocol had been concluded a year earlier (on December 10, 1997) by delegates from 161 nations and sets binding targets for reduction of emissions of greenhouse gases by developed nations. It cannot be legally binding on the U.S. until it enters into effect internationally and the Senate gives its advice and consent. Nonetheless, signature of a treaty does impose an obligation under international law to refrain from actions that would undermine the Protocol's...

Section 1983 and the Spending Power: Enforcement of Federal "Laws"

In Gonzaga University v. Doe , the Supreme Court in 2002 held that a student may not sue a private university for damages under 42 U.S.C. Section 1983 to enforce provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). Section 1983, derived from the Civil Rights Act of 1871, authorizes suits against state officials and others acting "under color" of state law for deprivation of rights derived from the "Constitution and laws" of the United States. In 1980, in Maine v. Thiboutot , the Court interpreted section 1983 broadly to apply to all federal "laws," not...

The Law of Church and State: Developments in the Supreme Court Since 1980

The religion clauses of the First Amendment provide that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." Prior to the past two decades the Supreme Court frequently construed these clauses to create, in Thomas Jefferson's oft- quoted metaphor, a "wall of separation between church and state." However, many of the Court's decisions precipitated substantial public discontent and spawned organized efforts to overturn or otherwise alter its decisions. Particularly since Ronald Reagan was elected to the Presidency in 1980, those...

Congressional Candidacy, Incarceration, and the Constitution's Inhabitancy Qualification

The issue of whether one is permitted to run for and hold office in the House of Representatives either after a felony conviction, and/or while incarcerated in prison, specifically involves a question of the qualifications, or disqualifications, to be a Representative in Congress. There are three, and only three "positive" qualifications for Representative in Congress set out in the United States Constitution: (1) age (25 years); (2) citizenship (7 years); and (3) inhabitancy (one must be an "inhabitant" of the State from which chosen "when elected"). It is now well-settled that these...

Informing Congress: The Role of the Executive in Times of War and Military Conflict, 1941-2001

Under the Constitution of the United States, the President is responsible for prosecuting war and directing the armed forces during military conflicts, including attacks upon the nation. Congress is constitutionally empowered to declare war, may otherwise authorize the involvement of American armed forces in military conflict, appropriates funds for government activities and operations, including military actions, and engages in oversight to assess the extent to which government operations have been efficiently, economically, and effectively conducted using appropriated funds. Congress...

Student Drug Testing: Constitutional Issues

Issues of personal privacy and application of Fourth Amendment safeguards against "unreasonable" governmental searches and seizures are the focus of judicial rulings on the constitutionality of "suspicionless" random drug testing of public school students. Generally speaking, governmental actors are required by the Fourth Amendment to obtain warrants based on probable cause in order to effectuate constitutional searches and seizure. An exception to ordinary warrant requirements has gradually evolved, however, for cases where a "special need" of the government, not related to criminal law...

Child Pornography Produced Without an Actual Child: Constitutionality of 107th Congress Legislation

In Ashcroft v. Free Speech Coalition , the Supreme Court declared unconstitutional the Child Pornography Prevention Act of 1996 (CPPA) to the extent that it prohibited material that was produced without the use of an actual child. The only possible means that the Court explicitly left open for Congress to try to restrict such material was to ban it, but allow an affirmative defense that the material was produced without using actual children. Even this approach the Court did not say would be constitutional, but merely found no need to decide whether it would be. This approach would...

Capital Punishment: Summary of Supreme Court Decisions of the 2001-02 Term

The Supreme Court took six significant actions with respect to capital punishment during the 2001-02 Term. In Atkins v. Virginia, which many consider the most significant case of the term, the Court decided on June 20, 2002, that executing the mentally retarded violates the Eighth Amendment ban on "cruel and unusual punishment." Three cases involved issues concerning the constitutional standards for effective- assistance- of- counsel in death penalty cases. On March 27, 2002, in Mickens v. Taylor , the Court addressed "what a defendant must show in order to demonstrate a Sixth Amendment...

Nuclear Waste Repository Siting: Expedited Procedures for Congressional Approval

The Nuclear Waste Policy Act of 1982 (NWPA), as amended, establishes a process for the federal government to designate a site for a permanent repository for civilian nuclear waste. In February 2002, this process culminated in a presidential recommendation for a repository at Yucca Mountain, Nevada. On April 8, the State of Nevada exercised its authority under NWPA to disapprove the site. As a result of this state disapproval, the site may be approved only if a joint resolution of repository siting approval becomes law after being passed by Congress during the first period of 90 days...

Education Vouchers: an Overview of the Supreme Court's Decision in Zelman v. Simmons-Harris

Education vouchers generally refer to school choice programs in which the state will help parents pay tuition for their children to attend out-of-district public schools, charter schools, private schools, and, sometimes, religious schools. When vouchers are used by parents to send their children to religious school, public dollars flow from public to religious coffers, and therefore, may violate the Establishment Clause of the First Amendment. However, in Zelman v. Simmons-Harris , the Supreme Court upheld an Ohio school educational choice program that gave poor families in the Cleveland...

Reorganizing the Executive Branch in the 20th Century: Landmark Commissions

This report studies the work and results of a number of 20th century commissions and other similar bodies that have had executive organization and reorganization as central to their mandate. For purposes of this report, these reorganization exercises are referred to as "landmark commissions." Context for discussion of landmark commissions is provided by a review and analysis of six crucial historical periods, such as the Progressive Era, in the evolution of the executive branch. The selected landmark commissions, beginning with the Keep Commission in 1905 and concluding with the National...

Arms Control and Strategic Nuclear Weapons: Unilateral vs. Bilateral Reductions

On November 13, 2001, President Bush announced that he planned to reduce U.S. strategic nuclear weapons to between 1,700 and 2,000 operationally deployed warheads. He noted that he would make these reductions unilaterally, without pursuing a formal arms control agreement with Russia. President Putin welcomed the proposed reductions, but argued that they should be made through a formal treaty. Although the United States eventually agreed to sign a "legally binding" agreement, officials in the Bush Administration have argued that the United States should not be bound by formal arms control...

Walker v. Cheney: Statutory and Constitutional Issues Arising From the General Accounting Office's Suit Against the Vice President

On January 29, 2001, President Bush established the National Energy Policy Development Group (NEPDG), with Vice President Cheney serving as Chairman. Along with the Vice President, the NEPDG consisted of six executive department heads, two agency heads, and various other federal officers. The NEPDG was tasked with developing a national energy policy "designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future." Based on reports that meetings of the NEPDG included...

Peru: Recovery from Crisis

Peru survived constitutional and political crises in 1999 and 2000 and now faces the challenges of further strengthening democratic institutions and stimulating the economy. President Alejandro Toledo assumed office on July 28, 2001. He won extraordinary elections that had to be organized following the sudden resignation in November 2000 of President Alberto Fujimori in the wake of electoral, human rights, and corruption scandals. President Fujimori headed Peru from 1990 to 2000. During that time he did much to bring under control destabilizing factors such as terrorism, drug...

No-fault Eviction of Public Housing Tenants for Illegal Drug Use: A Legal Analysis of Department of Housing and Urban Development v. Rucker

In Department of Housing and Urban Development v. Rucker , the Supreme Court unanimously approved provisions of the 1988 Drug Abuse Act enacted by Congress in response to "rampant drug- related or violent crime" in public housing projects. Specifically, the law allows for no-fault evictions of public housing tenants by mandating the use of lease provisions, which state that "any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause...

Prohibiting Television Advertising of Alcoholic Beverages: A Constitutional Analysis

Federal law does not prohibit radio or television advertising of alcoholic beverages. However, starting in 1936 for radio and 1948 for television, the industry voluntarily refrained from advertising hard liquor on radio or television. In December, 2001, NBC announced that it would air liquor advertisements, but in March 2002, it reversed its policy. The U.S. Court of Appeals for the District of Columbia has struck down a law that banned "indecent" speech on broadcast radio and television 24 hours a day, but has upheld the current law, which imposes the ban from 6 a.m. to 10 p.m. This...

Disqualification, Death, or Ineligibility of the Winner of a Congressional Election

On several occasions, including a Senate race in 2000, a congressional candidate on the ballot for the general election has died within such proximity to election day that there was not sufficient time under State election-administration procedures to change the ballot and substitute another candidate. Leaving the name of a deceased candidate on the ballot has raised questions and criticisms in some quarters concerning State authority to issue a "final" ballot and to decline to add or substitute other candidates at some point prior to an election; whether votes for the deceased candidate...

Japan-U.S. Cooperation on Ballistic Missile Defense: Issues and Prospects

The issue of missile defense cooperation with Japan intersects with several issues of direct concern to Congress, ranging from support for developing a capability to protect U.S. regional forces, Asia-Pacific allies, and Taiwan, from Chinese short- and medium-range missiles, to countering a possible future threat to U.S. territory from long-range missiles developed by North Korea. Japan's current participation in the U.S. ballistic missile defense (BMD) program dates from August 1999, when the Japanese government agreed to conduct cooperative research on four components of the interceptor...

Campaign Finance Reform: A Legal Analysis of Issue and Express Advocacy

Issue advocacy communications have become increasingly popular in recent federal election cycles. These advertisements are often interpreted to favor or disfavor certain candidates, while also serving to inform the public about a policy issue. However, unlike communications that expressly advocate the election or defeat of a clearly identified candidate, the Supreme Court has determined that issue ads are constitutionally protected First Amendment speech that cannot be regulated in any manner. According to most lower court rulings, only speech containing express words of advocacy of...

Campaign Finance Reform: A Legal Analysis of Issue and Express Advocacy

Issue advocacy communications have become increasingly popular over the federal election cycles. Often these advertisements could be interpreted to favor or disfavor certain candidates, while also serving to inform the public about a policy issue. However, unlike communications that expressly advocate the election or defeat of a clearly identified candidate, the Supreme Court has ruled that issue ads are constitutionally protected First Amendment speech and cannot be regulated in any manner. According to most lower court rulings, only speech containing express words of advocacy of election...

Anti-Hoax Legislation in the 107th Congress: Addressing Problems since September 2001

Since September 11, 2001, the number of false claims of terrorist acts has ballooned. These false claims have become a serious headache for law enforcement officials, who are overwhelmed with working overtime to prevent actual terrorist acts and the investigations of all suspicious and fake events. Under current law, it is a felony to perpetrate a hoax by claiming there is a bomb on an airplane or to communicate in interstate commerce a threat to do bodily harm or personal injury to another. However, current law does not address a hoax related to biological, chemical, or nuclear dangers...

The "Son of Sam" Case: First Amendment Analysis and Legislative Implications

In Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board , the United States Supreme Court held that New York State's "Son of Sam" law was inconsistent with the First Amendment's guarantee of freedom of speech and press. The Son of Sam law, in the Court's words, "requires that an accused or convicted criminal's income from works describing his crime be deposited in an escrow account. These funds are then made available to the victims of the crime and the criminal's other creditors." "[T]he Federal Government and most of the States have enacted statutes with similar...

Anticircumvention under the Digital Millennium Copyright Act: Universal Studios v. Corley

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA). Title I implements two 1996 World Intellectual Property Organization (WIPO) treaties, both of which contain language obligating member states to prevent circumvention of technological measures designed to protect copyrighted works and to prevent tampering with the integrity of copyright management information. To this end, the Act adds a new chapter 12 to the U.S. Copyright Act, 17 U.S.C. Sections 1201 - 1205, entitled "Copyright Protection and Management Systems." Section 1201(a)(1) prohibits any person from...

Protection of National Security Information: The Classified Information Protection Act of 2001

The purpose of this report is to identify legal issues relevant to legislation introduced in Congress that provides for criminal punishment for the unauthorized disclosure of classified information by government employees and contractors with access to such information. The Classified Information Protection Act of 2001, H.R. 2943 , would make such an act a felony punishable by a fine or a prison term no longer than three years, or both. The language in H.R. 2943 is identical to section 304 of H.R. 4392 , 106th Congress, the Intelligence Authorization Act for Fiscal Year 2001. H.R....

Nicaragua: Country Brief

Once plagued by dictatorial rule, civil war, and economic chaos, since 1990 Nicaragua has developed democratic institutions and a framework for economic development. Progress has been made in social and economic reforms. Nonetheless, significant challenges remain: Nicaragua is still very poor, and its institutions are weak. Elections for the presidency and National Assembly will be held on November 4, 2001. Major candidates include Sandinista leader and former President Daniel Ortega, and former Vice President Enrique Bolanos of the ruling Liberal Constitutional party. U.S. policy toward...

Federal and State Regulation of Research Involving Human Fetal Tissue

This report discusses federal and state regulation of research involving human fetal tissue. The NIH Revitalization Act of 1993 and the Health Research Extension Act of 1985 regulate the federal funding of fetal research and fetal tissue transplantation. The National Organ Transplant Act restricts the receipt or transfer of fetal organs. Additional fetal research statutes exist at the state level, but have been subject to challenges in federal courts. In general, the courts have found the state fetal research statutes to be unconstitutionally vague.

Firearms Prohibitions and Domestic Violence Convictions: The Lautenberg Amendment

The Lautenberg Amendment to the Gun Control Act of 1968 establishes a comprehensive regulatory scheme designed to prevent the use of firearms in domestic violence offenses. To this end, the Amendment prohibits the possession of firearms by persons convicted of a misdemeanor crime of domestic violence, and, relatedly, prohibits the knowing sale or disposition of any firearm or ammunition to a domestic violence misdemeanant. Furthermore, the Lautenberg Amendment alters the traditional public interest exception to the possession of firearms under the Gun Control Act by making the prohibition...

Recess Appointments of Federal Judges

Education Savings Accounts for Elementary and Secondary Education

The Economic Growth and Tax Relief Reconciliation Act of 2001 (P.L. 107-16) that President Bush signed on June 7, 2001, includes these changes, effective after 2001. The most prominent issue they raise is whether the federal government should assist families whose children are educated in private schools. Policy questions include what effect such assistance might have on public schools and student performance and whether it would be constitutional. Concerns have also been expressed that the legislation would create compliance problems and is most likely to benefit better-off families. P.L....

National Monuments and the Antiquities Act: President Clinton's Designations and Related Issues

President Clinton used the Antiquities Act of 1906 (16 U.S.C. ¿¿431-433) to create 19 new national monuments and enlarge 3 others. All but one of the designations were made during President Clinton's last year in office. The new monuments range in size from 2 acres to nearly 1.9 million acres. The 22 monuments created or enlarged by President Clinton total about 5.9 million acres, the second largest acreage of any President, and only President Franklin D. Roosevelt used his authority more often (on 28 occasions vs. 22 for President Clinton). The Antiquities Act authorizes the President...

Congressional Access to Executive Branch Information: Legislative Tools

This report begins by reviewing the precedents established during the Washington Administration for withholding documents from Congress. Close examination reveals that the scope of presidential privilege is often exaggerated. Congress had access to more documentation than is commonly believed and might have had more had it pressed for it. Subsequent sections focus on various forms of congressional leverage: the power of the purse, the power to impeach, issuing congressional subpoenas, holding executive officials in contempt, House resolutions of inquiry, GAO investigations, and blocking...

The Pocket Veto: Its Current Status

The Supreme Court Upholds EPA Standard- Setting Under the Clean Air Act: Whitman v. American Trucking Ass'ns

On February 27, 2001, the Supreme Court handed down its decision in Whitman v. American Trucking Associations , a challenge to EPA's promulgation in 1997 of revised national ambient air quality standards for ozone and particulates under the Clean Air Act. On the broader issues, the Court ruled that (1) the Act's provisions governing the setting of primary (health-protective) ambient standards did not transgress the "nondelegation doctrine," a moribund constitutional principle that the court below had resurrected, and (2) the Act bars EPA from considering implementation costs when it sets...

Campaign Finance Reform and Incentives to Voluntarily Limit Candidate Spending From Personal Funds: Constitutional Issues Raised by Public Subsidies and Variable Contribution Limits

The Supreme Court in Buckley v. Valeo ruled that spending limits, including the amount a candidate can spend on his or her own campaign from personal funds (also known as personal fund expenditure limits) are unconstitutional. The Court did, however, uphold a system of spending limits, on the condition that they are voluntarily accepted in exchange for some form of public financing. As a result of these Court rulings, the concept of various incentives toward voluntary compliance with a personal funds expenditure limit has been developed. This report discusses some constitutional issues...

Campaign Finance Reform: Constitutional Issues Raised by Disclosure Requirements

Current federal election law contains reporting and disclosure requirements related to campaign financing. (1) The Supreme Court has generally upheld such provisions, although imposing disclosure requirements on spending for communications that do not meet the strict standard of "express advocacy" may be held unconstitutional. Campaign finance reform legislation often contains provisions that would impose additional reporting and disclosure requirements under the Federal Election Campaign Act (FECA). For example, S. 27 (McCain/Feingold), would require disclosure of disbursements...

Census 2000: Legal Issues re: Data for Reapportionment and Redistricting

The release of the 2000 Census data for the apportionment of the House of Representatives among the states and the release of the state redistricting data to the states as required by P.L. 94-171 has renewed the decennial debate over several issues. First, the debate over the use of sampling to adjust the decennial population census data was not completely resolved by the U.S. Supreme Court decision that a federal statute prohibits the use of sampling to adjust the decennial census for the purposes of apportionment of the House of Representatives among the states. The Court did not hold...

The Supreme Court Addresses Corps of Engineers Jurisdiction Over "Isolated Waters": The SWANCC Decision

On January 9, 2001, the Supreme Court handed down Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers . At issue in SWANCC was the scope of Clean Water Act section 404, which requires permits for the discharge of dredged or fill materials into "navigable waters," defined by the Act as "waters of the United States." Section 404 is the charter for the federal wetlands permitting program. SWANCC explicitly held that the Corps of Engineers' use of the "migratory bird rule," adopted by the agency to interpret the reach of its section 404 authority over...

The Vice Presidency: Evolution of the Modern Office, 1933-2001

Something of an afterthought, the vice presidential office came to the attention of the delegates to the constitutional convention in the closing days of their deliberations in 1787. The Vice President's constitutional mandate vested him with two responsibilities: presiding over the deliberations of the Senate and standing by to succeed to the presidency in the event of the incumbent's death. For the next 140 years, those holding the vice presidential office served only these functions. Indeed, the Vice President soon came to be regarded as a legislative branch official. However, for...

Voting and Quorum Procedures in the House of Representatives

The Constitution requires that a quorum, or a simple majority of the Members, is to be present on the floor when the House of Representatives transacts business. However, the House conducts much of its legislative business in Committee of the Whole where this constitutional requirement does not apply. Also, the House always presumes that a quorum is present unless and until its absence is demonstrated conclusively. The rules of the House severely limit the occasions on which a Representative may make a point of order that a quorum is not present, either in the House or in Committee of...

Kosovo and the 106th Congress

The Kosovo crisis and aftermath dominated U.S. foreign policy during much of the 106th Congress. From 1999 to 2000, international focus on Kosovo evolved from peace negotiations to a NATO air war to post-war peacekeeping and an international protectorate for the province. Scenarios regarding the use of U.S. military forces in and around Kosovo were a central issue in the Congress. Before, during, and after NATO's air operation against Serbia in early 1999, some Members of Congress challenged the President's authority under the Constitution to engage U.S. armed forces in...

Government at the Dawn of the 21st Century: A Status Report

Shortly after the beginning of the 20th century, the federal government entered a new phase the rise of the administrative state. Among the forces propelling this development was the Progressive Movement, which sought greater government engagement with and regulation of various sectors of American society. An autonomous Department of Labor, with Cabinet status, was established in 1913, along with the Federal Reserve. The Federal Trade Commission was created the following year. With the entry of the United States into World War I, regulatory activities further expanded, and the number of...

Encryption Export Controls

Encryption exports are controlled under the Arms Export Control Act (AECA) and the Export Administration Act (EAA), the latter statute to expire August 20, 2001. The more stringent AECA controls, administered by the State Department, apply to encryption items classified as defense articles or services. Items not so classified are subject to regulation by the Department of Commerce (DOC) under the extended EAA authorities. DOC requires licenses for certain commodities and software, but allows other encryption items to be exported under license exceptions. The U.S. Government has...

Abortion Law Development: A Brief Overview

This report offers an overview of the development of abortion law from 1973 to the present. Beginning with a brief discussion of the historical background, the report analyzes the leading Supreme Court decisions over the past twenty-eight years, emphasizing particularly the landmark decisions in Roe and Doe, the Court’s shift

in direction in Webster v. Reproductive Health Services and Planned Parenthood of Southeastern Pennsylvania v. Casey, and the Court’s most recent decision on abortion, Stenberg v. Carhart. The Court’s decisions on the constitutionality of restricting public funding...

Charitable Choice: Constitutional Issues and Developments Through the 106th Congress

Charitable choice seeks to expand the universe of religious organizations that can participate in publicly funded social service programs. The establishment of religion clause of the First Amendment has long been construed to allow religious organizations to participate in such programs. But in the past it has generally been interpreted to require publicly funded religious social services providers to be incorporated separately from their sponsoring religious institutions, to forego religious activities and proselytizing in the publicly funded programs, and to remove religious symbols from...

Economic Sanctions: Legislation in the 106th Congress

Economic sanctions are coercive measures imposed by one country, or coalition of countries, against another country, its government or individual entities therein, to bring about a change in behavior or policies. Economic sanctions regimes typically include a range of measures such as trade embargoes; restrictions on exports or imports; denial of foreign assistance, loans and investments; control of foreign assets held in the United States; or the restriction of economic transactions that involve U.S. citizens or businesses. As one part of the foreign policy tool kit, economic sanctions...

Term Limits for Members of Congress: Issues in the 106th Congress

Congressional efforts to limit federal lawmakers' tenure have waned since 1997, but supporters' differing strategies, various service limits at the federal and state levels, and the most recent general election are keeping the issue alive. Some proponents have changed their goal from mandatory limits through a constitutional amendment to voluntary limits through candidates' pledges to limit their own tenure. Fifty-nine Members of the 106th Congress have pledged to limit their service, including 10 who will reach their self-imposed limit at the end of this Congress. House Members who have...

The House Apportionment Formula in Theory and Practice

This report has four major purposes: to summarize the constitutional and statutory requirements governing apportionment; to explain how the current apportionment formula works in theory and in practice; to summarize recent challenges to it on grounds of unfairness; and to explain the reasoning underlying the choice of the equal

proportions method over its chief alternative, major fractions.

The Religious Land Use and Institutionalized Persons Act of 2000

On September 22, 2000, President Clinton signed into law the "Religious Land Use and Institutionalized Persons Act" (RLUIPA). The measure is a truncated version of the "Religious Liberty Protection Act" ( H.R. 1691 ), which passed the House in 1999 but lost momentum after a dispute emerged over its effect on state and local civil rights laws. RLUIPA is the latest chapter in what has been a lengthy dispute over whether religious practices ought to be given special treatment by government and about Congress' constitutional authority to require state and local governments to do so. RLUIPA...

An Overview of Supreme Court Search and Seizure Decisions from the October 1999 Term

In the October 1999 Term, the Supreme Court placed limits on the extent to which intrusions into reasonable privacy interests in a number of situations may withstand constitutional muster. Drawing upon Terry v. Ohio , 392 U.S. 1 (1968), and its progeny, the Court in Florida v. J. L. , ___ U.S. ___, 120 S. Ct. 1375 (2000), held that a stop and frisk may not be justified by an anonymous tip, without more, that a person in a given location and wearing specific clothes was carrying a gun. Such a tip merely provided identifying information about the subject, but lacked sufficient indicia...

The President's Cabinet: Evolution, Alternatives, and Proposals for Change

The President's Cabinet is an institution whose existence rests upon custom rather than law. President George Washington found the Cabinet concept, a meeting of departmental secretaries, to be useful, and all subsequent Presidents have followed this precedent. Presidents have differed in their opinions as to the utility of the Cabinet, but all have found some political and administrative strengths in its continuance. This report discusses how membership in the Cabinet has changed over the decades. The selection and removal processes are examined as well as commentary on the Cabinet by...

Prayer and Religion in the Public Schools: What Is, and Is Not, Permitted

A recurring and politically volatile issue in constitutional law concerns the standards imposed by the religion and free speech clauses of the First Amendment on government involvement with religious activities and beliefs in the public schools. In pertinent part the First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech...." Because each of these clauses is worded as an absolute, it is sometimes ambiguous whether governmental involvement in a given situation is...

Voting in Primary Elections: State Rules On Participation

This report summarizes information for the states and the District of Columbia concerning voting participation in primary elections. Procedures vary from state to state concerning who is eligible to vote in primary elections, depending on whether the state has an open primary (a voter has the option of choosing either party ballot in the secrecy of the polling booth) or a closed primary (a voter must register with a political party before the election to be eligible to vote or must publicly choose a party ballot at the polling place). At present, 12 states have open primaries and 38 states...

Capital Punishment: Summary of Supreme Court Decisions During the 1999-00 Term

With the exception of the Supreme Court's ruling in Williams v. Taylor, (1) the Court did not find any serious reversible error in the lower courts' opinions reviewed during the 1999-2000 term that relate to capital punishment. In Ramdass v. Angelone, (2) it was decided that a habeas corpus petitioner could not obtain relief from his death sentence on the ground that the state courts should have taken a less technical approach to determining whether he was entitled to have the penalty phase jury instructed that he would be ineligible for parole if the jury recommended a...

China's Accession to the World Trade Organization: Legal Issues

The People's Republic of China (PRC) applied to resume membership in the General Agreement on Tariffs and Trade (GATT) in 1986 and continues to negotiate its accession to GATT's successor, the World Trade Organization (WTO). A country may join the WTO on terms agreed by the applicant and WTO Members if two-thirds of Members approve the country's accession agreement. A Member may "opt out" of WTO relations with another country by invoking Article XIII of the WTO Agreement, its "non-application" clause. The United States and the PRC agreed to bilateral terms for the PRC's accession in...

The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law

The Posse Comitatus Act outlaws willful use of any part of the Army or Air Force to execute the law unless expressly authorized by the Constitution or an Act of Congress. History supplies the grist for an argument that the Constitution prohibits military involvement in civilian affairs subject to only limited alterations by Congress or the President, but the courts do not appear to have ever accepted the argument unless violation of more explicit constitutional command could also be shown. The provision for express constitutional authorization when in fact the Constitution contains no such...

United States v. Morrison: The Supreme Court Declares 42 U.S.C. Section 13981 Unconstitutional

In United States v. Morrison , the Supreme Court considered the constitutionality of 42 U.S.C. Section 13981, which provided a federal civil cause of action to any victim of gender-motivated violence. Analyzing Section 13981 according to the framework delineated in United States v. Lopez , the Court held that gender motivated violence is not a commercial activity and is not substantially connected to interstate commerce, rendering the statute invalid under the Commerce Clause. The Court further determined that, since it targeted private actors, Section 13981 was outside the scope of the...

Victims' Rights Amendment: Proposals to Amend the United States Constitution in the 106th Congress

Thirty-three states have added a victims rights amendment to their state constitutions. Both House and Senate Judiciary Committees have held hearings on similar proposals to amend the United States Constitution, in the Senate on S.J.Res. 3 introduced by Senator Kyl for himself and Senator Feinstein and in the House on H.J.Res. 64 introduced by Representative Chabot. The Senate Committee has reported out S.J.Res. 3 , S.Rept. 106-254 , and the Senate debated the measure for two days in April.

The proposed amendment defines the participation of crime victims in state and federal...

The Religious Liberty Protection Act: Background and Current Status

On July 15, 1999, the House adopted a slightly modified version of H.R. 1691 , the "Religious Liberty Protection Act" (RLPA), by a vote of 306-118.. Prior to final passage the House rejected an amendment to limit RLPA's application with respect to certain state and local nondiscrimination measures, 190-234. The bill (along with a modified Senate version , S. 2081 ) now awaits action in the Senate. RLPA is part of an ongoing conversation between Congress and the Supreme Court about whether religious practices ought to be given special treatment by government and about Congress' power to...

Presidential Elections in the United States: A Primer

Every four years, Americans elect a President and Vice President, thereby choosing both national leaders and a course of public policy. The system that governs the election of the President combines constitutional and statutory requirements, rules of the national and state political parties, political traditions, and contemporary developments and practices. As initially prescribed by the Constitution, the election of the President was left to electors chosen by the states. Final authority for selecting the President still rests with the electoral college, which comprises electors from...

Victims' Rights Amendment: Background & Issues Associated With Proposals to Amend the United States Constitution

Thirty-three states have added a victims' rights amendment to their state constitutions. Similar proposals have been made to amend the United States Constitution, including S.J. Res. 3 and H.J. Res. 64 in this Congress. Proponents claim an amendment is necessary to balance the rights of victims with those afforded the accused in the criminal justice system, to make protection of victims' rights and remedies uniformly available, and to replace inadequate enforcement mechanisms. Opponents claim an amendment would flood the courts with litigation, would undermine the rights of the...

The Pendulum Swings Back: Standing Doctrine After Friends of the Earth v. Laidlaw

On January 12, 2000, the Supreme Court held in Friends of the Earth v. Laidlaw that plaintiffs had standing to pursue a Clean Water Act citizen suit, despite the fact that (1) the company-defendant had achieved compliance prior to the district court's decision, (2) plaintiffs sought only civil penalties payable to the U.S. Treasury, and (3) plaintiffs had demonstrated only reasonable concern, not physical injury to the environment. In so holding, the Court appeared to retrench substantially from its environmental standing decisions of the 1990s, which had all gone against plaintiffs. In...

Electricity Restructuring and the Constitutionality of Retail Reciprocity Requirements

Retail reciprocity requirements have been included in the electricity restructuring legislation of at least four states. These requirements mandate generally that out-of-state utilities which operate in a state "closed" to retail competition cannot market power to retail consumers in the "open" state. Because state reciprocity requirements enacted without congressional authorization are probably unconstitutional under the Commerce Clause of the U.S. Constitution, Congress would have to include a reciprocity provision in federal electricity restructuring legislation if it wants to support...

Constitutional Aspects of Qui Tam Actions: Background and Analysis of Issues in Vermont Agency of Natural Resources v. United States ex rel. Stevens

The False Claims Act (FCA), originally enacted in 1863, serves as an important mechanism by which fraud against the federal government is combated. The Act authorizes both the Attorney General and private persons to bring civil actions for its enforcement. Under the terms of the Act, a private individual, known as a relator, may bring such an action on behalf of him or herself, and for the United States Government. These actions are known as qui tam suits, and their use dates back to the Thirteenth Century in England as well as the earliest days of the United States. The vast majority of...

Court Rulings During 1998 on Constitutional Takings Claims Against the United States

In light of congressional activity on property rights bills during 1998, CRS extends its practice of compiling reported court decisions, involving federal actions and/or federal statutes, that resolved Fifth Amendment "property rights takings" challenges on the merits. Decisions in 1998 meeting this criteria numbered 33, of which three found a taking. The federal programs implicated in this year's decisions echo the broad diversity of such programs customarily involved in takings litigation against the United States. Areas generating multiple takings decisions in 1998 were...

Mandatory Student Fees and the First Amendment: Background and Analysis of Issues in Southworth v. Grebe

The First Amendment to the Constitution of the United States provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridge the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." The Supreme Court of the United States has established that the First Amendment's free speech guarantee contains, as necessary corollaries, the right not to speak, and the right not to be compelled to support the speech of others. Based on these...

Search and Seizure in the Vehicular Context: Fourth Amendment Issues

The Fourth Amendment to the Constitution of the United States provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Supreme Court has interpreted this language as imposing a presumptive warrant requirement on all searches and seizures predicated upon governmental authority, and has ruled that any...

Federal Mandatory Minimum Sentencing Statutes: Introductory Comments to a List with Captions

Federal mandatory minimum sentencing statutes (mandatory minimums) demand that execution or incarceration follow criminal conviction. They cover drug dealing, murdering federal officials, and using a gun to commit a federal crime. They circumscribe judicial sentencing discretion, although they impose no limitations upon prosecutorial discretion or upon the President's power to pardon. They have been criticized as unthinkingly harsh and incompatible with a rational sentencing guideline system; yet they have also been embraced as hallmarks of truth in sentencing and a certain means of...

Judicial Rulings on the War Power

Federal Mandatory Minimum Sentencing Statutes: A List of Citations with Captions, Introductory Comments, and Bibliography

Federal mandatory minimum sentencing statutes (mandatory minimums) demand that execution or incarceration follow criminal conviction. They cover drug dealing, murdering federal officials, and using a gun to commit a federal crime. They circumscribe judicial sentencing discretion, although they impose no limitations upon prosecutorial discretion or upon the President's power to pardon. They have been criticized as unthinkingly harsh and incompatible with a rational sentencing guideline system; yet they have also been embraced as hallmarks of truth in sentencing and a certain means of...

The Separation of Powers Doctrine: An Overview of its Rationale and Application

As delineated in the Constitution, the separation of powers doctrine represents the belief that government consists of three basic and distinct functions, each of which must be exercised by a different branch of government, so as to avoid the arbitrary exercise of power by any single ruling body. This concept was directly espoused in the writings of Montesquieu, who declared that "when the executive and the legislature are united in a single person or in a single body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws...

Commerce Clause Issues in Brzonkala v. Virginia Polytechnic Institute and State University

In Brzonkala v. Virginia Polytechnic Institute and State University , an en banc Court of Appeals for the Fourth Circuit considered the constitutionality of 42 U.S.C. ¿13981, which creates a federal cause of action against any person who commits a crime of violence motivated by gender animus. Analyzing ¿13981 according to the framework delineated in Lopez v. United States , the Fourth Circuit determined that gender motivated violence is not a commercial activity and is not substantially connected to interstate commerce, rendering the statute invalid under the Commerce Clause.

Military Interventions by U.S. Forces from Vietnam to Bosnia: Background, Outcomes, and "Lessons Learned" for Kosovo

The congressional debate on Kosovo has raised interest in previous cases where the United States military has intervened in other countries. Of these, nine are cited as providing some type of lesson or precedent for future action. In eight of these, the U.S. military used force: Vietnam, Lebanon, Grenada, Panama, Iraq, Somalia, Haiti, and Bosnia. In the ninth, Rwanda, the United States undertook a humanitarian mission. The numbers, purposes, circumstances and results of these interventions varied greatly. They have involved numbers of U.S. military personnel ranging, at peak, from about...

Capital Punishment: Summary of Supreme Court Decisions During the 1997-98 Term

In 1972, the U.S. Supreme Court found the death penalty as written in various state laws to be "arbitrary and capricious". Therefore, the Court found it to be unconstitutional under the Eighth and Fourteenth Amendments and subsequently, executions throughout the states were stopped. Shortly after that, states began to rewrite their capital-crime laws using the new guidelines promulgated by the Court and capital punishment was resumed in the United States. None of the cases decided during the last term (1997-98) are likely to be remembered as landmark decisions which will...

State Regulation of the Initiative Process: Background and Analysis of Issues in Buckley v. American Constitutional Law Foundation, Inc., et al.

From its inception, the United States has fostered and encouraged unfettered discussion and debate regarding political issues facing the nation. Indeed, the First Amendment affords the greatest protection to political expression, to assure the free interchange of ideas. Coupled with this respect for free speech and political expression, though, is the sometimes contrary notion that states possess authority to regulate the electoral process in order to avoid campaign related disorder. Due to the increased popularity of the use of ballot initiatives and referendums as a tool for political...

The Religious Freedom Restoration Act: Its Rise, Fall, and Current Status

In City of Boerne, Texas v. Flores (1) the Supreme Court on June 25, 1997, held the "Religious Freedom Restoration Act" (RFRA) to be unconstitutional as applied to the states. Congress enacted RFRA in 1993 in response to an earlier Supreme Court decision -- Employment Division, Oregon Department of Human Resources v. Smith (2) -- which had construed the free exercise clause of the First Amendment to prohibit only government action which intentionally burdens the exercise of religion. In RFRA Congress sought to broaden the legal protection afforded religious exercise...

State Regulation of the Initiative Process: Buckley v. American Constitutional Law Foundation, Inc., et al.

While the authority to regulate political expression is sharply circumscribed by the Constitution, states traditionally have been granted significant leeway in regulating the electoral process for the sake of efficiency and veracity. Due to an increase in state attempts to regulate petition initiatives, these two divergent bodies of law have given rise to a great deal of confusion as to the point at which state regulation of the electoral process becomes violative of First Amendment freedoms. The Supreme Court addressed this conflict recently in Buckley v. American Constitutional...

Standard of Proof in Senate Impeachment Proceedings

The Constitution gives the United States Senate the responsibility for trying impeachments, but does not address the standard of proof that is to be used in such trials. This report concludes that an examination of the constitutional language, history, and the work of legal scholars provides no definitive answer to the question of what standard is to be applied. In the final analysis the question is one which historically has been answered by individual Senators guided by their own consciences.

Sampling for Census 2000: A Legal Overview

Sampling and statistical adjustment of the decennial population census taken for the purpose of apportioning the Representatives in Congress among the States, have become increasingly controversial during the past two decades and have culminated in two lawsuits concerning the legality and constitutionality of sampling, Department of Commerce v. U.S. House of Representatives and Clinton v. Glavin , which were heard by the U.S. Supreme Court in consolidated oral arguments on Nov. 30, 1998. The Supreme Court took the case on a direct appeal from the decisions by two three-judge district...

Censure of the President by the Congress

There is no express constitutional provision which authorizes Congress to "censure" the President or any other executive branch official. A censure of the President does not appear to be, and has not traditionally been, part of the impeachment process, which involves an impeachment in the House and a trial and conviction in the Senate. A censure of the President is clearly not part of Congress' express authority to "punish" its own Members (Article I, Section 5, clause 2), nor would it be in most cases within the inherent contempt powers of legislatures to protect the dignity, privileges...

School Prayer: The Congressional Response, 1962 - 1998

For at least a century and a half the issue of school prayer has periodically convulsed the body politic. But only in recent times -- since 1962 when the Supreme Court in Engel v. Vitale held government sponsorship of devotional activities in the public schools to be unconstitutional -- has Congress become persistently involved. Since that decision Congress has considered a variety of measures to promote or permit devotional activities in the public schools: (1) Constitutional amendments -- Numerous proposals have been introduced in every Congress since Engel to overturn or limit...

The "Son of Sam" Case: Legislative Implications

In Simon & Schuster, Inc. v. Members of the new York State Crime Victims Board, the U.S. Supreme Court held that New York State's "Son of Sam" law was inconsistent with the First Amendment's guarantee of freedom of speech and press. This report examines the Supreme Court decision and then considers whether its rationale renders the federal law unconstitutional. Concluding that it likely does, the report considers whether it would be possible to enact a constitutional Son-of-Sam statute. Finally, the report takes note of some state Son-of-Sam statutes that have been enacted since the...

Impeachment Grounds: Part I: Pre-Constitutional Convention Materials

This is a collection of selected background materials pertinent to the issue of what constitutes impeachable misconduct for purposes of Article II, section 4 of the United States Constitution quoted below. It includes excerpts from Blackstone, Wooddeson, and the impeachment clauses in pre- Constitutional Convention state constitutions. It is the first of six segments that together with footnotes comprise, Impeachment Grounds: A Collection of Selected Materials, CRS Report 98-882(pdf) . The President, Vice President and all Civil Officers of the United States, shall be...

Impeachment Grounds: Part 2: Selected Constitutional Convention Materials

This is a collection of selected background materials pertinent to the issue of what constitutes impeachable misconduct for purposes of Article II, section 4 of the United States Constitution quoted below. It includes excerpts from the notes of the debates at the Constitutional Convention in Philadelphia in 1787 and from a few of the state ratifying conventions. It is the second of six segments that together with footnotes comprise, Impeachment Grounds: A Collection of Selected Materials, CRS Report 98-882(pdf) . The President, Vice President and all Civil Officers of the United...

Impeachment Grounds: A Collection of Selected Materials

This is a sampling of the material available on the question of what constitutes impeachable conduct for purposes of Article II, section 4 of the United States Constitution. It is arranged in chronological segments. The first covers those materials available on impeachment at the time the Constitution was drafted, Blackstone's Commentaries, Wooddeson's Lectures, and the impeachment clauses of the state constitutions. The second consists of the debates at the Constitutional Convention and the state ratifying conventions. The third includes explanations from those who participated in the...

Fast-Track Trade Negotiating Authority: A Comparison of 105th Congress Legislative Proposals

This report provides a side-by-side comparison of H.R. 2621 and S. 2400 , as reported, 105th Congress bills that would provide the President with trade negotiating authority and accord certain resulting agreements and implementing bills expedited -- or "fast-track" -- legislative consideration. In September 1997 the President requested that a new fast-track statute be enacted, given that authorities in the Omnibus Trade and Competitiveness Act of 1988 (OTCA) had expired. OTCA provisions were last used to approve and implement the GATT Uruguay Round agreements. H.R. 2621 was reported...

Fossils on Federal Lands: Current Federal Laws and Regulations

Recent articles in the press have highlighted the issue of unauthorized removal of fossils and other paleontological materials from federal lands. Fossils can be highly valuable in the scientific sense, but increasingly there also is a lucrative market for fossils that fuels their unauthorized collection and removal. Improper excavation can impair or destroy the value of the resources for scientific analysis. On many of the federal lands, particularly in the West, scarce personnel may be responsible for vast acreage, a fact that can make protection of fossil and other resources difficult....

Census 2000: Sampling as an Appropriations Issue in the 105th Congress

The 105th Congress has debated the decennial census sampling issue mainly in the appropriations process, beginning with FY1997 supplemental appropriations legislation for disaster relief. In FY1998 appropriations for Commerce, Justice, and State, the Judiciary, and Related Agencies (CJS), the Senate (S. 1022) instructed the Bureau of the Census not to make “irreversible” Census 2000 sampling plans, while the House (H.R. 2267) sought a moratorium on these plans, pending expedited judicial review of their constitutionality and legality.

Line Item Veto Act Unconstitutional:

Line Item Veto Act Unconstitutional: Clinton v. City of New York

On June 25, 1998, the United States Supreme Court in Clinton, et al. v. C ity of New York, et al., held that the Line Item Veto Act, violated the Presentment Clause of the Constitution. The Clause requires that every bill which has passed the House and Senate before becoming law must be presented to the President for approval or veto, but is silent on whether the President may amend or repeal provisions of bills that have passed the House and Senate in identical form. The Court interpreted silence on this issue as equivalent to an express prohibition. The Court concluded that the Line...

A Balanced Budget Constitutional Amendment: Procedural Issues and Legislative History

One of the most persistent political issues of recent years has been the federal budget of the United States and its deficit. Since the 1930s, dozens of proposals have called for laws or constitutional amendments that would require a balanced budget and/or limit the size or growth of the federal budget or of the public debt. The accumulation of large deficits since the 1970s has heightened the feeling of some policymakers and other observers that the Constitution should be amended to require the federal government to balance revenues and expenditures. The chief debate has been on the...

Failure to Report Transport of Currency Out of the Country: Forfeiture of Currency in United States v. Bajakajian Constitutes a Violation of the Excessive Fines Clause

On July 8, 1994, the grand jury in United States v. Bajakajian
(1) returned a three count indictment against the defendant. One charged the defendant with violation of 31 U.S.C. ¿¿ 5316(a)(1)(A) and 5322(a) for transporting currency of more than $10,000 outside of the United States without filing a report with the United States Customs Service. The second count charged the defendant with making a false material statement to the United States Customs Service in violation of 18 U.S.C. ¿ 1001. The third sought the forfeiture of the $357,144.00 discovered by the Customs Service under 18...

Education Vouchers: The Constitutional Standards

The Court’s decisions permit a limited degree of public aid to be provided directly and a broader range of assistance indirectly. This report sketches the constitutional standards that apply to public aid to sectarian schools and especially to programs of indirect assistance such as education vouchers. It also summarizes recent significant state court decisions involving vouchers.

Tobacco Marketing and Advertising Restrictions in S. 1415, 105th Congress: First Amendment Issues

This report considers whether the restrictions on tobacco marketing and advertising in Section Section 122-123 of S. 1415 , 105th Congress, as reported by the Senate Committee on Commerce, would, in general, violate the First Amendment's guarantee of freedom of speech. These sections would prohibit, among others, the following forms of tobacco advertising and labeling: (1) advertising or labeling with a human or animal image or cartoon character, (2) outdoor advertising, including advertising in enclosed stadia, (3) advertising without a disclaimer that words such as "light" or "low...

Legislative Powers of Congress: A Brief Reference Guide

A House rule now requires that committee reports identify the constitutional source of power to enact the reported bill. This report is designed to assist in identification of Congress' legislative powers. It lists legislative powers, sets forth the constitutional text for each power, and provides brief commentary. Powers are grouped in the following broad subject matter categories: power to tax and spend, commercial powers, citizenship, civil rights and voting rights, elections, property and territory, war and related powers, federal-state relations, and checks on other branches....

Lying to Congress: The False Statements Accountability Act of 1996

The False Statements Accountability Act of 1996, among other things, amends the federal code to specify its applicability to the executive, legislative, and judicial branches of government prohibiting anyone from knowingly and willfully making misrepresentations to these three branches, and by making it clear that one can corruptly obstruct Congressional proceedings personally as well as by influencing another person. The Act overcomes judicial decisions that had eroded the protection of Congress against false statements and other corrupt interference while acting within the performance of...

The Law of Church and State: The Proposed Religious Freedom Amendment, H.J.Res. 78

On March 4, 1998, the House Judiciary Committee voted to report H.J.Res. 78 , the "Religious Freedom Amendment," to the House. The proposal is the latest in a long chain of constitutional amendments that have been introduced since the Supreme Court's school prayer decisions of Engel v. Vitale (1) and Abington School District v. Schempp. (2) But this is the first time a constitutional amendment concerning church and state has been ordered reported by a House committee. The scope and effect of H.J.Res. 78 are also considerably broader than the school prayer issue that has been...

Ban on Use of Polygraph Evidence Does Not Amount to Abridgement of Military Defendant's Right to Present a Defense

Military Rule of Evidence 707 excludes polygraph evidence in military trials. The Supreme Court on March 31,1998, upheld the ban, holding that it did not violate the Sixth Amendment rights of defendants. The Court also said that the military ban on the use of such evidence "...does not unconstitutionally abridge the right to present a defense."

Tobacco Litigation: Constitutional Issues Raised by Proposed Federal Legislation to Cap Attorneys' Fees

Proposals have been made for Congress to enact a law placing a cap on the fees that states could pay attorneys they have retained to pursue litigation against tobacco companies to recover tobacco- related medicaid expenditures or other causes of action. Such caps would apply to existing contracts. Consideration of a law imposing such caps has raised several constitutional issues, which we address in this memorandum. The four issues involve: (1) Congress's commerce power, (2) due process, (3) the takings clause, and (4) federalism. When considering the constitutionality of any federal...

Tobacco Advertising: The Constitutionality of Limiting its Tax Deductibility

Under the Internal Revenue Code, advertising is ordinarily deductible as a business expense. 26 U.S.C. ¿ 162. It has been proposed, however, that the deductibility of the cost of advertising tobacco products be limited or eliminated. Since advertising is a form of speech, this raises the question of whether such a limitation would violate the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." We conclude that it apparently would not. As advertising is commercial speech, it is not entitled to the same level...

NAFTA Binational Panel System: Second Constitutional Suit Dismissed

Chapter 19 of the NAFTA allows parties to antidumping and countervailing duty proceedings to seek binational panel review of final agency determinations in lieu of judicial review in the country in which the determination was made. Some have argued that the process violates the Appointments Clause of the U.S. Constitution and possesses other constitutional defects. Federal law allows suits challenging the constitutionality of Chapter 19 panels, but these may only be brought by parties to a panel proceeding. The U.S. Court of Appeals for the District of Columbia Circuit recently dismissed a...

Fast Track for Trade Agreements: Procedural Controls for Congress and Proposed Alternatives

This report discusses the fast track trade procedures in the Trade Act of 1974 operate as procedural rules of the House and Senate, and the statute itself declares them to be enacted as an exercise of the constitutional authority of each house to determine its own rules. These procedures prevent Congress from altering an implementing bill or declining to act, but permit it to enact or reject the bill. By these means Congress retains authority to legislate in the areas covered, yet affords the President conditions for effective negotiation.

Internet Indecency: The Supreme Court Decision on the Communications Decency Act

In Reno v. American Civil Liberties Union , No. 96-511 (June 26, 1997), the Supreme Court, by a 7-2 vote, declared unconstitutional two provisions of the Communications Decency Act (CDA) that prohibited indecent communications to minors on the Internet. The CDA is Title V of the Telecommunications Act of 1996, P.L. 104-104 . Section 502 of the Act rewrote 47 U.S.C. Section 223(a) and added subsections (d) through (h) to 47 U.S.C. Section 223. It did not amend subsections (b) or (c), which restrict commercial dial-a-porn services. In Reno v. ACLU , the Supreme Court struck down Section...

NATO Enlargement: The Process and Allied Views

In December 1996, NATO countries expressed the intention to name one or more candidate states for membership at the alliance summit in Madrid on July 8-9, 1997. Designation of candidates would be the first significant step in the process of admitting central European countries. NATO has set a target date of April 1999 for completion of current members' constitutional processes to revise the North Atlantic Treaty to incorporate new members. Expansion of the alliance has triggered a broad debate about NATO's purpose and future. Since the end of the Cold War, NATO's missions have been...

Legal Analysis of Proposals to Make English the Official Language of the United States Government

This document also available in PDF Image . A contemporary political movement to install English as the official language of the United States has continued to gather momentum since Congress in the mid-1980's first held hearings on various proposals to amend the Federal Constitution to achieve that end. Although federal efforts to date have fallen short of their goal, greater success has been achieved in promoting official English laws at the state level. Presently, twenty-one states have laws declaring English to be the official state language. These state laws have usually been...

The U.S. Presidency: Office and Powers

The President of the United States heads the executive branch of the federal government, which is constitutionally equal to the legislative and judicial branches. While somewhat interdependent upon the other two branches, the President is vested with strong appointive, administrative, legislative, fiscal, and international powers. Initially assisted by a personal secretary and a few functionaries to maintain the White House, the President was granted a modest expansion of his immediate staff in 1929. Ten years later, the Executive Office of the President was established, and continues to...

The Marshall Plan: Design, Accomplishments, and Relevance to the Present

Periodically, Members of Congress and others have recommended establishment of a 'Marshall Plan' for Central America, Eastern Europe, the former Soviet Union, and elsewhere. They do so largely because the original Marshall Plan, a program of U.S. assistance to Europe during the period 1948-1951, is considered by many to have been the most effective ever of U.S. foreign aid programs. An effort to prevent the economic deterioration of Europe, expansion of communism, and stagnation of world trade, the Plan sought to stimulate European production, promote adoption of policies leading to...

Presidential Emergency Powers: The So-Called "War Powers Act of 1933"

The "War Powers Act of 1933" is a name given by some members of the militia and patriot movement to emergency banking legislation passed in 1933 five days after President Roosevelt came into office. (1)
The legislation did not, in fact, have the title attributed to it. It has apparently been so labelled by some because the banking legislation amended the "Trading with the Enemy Act of 1917" in order to give legal underpinning to President Roosevelt's efforts to cope with the banking crisis. It is alleged by its modern-day critics that by that amendment the government in effect declared...

"In God We Trust" on the Nation's Coins and Currency and As the National Motto: History and Constitutionality

This document also available in PDF Image . Two federal statutes currently mandate that the phrase "In God We Trust" be inscribed on all U.S. coins and currency. A third statute declares the phrase to be the national motto. All of the statutes have been challenged from time to time on the grounds that they violate that part of the First Amendment which provides that "Congress shall make no law respecting an establishment of religion ...." But notwithstanding the religious affirmation embodied in the phrase, no court has held these practices to violate the establishment clause. Three...

Homosexuality and the Federal Constitution: A Legal Analysis of the U.S. Supreme Court Ruling in Romer v. Evans

This document also available in PDF Image . The U.S. Supreme Court this term in Romer v. Evans , decided 6 to 3 that the State of Colorado violated the right of lesbians and homosexuals to Equal Protection of the Laws when it adopted, by voter referendum, Amendment 2 to the State Constitution. That amendment rescinded various state and local laws prohibiting discrimination on the basis of "homosexual, lesbian or bisexual orientation" and barred the statutory enactment of any such civil rights protection in the future. Justice Kennedy's majority opinion affirmed the judgment but not...

War Powers Resolution: A Brief Summary of Pro and Con Arguments

The War Powers Resolution, Public Law 93-148, was enacted by Congress over the veto of President Nixon on November 7, 1973. Through more than twenty-two years of experience, the resolution has remained a focus of controversy on the war powers of the President and Congress under the Constitution. (1) Major areas of controversy include the constitutionality of some provisions, the proper roles for the President and Congress in entering armed conflicts, the effect on U.S. military operations, and the effectiveness of the resolution in achieving its purpose of assuring that the collective...

The Assault Weapons Ban: Review of Federal Laws Controlling Possessions of Certain Firearms

This report reviews the 1994 assault weapons ban, which is effective for ten years on 19 types of semiautomatic assault weapons. The Act builds upon a 60-year history of federal regulation of firearms. The report also summarizes the pre-1994 federal gun control laws, analyzes the major cases relating to constitutional and statutory challenges to these laws, and reviews judicial and legislative developments since enactment of the ban.

The Brady Handgun Control Act: Constitutional Issues

The Brady Handgun Control Act established a five-day waiting period for handgun purchases, during which local law enforcement can make reasonable efforts to conduct background checks in available records and block and sales to convicted felons and other disqualified persons. This report reviews the background of federal gun control legislation, analyzes the conflict in the courts over the constitutionality under the Tenth Amendment of the duties placed on local law enforcement, and considers the implications of the decisions for Brady Act enforcement.

The Unconstitutionality of State Congressional Term Limits: An Overview of U.S. Term Limits, Inc. v. Thornton (Sup. Ct. Doc. No. 93-1456)

On May 22, 1995, the U.S. Supreme Court in U.S. Term Limits, Inc. v. Thornton (Sup. Ct. Doc. No. 93-1456) in a 5-4 decision held that Arkansas' constitutional amendment, Section 3 of Amendment 73, providing for limitations on congressional terms of office was unconstitutional in that it established an additional qualification for congressional office in violation of Article I, Sections 2 and 3 setting forth the three basic qualifications of age, citizenship and inhabitancy for Members of Congress. The Court affirmed the 1994 decision of the Arkansas Supreme Court which had ruled that...

Haiti: Efforts to Restore President Aristide, 1991-1994

The overthrow of Haiti's first democratically elected president in September 1991 propelled Haiti into its worst crisis since protests brought down the 29-year dictatorship of the Duvalier family in 1986. The leaders of the coup faced stronger international sanctions than did previous coup leaders in Haiti, largely because a democratic government was overthrown. For more than three years, the regime resisted international demands that President Jean-Bertrand Aristide be restored to office. U.S. policy consisted of pressuring the de facto Haitian government to restore constitutional...

Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry

This report provides an overview of some of the more common legal, procedural, and practical issues, questions and problems that committees have faced in the courts of an oversight investigation.

Federal Gun Control Laws: The Second Amendment and Other Constitutional Issues

This report examines the historical, legal, and constitutional arguments for and against an individual right to bear firearms under the Second Amendment of the Constitution. Those who favor federal gun control laws tend to assert that the Second Amendment has been correctly interpreted by the courts to confer only a collective right, which may be exercised through state militias. Those who oppose gun control laws tend to assert that the Second Amendment should be interpreted to grant an individual right to bear arms for lawful purposes, subject to appropriately minimal restrictions.

Legislative Prayer and School Prayer: The Constitutional Difference

The Supreme Court has held government-sponsored prayer in the public schools to violate the establishment of religion clause of the First Amendment. In contrast, it has held clergy-led prayer in legislative assemblies such as the Congress and the State legislatures to be constitutionally permitted. Because both situations involve government sponsorship of prayer, these rulings are sometimes said to be contradictory. The Court, however, has drawn significant factual and legal distinctions between the two situations. Nonetheless, it remains true that the contrary decisions reflect different...

The Endangered Species Act and Private Property: A Legal Primer

If the 103rd Congress embarks upon an effort to reauthorize the Endangered Species Act (ESA), it will run into an old acquaintance: the property rights issue. As now written, the ESA has at least the potential to curtail property rights (whatever its actual impact as implemented may be). This report explores the legal repercussions of those impacts, especially whether they constitute takings of property under the fifth amendment of the U.S. Constitution. The first type of possible impact occurs when the ESA directly bars an activity on private land because it might adversely affect an...

Enforcement of Environmental Laws at Federal Facilities: Legal Issues

In recent years, EPA and State enforce have stepped up efforts to force compliance by Federal facilities with environmental laws. Such efforts raise delicate issues in the case of EPA as to when one Federal agency can coerce another, and in the case of States as to the balance of power between States and the United States.

Almost all the major Federal environmental statutes contain "Federal facilities provisions" stating unequivocally that Federal facilities are subject to Federal, State, and local environmental requirements just as nongovernmental entities. The issue, then, has not...

The Balanced Budget Proposal: Some Macroeconomic Implications

This brief report outlines some possible macroeconomic implications of observing a statutory or constitutional commitment to balance the Federal budget. It does not address the legal questions about the proposal or their implementation, nor the economic and political questions related to decisions about the level of Federal revenues or expenditures. On the latter, its analysis refers to revenue and expenditure levels, in relation to total national product, typical of recent years.

Constitutional Conventions: Political and Legal Questions

This report discusses the applications that have been passed by 32 of the necessary 34 State legislatures to convene a convention to propose an amendment prohibiting abortion. Because this process for amending the Constitution has never been used, several unresolved legal and policy questions arise governing the convening and the authority of such a convention.

Nuclear Freeze: Arms Control Proposals

Balancing the Budget and Limiting Federal Spending: A Selected Bibliography

This selected bibliography lists articles and books on various issues concerning legislation to limit Federal spending and proposed constitutional amendments requiring a balanced budget, especially economic issues. The bibliography focuses mainly on literature of recent years.

Federal and State Authority to Regulate Radioactive Waste Disposal and Transportation

There appears to be a growing controversy concerning whether a state has the authority to prevent the federal government from disposing of nuclear wastes within it and transporting nuclear wastes through it. Several states have statutes purporting to veto the federal government's action in these areas. This report investigates whether these state statutes may be unconstitutional and preempted by federal statutes and regulations.

Abortion: Judicial and Legislative Control

In 1973 the U.S. Supreme Court held that the Constitution protects a

woman's decision whether or not to terminate her pregnancy, Roe v. Wade, 410 U.S. 113, and that a State may not unduly burden the exercise of that fundamental right by regulations that prohibit or substantially limit access to the means of effectuating that decision, Doe v. Bolton, 410 U.S. 179. But rather than settling the issue, the Court's rulings have kindled heated debate and precipitated a variety of governmental actions at the national, State and local levels designed either to nullify the rulings or hinder...

Balanced Budget and Spending Limitations: Proposed Constitutional Amendments in the 97th Congress

Expenditures and revenue limitation proposals link Federal spending and taxation to some measure of economic performance, such as the rate of economic growth or percentage levels of GNP or national income. The report presents this issue brief reviews, the various approaches to balance the budget and to impose spending limitations offered as constitutional amendments’ in the 97 congress.

Foreign Ownership of Property in the United States: Federal and State Restrictions

This report examines various legal issues raised by Federal and State laws restricting foreign ownership in U. S. property. The report examines the constitutional barriers to Federal and State laws restricting such ownership, and the possible constitutional predicates for Federal legislation regulating foreign ownership of property in the united States. The impact of treaties to which the United States is a party on both Federal and State restrictions on the rights of foreign persons to own U.S. property is also discussed.

The Constitutionality of the Withdrawal of All Federal Court Jurisdiction Over Questions Involving State-Sponsored Prayer in Public Schools and Public Buildings

This report discusses several court decisions regarding the constitutionality of the withdrawal of all Federal Court Jurisdiction over questions involving state-sponsored prayer in Public Schools and Public Buildings.