Posts Tagged activism
Lately I’ve received a lot of requests for what is essentially “Law School 101” information. Maybe you already know some (or all!) of the information in these posts. Maybe you knew some of the information once upon a time, but have since forgotten it. Maybe the information is completely new to you. Whatever background you bring to these posts, I invite you to read on, and hopefully this body of work will help some people, in some way.
The federal government has three (3) branches: the executive branch, the legislative branch, and the judicial branch. The executive branch consists of the President of the United States (POTUS), his Cabinet, and all offices and agencies falling under the control of those Cabinet members. (Cabinet members include the Secretaries of State, Agriculture, Health and Human Services, Education, Commerce, Labor, Defense, and the Interior.) The Legislature consists of the House of Representatives and the Senate, collectively called Congress. The judicial branch is the Supreme Court of the United States (SCOTUS), the federal courts of appeals (largely based on geographic region), nearly 100 federal district courts (also based on geographic region), and a number of other courts based on substantive matters (such as bankruptcy courts). The interplay between the three branches of government is dictated by the Constitution. Lawyers, politicians, and others working in government or related fields commonly refer to this interplay using terms such as “separation of powers” and “checks and balances.”
So, how do all those people in power get there? A quick review. The President is elected every four (4) years by the Electoral College. The President appoints a Cabinet, who must be confirmed by the Senate. (Ah ha! A check on the President’s power.) Members of the Legislature are elected by the voters. Senators serve terms of six (6) years, with approximately one-third of the Senators up for election every 2 years. Representatives serve terms of two (2) years and seats in the House are up for election every even numbered year. SCOTUS justices are nominated by the President and confirmed by the Senate. Once on the bench, justices have lifetime appointments unless they resign, retire, or are removed through an impeachment process.
Ok, now the people are in power. What exactly are those powers? Here’s an overly simplified explanation. Congress makes statutes by writing bills, voting on the bills, and then sending those bills to the President for a signature making the bill into an official statute. (If the President does not sign the bill, Congress can override that Presidential veto with a certain greater number of votes.) Congress also controls the money and holds the power to declare war. The President is the head of state and the Commander in Chief of the armed forces. As Commander, POTUS can send troops into battle without an official declaration of war from Congress. As the head of state, POTUS can sign bills into law, issue certain Executive Orders, and control the Executive Branch, which executive offices and agencies create and issue regulations that interpret and give greater context to the statutes enacted by Congress. SCOTUS reviews problems with statutes, regulations, other government actions, and various private activity to determine whether anything conflicts with the Constitution, including the Bill of Rights and all subsequent Amendments. If so, the Constitution wins. SCOTUS may also review problems for a number of other reasons, but only if those reasons for review are set out in Article III of the Constitution. You see, SCOTUS is a court of what’s called limited jurisdiction – it can only review cases specifically delegated to it, and the rest are reserved for lower federal or state courts. (By the way, the same thing happens with Congress and POTUS… specific powers are granted to the federal government and the rest are relegated to the states. This is called federalism.)
To get a case before SCOTUS, first you file a petition to be heard. The justices then decide whether or not to grant that petition. Every case filed receives at least this initial review. Most cases are rejected at this point, but a few will go through to a hearing. If the case is granted a hearing, then you know you’ve got an interesting problem. The parties submit briefs to the justices explaining their arguments and points of view. In addition, some “friends of the court,” or amici curiae in Latin, might submit briefs explaining other arguments. Each “friend” brief is commonly called an “amicus” brief. SCOTUS itself decides whether or not any particular amicus brief may be filed.
SCOTUS has nine (9) justices, each appointed by POTUS and confirmed by the Senate. Since these justices cannot be removed except in very rare circumstances and receive a lifetime appointment, those appointments are extremely important in shaping American law. This is particularly true because there really isn’t any check or balance on SCOTUS decisions, except for a subsequent set of SCOTUS justices reversing a prior decision. Reversing prior decisions, however, is rare because of the importance of precedent and the concept of stare decisis.
The stark problems with the nuclear option just exercised by the GOP Senators and Gorsuch’s appointment to the bench should be apparent. Once seated, a SCOTUS justice gets one of only nine votes FOR THE REST OF HIS OR HER LIFE. Further, once that vote is cast, whatever the majority decision is, it’s very likely here to stay. Few moments in American democracy bear comparable need for separation of powers and appropriate checks and balances.
The GOP, however, just eroded that Congressional check on Presidential power to appoint a SCOTUS justice (and I haven’t even mentioned what those same GOP Senators did to Merrick Garland, the person who should be sitting on the SCOTUS bench instead of Gorsuch).
The very fabric of our democracy just ripped like the seat of someone’s pants.
Did you hear it? Do you feel the breeze?
Jodi Jaecks, a breast cancer and double mastectomy survivor, recently won the right to swim topless at Seattle public pools during adult lap swim times. According to media coverage, the general rule about attire at public pools is that all women must wear tops. (I couldn’t find a direct link to actual policy from the Seattle Parks and Recreation Department.) According to a recent press release from Seattle Parks and Recreation, the decision for Jaecks extends only to her, and only for adult lap swim times. At present, any subsequent similar requests will be evaluated on a case-by-case basis.
Of course, additional case-by-case evaluations seem like an inefficient waste of time, money, and other procedural resources. Why should Parks and Recreation require similarly situated people to go through the appeals process to get essentially the same exception to the rule? Maybe they officials realized this problem; additional coverage of the issue suggests that the Parks and Recreation Superintendent is considering a “wholesale” change to the policy governing attire at public pools, and that such a broad spectrum change wouldn’t destroy the “family friendly” pool environment. (Parks and Recreation offered this “family friendly” argument in support of its initial denial of Jaecks’s request.)
Let’s think a bit about what the Superintendent and any committee members should consider when evaluating a wholesale policy change. There has been much chatter in the press about normalizing visions of breast cancer survivors. (Go here and here for a couple of examples.) There’s also the fact that full bathing suits can be quite painful for women living after double mastectomies. But I want to focus on a broader issue that The Stranger touched upon briefly in its early coverage of Jaecks’s story. How does the current policy apply to trans and queer individuals? A post-op trans FTM person might look similar to Jaecks, but would be allowed to swim topless because he’s a he. A pre-op trans FTM also identifies as a he, but has breasts. So Parks and Recreation would force him to wear a bikini top. After all, the current policy requires “gender appropriate swimwear.” And what about a pre-op MTF? In this case, a woman with no breasts… is she forced to go topless to conform to her current gender designation, socially imposed upon her? (Interestingly, that would produce a result directly opposite of that which Jaecks initially received… a woman with no breasts forced to go *with* a top.) How are cross-dressers treated?
In short, what exactly are the officials trying to cover up through the current policy? It seems to reach beyond breasts and nipples. It seems to reach a much broader policy of covering up bodies that do not conform to traditional notions of sex and gender (not to mention bodies that violate conventional ideas of functionality and ability). Especially in a city known nationwide for its queer and trans activism (and apparently one of 2012’s “Gayest Cities”), in a state whose legislature legalized marriage equality, Seattle Parks and Recreation has much to consider here… beyond breasts.