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10 big constitutional moments in 2016

December 30, 2016 by Maggie Baldridge and Chris Calabrese


There were many notable constitutional stories in the past 12 months. Here are some worth remembering.

  1. The death of Antonin Scalia—February 13

The nation lost a Supreme Court giant when Justice Antonin Scalia died of natural causes on this day. He was 79.

A former University of Chicago law professor and United States Court of Appeals for the D.C. Circuit judge, Justice Scalia was appointed to the Supreme Court in 1980 by President Ronald Reagan after the retirement of Chief Justice Warren Burger. He was confirmed by a vote of 98-0. Vice President Joe Biden, then the chair of the Senate Judiciary Committee, would say later that “the vote that I most regret of all 15,000 votes I have cast as a senator” was “to confirm Judge Scalia.” Why? “Because he was so effective.”

Justice Scalia was one of the most outspoken proponents of “originalism.” That approach led him to interpret the Constitution as it would be have understood by the public at the time it became law. He gained respect from both sides of the aisle, with President Barack Obama saying, “For almost 30 years, Justice Antonin ‘Nino’ Scalia was a larger-than-life presence on the bench — a brilliant legal mind with an energetic style, incisive wit, and colorful opinions. ... He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court.” House Speaker Paul Ryan said, “The passing of this brilliant jurist is a great loss, but his writings—with their plain language and constitutional moorings—will guide generations to come.” Scalia was the longest serving member of the current Court.

  1. Merrick Garland’s nomination—March 11

After Scalia’s surprising death, the Obama administration had the opportunity to fill a third vacant Supreme Court seat. At the time of Scalia’s death, the Court was divided with four conservative-leaning Justices, four liberal-leaning Justices and the moderate Justice Anthony Kennedy who often acted as a deciding vote in difficult cases. With the balance of the Court in question, President Obama nominated Judge Merrick Garland on this day to fill the seat.

Judge Garland sits on the United States Court of Appeals for the D.C. Circuit and has served as its chief judge since 2013. He had been in the running for Justice John Paul Stevens’ seat in 2010, but that seat eventually went to Justice Elena Kagan. Still, Garland has received bipartisan praise throughout his career.

However, given election-year politics and concerns about shifting power on the Court, Senate Republicans were not interested in considering any nominations until after the presidential election. In an unprecedented move, they refused any hearing on the Garland nomination, inspiring fierce debate over whether the Constitution requires a hearing and vote. As a result, Scalia’s seat remains unfilled; President-elect Donald Trump is expected to name a replacement in the early days of his administration.

  1. Debate over the Electoral College—December 19
The Associated Press called the presidential race for Donald Trump around 2:30am on November 9, after he had won both Pennsylvania and Wisconsin, which pushed him over the 270 Electoral College vote threshold needed to win. The final projected tally: 306 for Trump, 232 for Hillary Clinton. It was similar to the 2000 election, in which Texas Governor George Bush won the Electoral College vote 271-266, but Vice President Al Gore won the popular vote by close to 1,000,000 votes. Clinton exceeded that number, with her lead close to 3 million.

The result led to protests against the Electoral College, with calls for electors to change their vote. But when the electors voted on this day, only a handful defected. Senator Barbara Boxer proposed a bill that would abolish the Electoral College and use the popular vote to elect the President. Interestingly, Trump has in the past criticized the Electoral College; in the wake of criticism of his own victory, Trump asserted that he would have campaigned differently had the election been decided solely by the popular vote.

  1. Donald Trump’s shifting position on Muslim immigration—June 15

At the end of 2015, just days after a shooting in San Bernardino carried out by ISIS sympathizers, Trump announced that, during his presidency, he would call for a complete ban on Muslim immigration to the United States

As the election grew more heated, Trump’s position regarding Muslim immigration seemed to swing back and forth.  On this day, Trump said that the ban applied to people “coming from certain horrible parts of the world with terror ties.”  On June 22, he noted that “ISIS also threatens peaceful Muslims across the Middle East, and peaceful Muslims across the world … who only want to raise their kids in peace and safety.” On June 27, Trump said that he “would stop that entirely” in reference to immigration from Syria. At this point, it is still unclear what the new President’s policy will be.

  1. United States v. Texas—June 23

In 2014, the Obama administration announced the executive order, Deferred Action for Parents of Americans and Lawful Permanent Residents, known as DAPA. The policy allows immigrants who have been in the country illegally since 2010, and have children that are natural-born or naturalized citizens of the United States, to temporarily avoid deportation. This policy, an expansion on the Deferred Action for Childhood Arrivals, affects about half of the 11 million immigrants who are subject to deportation. It has been extremely controversial, with its critics claiming that it is not true immigration reform and that it undermines the existing procedures for legal immigration.

In 2015, the State of Texas challenged the constitutionality of DAPA in federal district court. The lower court ruled that DAPA was unconstitutional, and the case eventually reached the Supreme Court early in 2016. On this day, the Supreme Court reached a split 4-4 decision that let the lower court’s ruling stand.  This decision was a significant loss for the Obama administration but a victory for conservatives who felt that the President had been too permissive of illegal immigration and too casual with the rule of law.

  1. Whole Woman’s Health v. Hellerstedt—June 27

In a 5-3 decision on this day, the Supreme Court once again affirmed Roe v. Wade and struck down parts of a 2013 Texas law that mandated particular types of facilities that can perform abortions and required doctors to have admitting privileges at a nearby hospital. About half of the facilities that administered abortions in Texas closed after the passage of that law. In a decision that has been called one of the most important rulings in favor of reproductive rights since 1992, the Court ruled that the provisions in the Texas law constituted an “undue burden” on abortion access and were therefore unconstitutional.

  1. The candidates v. the press—June 13 and September 8

On this day in June, Donald Trump added the Washington Post to a growing list of media outlets that were banned at his rallies. Trump had been engaged in a back-and-forth with the media over their coverage of him. Hillary Clinton did not ban any outlets, but instead decided to avoid them by not holding a press conference for 261 days; even then, she only answered a few questions on this day in September. Both candidates faced an enormous amount of negative coverage, leading to acrimonious relationships with the press. President-elect Trump has not held a press conference since July 27.

  1. Colin Kaepernick kneels—August 26

Normally when a quarterback kneels, it means that the game is over and his team has won. But when Colin Kaepernick knelt during the National Anthem for the first time on this day, it was only the beginning. Kaepernick explained his decision to kneel in a post-game interview, saying, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color,” He told NFL Media, “To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.” He exercised his First Amendment right to protest, and critics exercised their First Amendment right to respond. Although several different players joined the 49ers QB in kneeling during the Anthem, he was also lambasted by fellow NFL players, several politicians and even a Supreme Court Justice. Despite the backlash, Kaepernick continues to kneel.

  1. Congressional sit-in over gun control—June 22

Feeling pressure to pass gun control legislation after the mass shooting in Orlando, Senate Democrats proposed a law that would block the sale of firearms to those who are “subjected to heightened screening before they are allowed to board a plane.”  In response to opposition from congressional Republicans, House Democrats, led by John Lewis, staged a sit-in on the floor of the House on this day. Speaker Paul Ryan accused the House Democrats of “threatening democracy.”  The partisan fight over gun control and interpretation of the Second Amendment is just one of many that has come to a boil in the last few years. To many, it was a signal of how divided the government has become.

  1. Debate over ballot access and integrity—July 29

On this day, the U.S. Court of Appeals for the Fourth Circuit struck down parts of North Carolina’s voting law. The 2013 law had required proper ID for voting, eliminated out-of-precinct voting and same-day voter registration, and cut a week of early voting. The writers of the bill defended it by saying that it would reduce voter fraud and inspire trust in election results. Similar laws in Wisconsin, Kansas, and Texas were also overturned. North Carolina planned on taking its case to the Supreme Court; while the case has not been heard, the Court did rule that the law not be reinstated before the fall election.

Maggie Baldridge and Chris Calabrese are interns at the National Constitution Center. The former is a recent graduate of Dickinson College; the latter is a recent graduate of St. Joseph’s University.

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