Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P18 potx

in Boumediene v. Bush, __U.S.__, 128 S. Ct. 2229, 171 L. Ed. 2d 41(2008), ruled that the act and a similar 2006 statute were unconstitution- al. In Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004), the Court had previously ruled that American citizens held as enemy combatants may cha llenge their detention in U.S. courts. Another detainee raised objections in federal court about his enemy combatant status. In May 2002, Jose Padilla, a U.S. citizen, was arrested in Chicago as he disembarked from a flight from Pakistan. Then-attorney general JOHN ASHCROFT announced that Padilla was a “dirty bomber,” an al-Qaeda terrorist trained to make and explode a low-grade nuclear device. He was arrested under a judicial warrant, which made it necessary for him to make a court appearance. A lawyer was appointed to repre- sent Padilla, but then the U.S. government changed its mind. It informed the judge that Padilla had been classified as an enemy combatant in a military order signed by President Bush. Padilla was confined to military custody in a South Carolina brig, and his requests to see his lawyer were refused. Padilla challenged his detention in a case that lasted several years. The Supreme Court was about to hear arguments in his case as to whether enemy combatant status could be applied to a U.S. citizen, when the government transferred him back to the federal criminal j ustice system. In 2007 Padilla was convicted on terrorism and conspiracy charges and sentenced to 17 years in prison. The federal district judge reduced the sentence because of the extreme stress that was placed on Padilla while being held in a military prison. FURTHER READINGS Bovard, James. 2003. Terrorism and Tyranny. New York: Palgrave Macmillan. Martin, Clarence. 2006.Understanding Terrorism: Challenges, Perspectives, and Issues. 2d ed. New York: Sage. Richardson, Louise, ed. 2006.The Roots of Terrorism. New York: Routledge. CROSS REFERENCES Deportatio n; Due Process of Law; International Law. ENERGY Laws and regulations concerning the produc- tion and distribution of energy have existed for more than 100 years in the United States. Energy law became recognized as a specialty following the energy crises of the 1970s. It focuses on the production, distribution, conser- vation, and development of energy resources like coal, oil, natural gas, NUCLEAR POWER, and hydroelectric power. The regulation of energy in the late 1800s was on a local and regional level and was primarily market driven. The transition from using wood as a primary source of energy to using coal was almost complete, and a second transition from coal to natural gas and oil was beginning. In 1876 the U.S. Supreme Cour t, in Munn v. Illinois, 94 U.S. (Otto) 113, 24 L. Ed. 77, held that “natural monopolies” could be regulated by the government. Munn concerned grain eleva- tors but stood more generally for the principle that the public must be allowed to control private property committed to a use in which the public has an interest. This legal recognition of natural monopolies provides the basis for much of the legal and regulatory control the government exercises over utility companies. In 1900 Standard Oil Company controlled 90 percent of the oil market; within a few years, antitrust litigation had reduced its market share to 64 percent. Aside from antitrust enforce- ment, the federal government was content to let the market control the energy industry. Oil, coal, and natural gas found their greatest structural impediment in the “bottleneck” of distribution—pipelines fo r oil and natural gas, and railways for coal. The dominant model of energy policy that emerged from this period and existed unchanged until the 1970s was one of support for conventional resources and regula- tion of industries whose natural monopolies required some government oversight to ensure that their public purpose served a PUBLIC INTEREST . On October 17, 1973, the Organization of Petroleum Exporting Countries (OPEC) an- nounced an embargo of oil exports to all countries, including the United States, that were supporting Israel in the Yom Kippur War. Only approximately 10 percent of the United States’ oil imports were affected, but the perception of a major oil shortage motivated the next three presidential administrations to exert a strong federal influence over energy. President RICHARD M. NIXON created the Federal Energy Office (Exec. Order No. 11,930, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENERGY 159 41 Fed. Reg. 32, 399) and appointed an “energy czar” to oversee oil supplies. President Gerald R. Ford’s administration saw the passage of the Strategic Petroleum Reserve (42 U.S.C.A. § 6234) and the promulgation of mini mum efficiency regulations for automobiles. In 1977 Jimmy Carter’s administration created the DEPARTMENT OF ENERGY (42 U.S.C.A. § 7101), which was the framework for the coordination, administration, and execution of a comprehensive national energy program. The goal of a comprehensive national energy program was achieved with the passage of the National Energy Act of 1978, which consisted of five distinct pieces of legislation. The National Energy Conservation Policy Act (42 U.S.C.A . § 8201 et seq.) set standards and provided financing for conservation in build- ings. The Powerplant and Industrial Fuel Use Act (42 U.S.C.A. § 8301 et seq.) encouraged the transition from oil and gas to coal in boilers. The PUBLIC UTILITIES Regulatory Policies Act (15 U.S.C. A. § 2601) granted Congress authority over the interstate transmission of electric power. The Natural Gas Policy Act (15 U.S.C.A. § 3301) unified the gas market and promoted the deregulation of the natural gas industry. The Energy Tax Act (26 U.S.C.A. § 1 et seq.) approved tax credits to promote conservation. The administration of RONALD REAGAN set policies that marked a significant change in the national energy policy, away from the Carter administration’s centralized, governmentally regulated energy plan, which set ambitious goals for market stabilization and energy con- servation through governmen t intervention. The Reagan administration favored a more market-driven approach to achieve these goals. Although unsuccessful in its goal to abolish the Department of Energy, the Reagan administra- tion was able to deregulate the natural gas industry through administrative initiatives (un- der the Federal Energy Regulatory Commission) and the Wellhead Decontrol Act of 1989 (15 U.S.C.A. § 3301). The administration of GEORGE H. W. BUSH also favored a market-driven approach to the regulation of energy, but the Persian Gulf War against Iraq in 1991 required Congress to respond to volatile conditions in the oil- exporting Middle East. The National Energy Policy Act of 1992 (42 U.S.C.A. § 13201) addressed issues such as competition among electric power generators and tax credits for wind and biomass energy production systems. The National Energy Policy Plan, issued in 1995 during Bill Clinton’s administration, continued the market-focused approach of the Reagan and Bush administrations. Citing as its primary goal a “sustainable energy policy,” the plan states that the “administration’s energy policy supports and reinforces the dominant role of the private sector” in achieving this goal. The mid-1990s focus of market-driven, private-sector regulation of energy develop- ment, conservation, and distribution may have to change in the years ahead. The energy needs of industrialized nations are intensifying, and the developing countries of the world are increasing their energy demands at a rate of 4.5 percent per year. The United Nations’ (UN) Intergovernmen- tal Panel on Climate Change announced in 2007 that greenhouse-gas emissions from human activity, particularly the burning of fossil fuels such as oil and coal, was “very likely” the main cause of global warming and issued a warning of dire consequences to the world if such intensi- fied global action to curb emissions was not undertaken. This, in combination with other sobering incidents such as the massive power failures and grid breakdowns in New York (2003), the 2008 coal slurry disaster in Tennes- see, and the volatility of prices for crude oil, have all resulted in enhanced efforts being shifted to renewable or sustainable energy sources. These include, but are not limited to, the harnessing of power from biomass, wind, hydroelectric, and solar power sources. Some of Energy law concerns the production, distribution, and development of energy resources. In recent decades, renewable resources such as solar power have gained support. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 160 ENERGY these efforts are privately funded by entrepre- neurial interests, others by governmental grants. The U.S. 2008 and 2009 tax codes for personal and business incomes granted sizeable tax credits for energy-saving improvements. Several major mortgage lenders, including Bank of America, Citigroup, and JP Morgan Chase, began rewarding homeowners with $1,000 deductions on closing costs if they made energy-efficient improvements to their houses. Several states created programs to encourage energy-efficient improvements for homes. Kan- sas, Pennsylvania, and New York all offered low- or reduced-interest loans for energy- efficient home improvements. Domestic drilling for oil remains controver- sial. The Bush administration had actively pursued the opening of new areas of land for explorative drilling. One of the most controver- sial debates surrounded the Arctic National Wildlife Refuge on the northern coast of Alaska. In 2005, Republican Senator Ted Stevens of Alaska attached an amendment authorizing Arctic Refuge drilling to the defense appropria- tions bill, but it was defeated by a Democrat filibuster. When crude oil exceeded $100/barrel in 2008, Bush again asked Congress to reverse the ban on offshore drilling in this area (banned by previous 1990 EXECUTIVE ORDER issued by his father, GEORGE H.W. BUSH). The measure again failed. The 2009 Obama administration is opposed to opening the Arctic Refuge for oil exploration, and in February 2009, Interior Secretary Ken Salazar canceled Bush-era shale- development leases on federal lands in Color- ado, Utah, and Wyoming. INTERIOR DEPARTMENT officials noted that Bush officials had previously testified before Congress that shale from these regions would not be commercially viable until at least 2016. According to the Energy Information Ad- ministration (EIA), the United States produced approximately 8,514 barrels of oil per day in 2007, but consumed about 19,497 barrels. It produced approximately 19,728 billion cubic feet of natural gas in 2007, but consumed 23,038. It also ranked second in the world for carbon emissi ons. Sections of Title IX of the much-touted House energy bill (the Energy Independence and Security Act of 2007), passed by the U.S. Congress in December 2007, included provi- sions mandating that the Secretary of Energy issue regulations prohibiting the sale of 100- watt incandescent light bulbs after January 1, 2012 (Sections 9021-9030); the raising of required energy efficiency for washing machines, dishwashers, refrigerators, and other items (Sec- tions 9001-9020); the updating of state BUILDING CODES to be more energy-efficient (Section 9031); and additional financial assistance to consumers for home weatherization projects (Section 9034). In early 2008 House Democrats, led by Speaker Nancy Pelosi, pledged to back clean-energy rhetoric with real change, starting with the Capitol Dome, scheduled to get its electricity from wind power and heat from natural gas in the foreseeable future. The Obama administra- tion repeatedly pledged to reduce dependency on foreign oil, but through billions of dollars allocated toward renewable energy research, part of the economic stimulus bill. FURTHER READINGS Energy Information Administration. 2009. “Electric Power Industry 2007: Year in Review.” January 21, 2009. Available online at http://www.eia.doe.gov/cneaf/ electricity/epa/epa_sum.html.; website home page: http://www.eia.doe.gov/ (World information from http://tonto.eia.doe.gov/count ry/co untry_energy_data. cfm?fips=US) (accessed September 10, 2009) Laitos, Jan G., and Tomain, Joseph. 1992. Energy and Natural Resources Law. St. Paul, Minn.: West. Miller, Alan S. 1995. “Energy Policy from Nixon to Clinton: From Grand Provider to Market Facilitator.” Environ- mental Law 25. Reilly, Kathleen C. 1995. “Global Benefits versus Local Concerns: The Need for a Bird’s Eye View of Nuclear Energy.” Indiana Law Journal 70. Tankersley, Jim and Nicholas Riccardi. 2009. “Administra- tion Blocks More Bush-Era Oil Shale Development Leases.” Los Angeles Times, February 26, 2009. Tomain, Joseph P. 1990. “The Dominant Model of United States Energy Policy.” University of Colorado Law Review 61. CROSS REFERENCES Electricity; Energy Department; Environmental Law; Mine and Mineral Law; Public Utilities. ENERGY DEPARTMENT The Department of Energy (DOE) is an executive agency of the federal government. It was created in response to the early 1970s energy shortages, long lines at the gas pumps, and rising prices. Its many duties include the administration of federal energy policies and functions, research and development (R&D) of energy technology, marketing of federally produced power, promotion of energy GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENERGY DEPARTMENT 161 conservation, oversight of the NUCLEAR WEAPONS program, regulation of energy production and consumption, and collection and analysis of energy-related data. The department’s web site can be found at www.energy.gov. The DOE was created in 1977 under the Department of Energy Organization Act (42 U.S.C.A. § 7131). The act brought together all major federal energy responsibilities into one cabinet-level department. The DOE divides itself into three major programs, or divisions: energy programs, weapons/waste clean-up pro- grams, and science and technology programs. It also oversees five power administrations and includes the Federal Energy Regulatory Com- mission. Many of the department’s research, development, testing, and production activities are performed by contractors who operate government-owned facilities. Office of the Secretary The secretary of energy provides overall leader- ship f or the department, decides major energy policy, advises the president on energy issues, and acts as the principal spokesperson for the department. The deputy secretary oversees the department’s energy programs, and the under- secretary has responsibility for the weapons/ waste clean-up programs and science and technology programs. Energy Programs Major offices within the DOE include: Energy Efficiency and Renewable Energy, Office of Environmental Management Fossil Energy, Nuclear Energy, the Energy Information Ad- ministration, and Civilian Radioactive Waste Management. The Office of Energy Efficiency and Renew- able Energy directs efforts to increase the production and utilization of renewable power sources such as solar, biomass, wind, geother- mal, and alcohol fuels. It also works to improve the energy efficiency of transportation, build- ings, and industrial systems. The office supports research and development related to these areas. In addition, it provides financial assistance for state energy planning, weatherizes housing for poor and disadvantaged people, and imple- ments energy co nservation measures by gov- ernment and public institutions. The Office of Fossil Energy supports research and development programs related to the fossil fuels: coal, petroleum, and gas. It conducts and funds long-term, high-risk re- search to help the private sector commercialize advanced concepts in fossil fuel energy. The assistant secretary for fossil energy also manages the Clean Coal Technology Program, Strategic Petroleum Reserve, Naval Petroleum and Oil Shale Reserves, and Liquefied Gaseous Fuels Spill Test Facility. The Office of Nuclear Energy oversees the department’s research and development in nuclear fission technology, including nuclear reactor development. This office manages the Remedial Action Program, which performs decontamination work at DOE surplus sites. The office also coordinates efforts to prevent the proliferation of nuclear technology and evalu- ates new and potential advances in nuclear technology. The Energy Information Administration collects, processes, and publishes data related to energy production, demand, consumption, distribution, technology, and resource reserves. In addition, the administration helps govern- mental and nongovernmental users to under- stand energy trends. The Office of Civilian Radioactive Waste Management manages the Nuclear Wa ste Fund and other federal programs that are related to the storage and disposal of high-level radioac- tive waste and spent nuclear fuel. The Department of Energy’s role in manag- ing nuclear weapons and storage sites received The Federal Energy Regulatory Commission is responsible for establishing rates for the transportation of oil by pipeline, such as the Trans-Alaska pipeline (pictured). AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 162 ENERGY DEPARTMENT Department of Energy a The Deputy Secretary also serves as the Chief Operating Officer. Federal Energy Regulatory Commission Office of the Secretary Deputy Secretary a General Counsel Advanced Research Projects Agency-Energy Chief Financial Officer Chief Information Officer Chief Human Capital Officer Management Public Affairs Bonneville Power Administration Southwestern Power Administration Energy Information Administration Southeastern Power Administration Western Area Power Administration Assistant Secretary for Policy & International Affairs Assistant Secretary for Congressional & Intergovern- mental Affairs Health, Safety & Security Inspector General Economic Impact & Diversity Hearings & Appeals Intelligence and Counter- intelligence Office of the Under Secretary for Nuclear Security/ Administrator for National Nuclear Security Administration Deputy Administrator for Defense Programs Deputy Administrator for Defense Nuclear Nonproliferation Deputy Administrator for Naval Reactors Deputy Under Secretary for Counter-terrorism Associate Administrator for Defense Nuclear Security Associate Administrator for Emergency Operations Associate Administrator for Infrastructure & Environment Associate Administrator for Management & Administration Office of the Under Secretary Legacy Management Assistant Secretary for Environmental Management Assistant Secretary for Fossil Energy Civilian Radioactive Waste Management Assistant Secretary for Energy Efficiency & Renewable Energy Assistant Secretary for Nuclear Energy Assistant Secretary for Electricity Delivery & Energy Reliability Workforce Development for Teachers & Scientists Basic Energy Sciences High Energy Physics Biological & Environmental Research Fusion Energy Science Nuclear Physics Advanced Scientific Computing Research Office of Science Office of the Under Secretary for Science Chief of Staff Departmental Staff and Support Offices ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ENERGY DEPARTMENT 163 increased scrutiny after the terrorist attacks of September 11, 2001. Concern was raised that the DOE’s sites were not properly secured in light of the attacks. In respo nse, the DOE assured critics that the sites were safe, and requested increased funding for them. Another domestic nuclear issue that the DOE has been involved with is storage of nuclear waste. In a controversial decision, the DOE recommended the use of Yucca Mountain in Nevada as the nation’s first long-term geologic repository for high-level radioactive waste. Despite the strong disagree ment of most Nevada residents, the president and Congress approved the decision in 2002. Weapons/Waste Clean Up Programs The weapons/waste clean-up programs include the Offices of Defense Programs, Environmen- tal Restoration and Waste Management, and Intelligence and National Security. The Office of Defense Programs directs U.S. nuclear weapons research, development, testing, production, and surveillance; manages defense nuclear waste and by-products; and coordinates research in inertial confinement nuclear fusion. The Office of Environmental Restoration and Waste Management assesses and cleans up the waste sites of inactive nuclear weapons and of other weapons and relate d materiel. The Office of Intelligence and National Security meets the intelligence information requirements of the DOE and makes de- partmental expertise and information avai- lable to the intelligence community. The office secures classified information and manages the department’s policies relating to arms control, nuclear nonproliferation, and export controls. The Department of Energy has been in- volved with securing Russian nuclear materials and with helping Russian nuclear scientists to find employment. The department works with its Russian counterparts to improve measures on nuclear materials physical protection, con- trol and accounting, as well as preventing illegal trafficking and handling of nuclear and radio- active materials. The DOE and Russian officials recently agreed to upgrade their cooperation in connection with these issues. Science and Technology Programs The science and technology programs include the Offices of Energy Research, Science Education and Technical Information, and Laboratory Management. The Office of Energy Research advises the secretary on DOE energy research and develop- ment programs. It manages the basic energy sciences, high-energy physics, and fusion- energy research programs. It also administers grants to university and industry researchers. The Office of Science Education and Techni- cal Information develops and implements DOE policy for science education programs at second- ary and post-secondary schools; manages the collection and dissemination of department research and development activities; and repre- sents the United States in international organiza- tions such as the International Atomic Energy Agency and the International Energy Agency. The Office of Laboratory Management administers DOE laboratories and formulates laboratory research programs and policies. The Office of Advanced Automotive Tech- nologies (OAAT), a part of the Office of Transportation Technologies (OTT), was estab- lished in 1996 to consolidate all of the U.S. Department of Energy’s (DOE) light vehicle technology research and development activities. To meet legislated vehicle-energy goals and emissions regulations, OAAT’s research focuses on eliminating the most serious technological barriers to the development of energy-efficient automotive technologies. The office was given responsibility for the new Freedom CAR initiative, an attempt to come up with a viable hydrogen-powered car. Power Administrations The DOE oversees five power administrations that market and transmit electric power pro- duced at federal hydroelectric projects: the Bonneville Power Administration, in the Pacific Northwest; the Alaska Power Administration; the Southeastern Power Administration, serving West Virginia, Virginia, North Caroli na, South Carolina, Georgia, Florida, Alabama, Missis- sippi, Tennessee, and Kentucky; the Southwest- ern Power Administration, in Arkansas, Kansas, Louisiana, Missouri, Oklahoma, and Texas; and the Western Area Power Administration, serv- ing 15 Widwestern and Western states. Federal Energy Regulatory Commission The DOE also includes the Federal Energy Regulatory Commission (FERC), an independent GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 164 ENERGY DEPARTMENT commission made up of five members. The commission took over many of the functions of the former Federal Power Commission, including the setting of rates and charges for the sale of natural gas and electricity. The commission also establishes rates for the transportation of oil by pipeline. FERC’s role in managing the nations power supply has proved somewhat controversial. Critics accused it of not doing enough to prevent California’s power crisis in 2001, though FERC eventually did impose price controls to mitigate the crisis. In 2003, FERC determined that energy suppliers manipulated the market and that California was owed $3.3 billion in refunds. Transferals to Homeland Security After the passage of the Homeland Sec urity bill (6 USCA § 101 et seq.), several DOE functions were transferred to the HOMELAND SECURITY DEPARTMENT . These functions included activities relating to chemical/biological R&D, nuclear weapons SMUGGLING, national security, energy security and assurance, and nuclear threat assessment capability. The DOE also cooperates with the DEPARTMENT OF HOMELAND SECURITY in a variety of areas where the DOE still has primary responsibility for security, including the security of nuclear and laboratory sites and other power sources. In February 2009, the Obama administra- tion enacted the American Recovery and Reinvestment Act of 2009, under which the DOE received a minimum of $36.7 billion. By far, the largest percentage of the grant was allocated to energy efficiency and renewable energy ($16.8 billion). Another $6 billion was allocated through the Office of Environmental Management, and $400 million was SET ASIDE for the Advanced Research Projects Agency (ARPA). Of the money going to energy efficiency and renewable energy, the DOE established a Block Grant Program of an estimated $2.7 billion in formula grants going to cities and counties responding to the Funding Opportunity An- nouncement (FOA). FURTHER READINGS Bazeley, Michael. 2003. “FERC Finds Suppliers Fixed Energy Market.” San Jose Mercury News (March 27). Energy Department. 2009. “Recovery and Reinvestment” Available online at http://www.energy.gov/news2009/; website home page: http://www.energy.gov/ (World information from http://tonto.eia.doe.gov/country/ country_energy_data.cfm?fips=US) (accessed Septem- ber 10, 2009) State Department Press Releases and Documents 2004. National Security Highlighted in Energy Department’s 2004 Budget. Department of Energy U.S. Government Manual Website. Available online at www. gpoaccess.gov/gmanual> (accessed December 26, 2009). ENFEOFFMENT Also known as feoffment. Complete surrender and transfer of all land ownership rights from one person to another. In old English law, an enfeoffment was a transfer of property by which the new owner was given both the right to sell the land and the right to pass it on to heirs, evidenced by livery of seisin, a ceremony for transferring the possession of real property from one individual to another. ENFRANCHISEMENT The act of making free (as from slavery); giving a franchise or freedom to; investiture with privileges or capacities of freedom, or municipal or political liberty. Conferring the privilege of voting upon classes of persons who have not previously possessed such. ENGAGE To become involved with, do, or take part in something. To be engaged in something, such as a type of employment, implies a continuity of action. It is used in reference to an occupation or anything in which an individual habitually participates. A person can also be engaged to do a parti- cular activity by contract or other agreement. When two people become engaged to marry, they are bound together by an agreement or promise to marry one another. ENGAGEMENT A binding, pledging, or coming together. A mutual pact, contract, or agreement. An engagement to marry is a BILATERAL CONTRACT between two people whereby they mutually promise to marry one another. Formerly, a breach of the engagement to marry was a CAUSE OF ACTION in several jurisdictions, but this is not true in the early 2000s. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENGAGEMENT 165 An engagement letter is a clear delineation of an agreement that covers a particular project or employment. An attorney can require a client to sign such a letter to indicate that the person has been employed to perform specifically designated tasks. ENGEL V. VITALE In 1962 the Supreme Court struck down a state- sponsored prayer in New York public schools in Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601, the first in a line of decisions banning school prayer. In finding a 22-word voluntary prayer unconstitutional, the Court opened a Pandora’s box. For the next four decades, public anger brought many calls for a CONSTITUTIONAL AMENDMENT to restore what Engel took away. At the same time, the ruling was a landmark victory for church-state separationists who marked it as the beginning of a new era in FIRST AMENDMENT doctrine. The origins of the case lay in a controversial education project in the early 1950s, started by the New York Board of Regents, a bipartisan citizen commission appointed by the New York State Legislature to oversee state schools. The regents set out to recommend a plan for “moral education,” the most controversial part of which included prayer. Religious leaders natu- rally differed over the wording of a proposed prayer intend ed to be recited by students each morning, but in 1951 a compromise resulted in what they hoped would be an inoffensive solution. Included as part of the regents’ Statement on Moral and Spiritual Training in the Schools, the prayer went: “Almighty God, we acknowledge our dependence upon Thee, and we Beg Thy blessings upon us, our parents, our teachers and our country.” Going out of their way to avoid trouble, the regents made the prayer entirely optional. Both local school boards and parents co uld decide if it would be used. Nevertheless, its authors had not written it only to try their hand at prayer making. “We believe,” they wrote, “that this Statement will be subscribed to by all men and women of GOOD WILL, and we call upon all of them to aid in giving life to our program. ” But fearing religious and legal controversy, New York school districts shunned the prayer. They had good reason: not only was the state quite ethnically and religiously diverse, but also religious instruction in public schools had been declared unconstitutional by the U.S. Supreme Court in 1948 (McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 549). Most school districts followed the lead of New York City, deciding against adopting the prayer. Only about 10 percent of them were using it by the late 1950s. In 1958 the prayer provoked a lawsuit (Engel). Five parents of students in the small suburb of New Hyde Park, Long Island, brought suit to stop its use in their schools. Two parents were Jewish, the third was Unitarian, the fourth was a member of the Ethical Culture Society, and the fifth was a self-professed atheist. They believed that the school system was coercing their children into saying the regents’ prayer, even though individually, their children could be excused from participating. The difficulty of granting children the permission to step out of the room during recitation of the prayer had, they argued, made the prayer effectively compul- sory. Furthermore, voluntary or not, they said, the prayer violated the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion”). The parents received substantial help in their suit from the AMERICAN CIVIL LIBERTIES UNION (ACLU), which had been advocating strict separation of church and state for many years. At first, the lawsuit failed. The plaintiffs asked the New York State Supreme Court— acting as a trial court—to stop use of the prayer. It refused. Justice Bernard S. Meyer found the prayer clearly religious, but not a violation of the First Amendment. Instead, he ordered The 1962 Engel v. Vitale ruling spurred much dissent, as seen in this image of Texas high school students beginning the day in prayer two days after the Court’s decision. BETTMANN/CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 166 ENGEL V. VITALE school districts to set up safeguards against “embarrassments and pressures” upon children who did not wish to participate. The New York Appellate Division upheld the decision. So did the state’s Court of Appeals, by a vote of 5–2. It said the nation’s founders had designed the Establishment Clause to prohibit adopting an official RELIGION or favoring a particular religion. “They could not have meant to prohibit mere professions of belief in God,” the court held, “for if that were so, they themselves in many ways were violating the rule when and after they adopted it.” After agreeing to review the case, the U.S. Supreme Court heard oral arguments on April 3, 1962. Attorney William J. Butler made the following case for the plaintiffs: all state support to religion violates the First Amendment, and the prayer constituted the “teaching of religion in a public institution” and should therefore be banned. Several powerful groups joined the plaintiffs by filing friend-of-the-court briefs. These included the ACLU; the American Jewish Committee, joined by the ANTI-DEFAMATION LEAGUE of B’nai B’rith; the Synagogue Council of America, joined by the National Community Relations Advisory Council; and the American Ethical Union. These organizations took differ- ent positions. The American Ethical Union saw the prayer as “governmental preference for theism in violation of the First and Fourteenth Amendments.” The Synagogue Council argued that any school prayer was unconstitutional— even if voluntary—because it constituted “state aid to religion.” The school board defended the prayer on several grounds. It cited the second part of the First Amendment’s religious guarantees, the Free Exercise Clause (“or prohibiting the free exercise thereof”). The prayer was an example of free exercise, Attorney Bertram B. Daiker argued, that fell far short of establishing a religion because it was optional, not compulsory. Daiker also found authority in the nation’s traditions, calling the prayer “fully in accord with the tradition and heritage that has been handed down to us.” Like the plaintiffs, the school board had powerful friends in court. Briefs supporting the prayer came from 19 state attorneys general who also saw religious and national tradition under attack. The attorneys general said the nation’s founders “would be profoundly shocked” by the lawsuit. On June 25, 1962, the groundbreaking decision was delivered. B y a 7–1majority,the Supreme Court found the prayer unconstitu- tional (the ninth justice, BYRON R. WHITE,did not participate because he did not assume his seat on the court until two weeks after the case had been argued). J ustice Hugo L. Black’s majority opinion called the prayer “wholly inconsistent ” w ith the Establishment Clause. A considerable series o f precedents existed from 194 0 on for the ruling, but Black did not cite them. Instead, he re called the bitter histo ry of church-state conflict in England and colo- nial America, no ting that by the time the Constitution was written, “there was a wide- spread awareness among many Americans of the dangers of a union of church and state.” The First Amendment was added to prevent that union, which “tends to destroy govern- ment and to degrade religion.” Black scorned the school board’s claim that the regents’ prayer was harmless. Neither its brevity nor its voluntary nature nor its nondenominational status could protect it from the Constitution. “One o f the greatest dangers to the freedom of the individual to worship in his own way lies in the government’s plac ing its official stamp of approval upon one particular kind of prayer or one particular form of religious services,” wrote Black. Critics immediately blasted the Engel deci- sion. In a move that seemed to anticipate this response, Black wrote, It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong…. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance. The Court’s message to government was simple: stay out of the prayer business, and leave it to religious leaders. In a sole dissent, Justice POTTER STEWART argued that the majority had overstated the meaning of the Establishment Clause: it pre- vented only the creation of official religions. “I cannot see how an ‘official religion’ is established GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENGEL V. VITALE 167 by letting those who want to say a prayer say it,” he wrote, and his view was prophetic. For the next 30 years, advocates of school prayer could not see how, either. By 1985, when the school prayer ban reached a new level in WALLACE V. JAFFREE, 472 U.S. 38, 105 S. Ct. 2479, 86 L. Ed. 2d 29, Justice WILLIAM H. REHNQUIST argued similarly in his dissent to the majority ruling banning a so- called moment of silence in the classroom. Engel was only the first ban against prayer in public schools; a year later, the Court returned to the issue in ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844, with even more far-reaching results— the banning of the Lord’s Prayer and Bible reading in public schools. Despite these rulings many school boards continued to offer prayers at school events, such as graduation ceremonies and athletic events. As a result, the Supreme Court revisited the issue of school prayer a number of times since Engel. In 1992 the Supreme Court in LEE V. WEISMAN, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467, held that a high school principal, acting in accord with school board policy, violated the Establishment Clause by inviting a local clergyman to deliver a nonsectarian prayer at graduation. In response to this ruling, school boards around the United States reconsidered their policies but others remained adamant about permitting prayers at school events. In a Texas case, the school board allowed the student council chaplain to lead prayers over the public-address system before each high school football game. After former students filed a lawsuit challenging this practice, the school modified its policy. The school board allowed elected student representatives, no longer called chaplains, to give a “message or invocation” before the games. The students were free to say whatever they chose, as long as it promoted good sportsmanship. The policy did not require that the invocations be nonsectarian. The Supreme Court rejected this approach in Santa Fe Independent School District v. Doe , 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). The Court ruled that the school had sponsored a religious message that was imper- missible under the First Amendment. The facts of the case indicated that the prayer had been sanctioned by school policy, delivered over a school microphone by a student, and supervised by a school faculty member. These facts led to the conclusion that the prayer was public speech and subject to the Establishment Clause. The Santa Fe decision made it clear that the Engel reasoning applied to school events. The school district had argued that students were not compelled to attend the football games and therefore there was no coercion. The Court found otherwise, pointing out that some students, such as cheerleaders, football players, and members of the band had to attend. The Court concluded that the “Constitution demands that schools not force on students the difficult choice between whether to attend these games or to risk facing a personally offensive religious ritual.” FURTHER READINGS American Civil Liberties Union. 2002. “The Establishment Clause and Public Schools.” 1993. Available online at http://www.aclu.org/religion/gen/16037res20020311.html; website home page: http://www.aclu.org (accessed July 21, 2009). Blanshard, Paul. 1963. Religion and the Schools: The Great Controversy. Boston: Beacon. Drakeman, Donald L. 1991. Church-State Constitutional Issues: Making Sense of the Establishment Clause. Westport, CT: Greenwood. Gunn, T. Jeremy. 1992. A Standard for Repair: The Establishment Clause, Equality, and Natural Rights. New York: Routledge. “Religion and Schools.” 1994. Congressional Quarterly Researcher (February 18). CROSS REFERENCE Schools and Scho ol Districts. ENGLISH LAW The system of law that has developed in England from approximately 1066 to the present. The body of English law includes legislation, COMMON LAW, and a host of other legal norms established by Parliament, the Crown, and the judiciary. It is the fountain from which flowed nearly every facet of U.S. law du ring the eighteenth and nineteenth centuries. Many of the concepts embodied in the U.S. Constitution—such as the separation and dele- gation of powers between three branches of government and the creation of an elective national assembly representing the will of the people—trace their roots to English law. Funda- mental legal procedures applied in the U.S. civil and criminal justice systems also originated in England. The jury system, for example, slowly matured into its modern form over several hundred years of English history. The GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 168 ENGLISH LAW . (FERC), an independent GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 1 64 ENERGY DEPARTMENT commission made up of five members. The commission took over many of the functions of the former Federal. administration of federal energy policies and functions, research and development (R&D) of energy technology, marketing of federally produced power, promotion of energy GALE ENCYCLOPEDIA OF AMERICAN LAW, . Clause: it pre- vented only the creation of official religions. “I cannot see how an ‘official religion’ is established GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENGEL V. VITALE 167 by letting