US Politics - Civil Rights Flashcards

Question

Civil Rights Case Study - Obama's immigration reforms

Answer 1

- 21 November 2014 - Obama announced plans to overhaul America’s immigration system using Executive Order. - The plans have proven to be extremely controversial, with Republicans claiming that the President is undermining the US Constitution. - The reforms allowed undocumented immigrants to apply for work permits, meaning they could legally work in America. - There are around 11 million undocumented immigrants in the US, and many of them working illegally in Labour jobs, paid cash for work and not paying any taxes. - To qualify for a permit, individuals must have been living in America for at least five years, and must have a child who was born in America or have a US citizenship. - As anyone born in America is automatically given US citizenship, it has led to situation where children who were citizens had parents at risk of deportation. - It is estimated that around 3.7 million people would have qualified for this new scheme. - - They will have to pass background checks, begin paying taxes, and reapply after three years, but they will be able to work legally without fears of being deported. - In a televised speech, Obama said that these reforms would allow people to ‘come out the shadows and get right with the law’. - The reforms also expanded the Deferred Action for Childhood Arrivals programme established by executive order in 2012. Obama wanted to focus on deporting violent criminals rather than people who had been brought into the country illegal. - It didn’t change the legal status of these immigrants, but gave them security from targeting by federal agencies.

Answer 2

- One major problem was that the Executive Orders surround immigration that were set out by Obama did not set out a clear path to citizenship due to the fact that there were no changes to the legal status of the so-called ‘dreamers’. - As well as this, due to it being an Executive Order and not an act passed by Congress, a succeeding President could come in and essentially withdraw this order with a following Executive Order, which became a key part of the campaign Trump used to win the 2016 election. - The problem that came with Obama issuing the Executive Order surrounding immigration was the idea that he did not have the power to enforce policies surrounding these areas, with the idea that they lied within Congress. - As well as this there is no specific mention of the powers of the President to be able to issue executive orders, but it is an implied power in Article II of the Constitution.

Answer 3

Obama: - Obama believed not only that he had the constitutional right to enforce these changes, but the political power to as well. - He believed that it was well within his powers as President to be able to enforce these constitutional changes, according to Article II. - He also believed he was given the mandate to be able to enforce these changes by the people of America as well as his party. Republicans: - Republicans believed that Obama had undermined the separation of powers established by the US Constitution, and that this was within the powers dedicated to Congress. - They believed that this has shown a sign of Obama being considered an ‘Imperial President’. This was directly contradicted by the number of Executive Orders that Obama issued during his time as President with 193 orders in 6 years, a relatively low rate for a President.

Answer 4

- Altogether, this clearly demonstrates the controversy surrounding Executive Orders, which were set out by Article II of the Constitution. There was the argument that it had directly threatened the separation of powers. - Following Obama’s call to make these laws an entrenched Congress backed bill, a Democrat Senator Charles Schumer introduced it as a bill to Congress. - It was backed by the ‘gang of eight’, a group of bipartisan senators to make sure the bill was approved on both parties’ terms. It was passed on the 27th of June 2013, termed the Border Security, Economic Opportunity and Immigration Modernization Bill through the Senate but was never considered in the House of Representatives.

Answer 5

- Supreme Court has ruled that spending money in a political context counts as free speech - Allows for public criticism of the government without threat of criminal sentencing - there is no respect in free speech - It also protects you from the government trying to infringe on your speech rights - if you work for private companies however, you are unable to claim freedom of speech rights if you are fired for hate speech etc - Different protections - preferred position; any law or regulation that stops freedom of speech is always struck down by courts - Brandenburg v Ohio - KKK speech in 1968, argued that because the speech was political it was protected - you can say what you want, as long as it doesn’t incite a riot (Trump - Capitol Riots, interference with electoral process he is not protected by the 1st amendment because his advocacy came to fruition) - Constitutional freedom of speech do not permit a state to forbid or proscribe advocacy of the use of force - you can advocate for what you want, but you cannot actually produce what you advocate e.g. overthrowing the government - US v Schenck 1917 - pamphlets urging people to not join the war draft, going against the Espionage Act which stated people cannot interfere with the effort - Supreme Court decided that the government can interpret the speech how they like; the first amendment does not protect speech that can create danger - Symbolic speech - wearing armbands, carrying signs or wearing jackets and burning the American flag - protected as political speech - Hate speech is also protected - burning a cross on a person’s lawn can be prosecuted elsewhere, and discipline codes are struck down - Commercial speech is protected if it involves politics and money spending in campaigns is also considered commercial speech - Fightin’ words - Chaplinsky v New Hampshire (1942); court ruled that some words are so insulting they may result in a fight; if your insults result in a fight, it is violence and are not protected - protects anarchy by preventing a reaction that will not be defended by the free speech amendment - This exception is rarely used - It only protects you from government criticism, not private persons - Pickering v Board of Education; complained about budgeting and he was fired and claimed that the speech was protected because it was political and aimed at local governments, which only worked as he was employed by the government

Answer 6

- Establishment clause - cannot create an official state church or ban religious buildings - ensures the US has not state endorsed religion and doesn’t write any laws based on any religious background / edicts - Free exercise clause - you cannot be prohibited from being part of any religion, but not all religious practice is okay, such as human sacrifices - Lemon v Kurtzman (1971) - public money; taxpayer funds were being used to fund religious schools - Supreme Court devised a three prong test to see if the state law violates the First Amendment freedom of religion; under the first prong, the court assessed whether the law has a secular legislative process (if the law is meant to educate children), second prong states if the law neither inhibits or enhances religion - religious teachers using educational , third prong does not cause entanglement between religion and state - Pennsylvnia and Rhode Island got in trouble on the third prong for the forcing of religious practice and had ⅔ of their teachers as nuns - the restrictions needed would create entanglements between the state and religion (too much state power) - This meant the secular purpose of educating children would be made more difficult, and is paternalistic as kids cannot block out religious imagery - Engel v Vitale - prayer in schools violate religious freedom - precedent that now uses the Lemon prong test; silence in schools for prayer is not a secular purpose, but providing calm is, and so these laws are more protected - Lemon test attempts to set up a way to analyse religion and government entanglement (Bright-Line Rule)

Answer 7

- Affirmative Action is a government or private program designed to redress historic injustices against specific groups by making special efforts to provide members of these groups with access to educational and employment opportunities - it exists to correct discrimination - Key principle - is that it provides special access to opportunities, usually in education and employment to members of groups that have been discriminated against - Controversy - access or opportunity; Americans usually prefer equality of opportunity to equality of outcome, and as employment and education are often seen as the most vital parts of society, and so affirmative action is usually focused in equalising opportunity in these sectors - In order to increase access to education and job opportunities for members of groups that are historically discriminated against, affirmative action programs try to ensure that they get extra special access to jobs and schools which, to many people, is not equality of opportunity - Justices often describe it as putting a thumb on the scale to outline the added benefits that affirmative action provides - Started with LBJ stating that laws should be created to ensure equal employment for individuals of minority groups but the first case at the Supreme Court over university education Regents of the University of California v Bakke in 1973; the court ruled on the issue of racial set-asides or quotas in admissions at the University of California Davis, a medical school - of the 100 slots available, 16 were set aside for racial minorities and Bakke claimed that this meant some people who were less qualified got in based on their ethnicity where he didn't because he was white - Ruled in his favour by stating that racial quotas are not allowed since they don’t provide equal opportunity but affirmative action programs were allowed if they served a compelling government interest and were narrowly tailored to meet this interest - if they passed the test of strict scrutiny - The SC stated that a compelling government interest does not include the idea of righting historical wrongs was something that the government should undertake because it opens many historical issue, such as who decides when a wrong has been addressed - A compelling government interest is however trying for diversity in admissions processes

Answer 8

- 1970s - high tide of Affirmative Action, with courts using strict scrutiny on most affirmative action cases since then; Adarand v Constructors Inc., dealt with the contracting of workers based on ethnicity - in most of the cases, the court strikes down affirmative action provisions because they fail one or another of the strict scrutiny tests but the basic idea that universities can create programs to build and maintain a diverse student body has been upheld - Gratz v Bollinger (2003) - court ruled that Michigan’s undergraduate admissions policy that awarded those of ethnic minorities extra points was unconstitutional as it was not narrowly tailored to the student body - the idea is constitutional, but the practice may not be - California Civil Rights Initiative - saw the graduation rate among African Americans in some Californian universities went up but in contrast, enrollment declined (California Proposition 209 restricts affirmative action) While the courts have ruled that attempting to correct historical injustices of slavery and Jim Crow laws are not a compelling enough interest to justify affirmative action, but for many they are

Answer 9

- Intermediate scrutiny - more stringent than rational basis review, where the government normally wins and strict scrutiny where the government normally loses - Intermediate scrutiny is often used for cases involving discrimination against women - these groups not protected tend to be groups that have characteristics that cannot be changed, such as ethnicity, whereas gender and religion is open to change - Majority groups have a good chance of winning in the legislative process and so do not need the same protections by the courts - women however, despite being a majority group, are still discriminated against and need more protection - 14th amendment - equal protection under laws, Civil Rights Act 1964; outlawed discrimination based on sex, ethnicity, religion etc in a range of areas including employment - it is unlawful to be fired due to discrimination or to face discrimination due to a characteristics, or limit and segregate employees based on these characteristics - However, if the employer can show that they did it for business reasons not discrimination, then they are not protected - discrimination claims are very difficult to prove - Sexual discrimination - quid pro quo harassment - promotions etc are withheld in exchange for sexual favours, and hostile work environment is the result of all employees, and it refers to making the place safe for all workers - Burlington v Ellerth - Ellerth was subject to unwanted advances by supervisors who made comments about her job being easier if she wore shorter skirts - Women receive legal protections due to increasing presence in the workplace - anti-discrimination laws and intermediate scrutiny help to protect women