CIVIL RIGHTS POLICIES, ANALYSIS, AND RESOURCES
The Civil Rights Domain tracks and reports on policies that deal with voter rights, police brutality, free speech, the right to privacy, and other human rights enshrined in our constitution. This domain tracks policies emanating from the White House, the Justice Department, Department of Homeland Security, the Department of Housing and Urban Development, and state legislatures. Our Principal Analyst is Rod Maggay who can be reached at firstname.lastname@example.org.
Latest Civil Rights Posts
Brief #152—Civil Rights
By Rod Maggay
On February 18, 2021 Rep. David Cicilline (D-RI) introduced H.R. 5 in the House of Representatives. The bill is popularly known as the Equality Act and had been introduced in various forms in previous sessions of Congress. The bill seeks to “prohibit discrimination on the basis of sex, gender identity and sexual orientation, and other purposes.” The text of the bill uniquely specifies and amends the Civil Rights Act of 1964 to state that discrimination on the basis of gender identity and sexual orientation are protected categories under that law. In addition to adding these new protected categories to that landmark law the bill also expands coverage for discrimination on the basis of sexual orientation and gender identity to the Equal Credit Opportunity Act, the Jury Selection and Services Act housing and education laws and a number of other federally funded programs. And finally, the bill states specifically that the Religious Freedom Restoration Act (RFRA) of 1993 cannot be used to challenge a provision in the Act and cannot be used as a defense to a claim of unlawful discrimination under the Act. On February 25, 2021, the House of Representatives voted to pass the bill by a 224 – 206 vote. The bill was then sent to the Senate for a vote in the coming weeks. LEARN MORE
California Introduces Bill Banning Non – Disclosure Agreements (NDA’s) In Workplace Discrimination Cases
Brief #151—Civil Rights
By Rod Maggay
On February 8, 2021 California State Senator Connie Leyva (D-Chino) introduced Senate Bill (SB) 331, popularly known as the Silenced No More Act. The bill is intended to supplement the Stand Together Against Non – Disclosures (STAND) Act which was also introduced by State Senator Leyva and which was signed into law in California in 2018.
Brief #150—Civil Rights
By Rod Maggay
On January 3, 2021 Vice President Michael Pence administered the oath of office to six new senators who had been elected in the November 2020 elections. Additionally, those senators who had won re – election in November were also sworn in. Two days later, elections were held in Georgia for both of Georgia’s Senate seats and a Democrat won each race. Their victories ensured that seats in the U.S. Senate would be equally split between Republicans and Democrats 50 – 50. Kamala Harris’ election as Vice – President gave the Democrats the ability to cast the tie – breaking vote if any vote in the chamber resulted in a tie.
Brief #149—Civil Rights
By Rod Maggay
During the 2020 presidential election campaign then Democratic Presidential Candidate Joe Biden said on the TV program 60 Minutes, “The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want.” Biden was responding to talk over a replacement for Brief Justice Ruth Bader Ginsburg who had passed away in September 2020. Republicans were then in control of the Senate and were pushing to speedily confirm nominee Amy Coney Barrett. Barrett was eventually confirmed to the Supreme Court with less than a week until the November 3, 2020 election.
Brief #148—Civil Rights
By Rod Maggay
On January 20, 2021 President Joe Biden issued “Executive Order On Ensuring A Lawful And Accurate Enumeration and Apportionment Pursuant to the Decennial Census.” This was the second executive order President Biden signed after being inaugurated earlier in the day. The executive order in Section 5 specifically revokes President Trump’s Executive Order No. 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census) and Presidential Memorandum of July 21, 2020 (Excluding Illegal Aliens From The Apportionment Base Following The 2020 Census).
Brief #146—Civil Rights
By Rod Maggay
Under Article II, Section 1, Clause 2 of the U.S. Constitution each individual State has the power to appoint the slate of electors who will vote in every presidential election. The Federal Government has no role in a State’s selection of its slate of presidential electors.
Policy Summary: On February 18, 2021 Rep. David Cicilline (D-RI) introduced H.R. 5 in the House of Representatives. The bill is popularly known as the Equality Act and had been introduced in various forms in previous sessions of Congress. The bill seeks to “prohibit discrimination on the basis of sex, gender identity and sexual orientation, and other purposes.” The text of the bill uniquely specifies and amends the Civil Rights Act of 1964 to state that discrimination on the basis of gender identity and sexual orientation are protected categories under that law. In addition to adding these new protected categories to that landmark law the bill also expands coverage for discrimination on the basis of sexual orientation and gender identity to the Equal Credit Opportunity Act, the Jury Selection and Services Act housing and education laws and a number of other federally funded programs. And finally, the bill states specifically that the Religious Freedom Restoration Act (RFRA) of 1993 cannot be used to challenge a provision in the Act and cannot be used as a defense to a claim of unlawful discrimination under the Act.
On February 25, 2021, the House of Representatives voted to pass the bill by a 224 – 206 vote. The bill was then sent to the Senate for a vote in the coming weeks. LEARN MORE
Policy Analysis: The Equality Act that was introduced in 2021 is one of the legislative priorities that President Biden promised during his presidential campaign. While the stated purpose of the bill is straightforward in that it seeks to “prohibit discrimination on the basis of sex, gender identity and sexual orientation” a closer examination of the text of the bill reveals that the bill is not as open – ended as it may seem on the surface. The bill directly targets existing federal laws that may be vulnerable to unexpected interpretations and seeks to get out in front of these gaps in the law in order to provide more clarity on the application of the law in the future.
By directly including gender identity and sexual orientation in the Equality Act, the bill is directly responding to the Bostock v. Clayton County Supreme Court employment discrimination case that was decided last year. That case provided protections to lesbian, gay and transgender persons. Nowhere were gender identity and sexual orientation included in the case. So, in order to prevent those categories of persons being left out, they were specifically mentioned in the Equality Act in order that they not be left out and vulnerable to discrimination claims in a future interpretation of the case that might omit them. The law is so often open to opposing interpretations and this bill clarifies what a future interpretation must include.
While mandating that gender identity and sexual orientation must be included in discrimination claims under the Civil Rights Act of 1964 the bill then expands those protections into a number of areas that were not previously covered. The protections against discrimination on those bases now extend into financial credit, service on juries and “public accommodations” like retail shops and stadiums. This bill seeks more comprehensive coverage against discrimination on the basis of gender identity and sexual orientation and the fact that this bill is national in scope will provide that since twenty – seven (27) states do not currently provide LBGQT anti – discrimination laws.
Finally, the bill anticipates the counter argument from religious supporters that protections against discrimination on the basis of gender identity and sexual orientation violates religious liberty by specifically eliminating the use of the Religious Freedom and Restoration Act (RFRA) of 1993 as a basis to challenge the Act and to use it as a defense when accused of discrimination. That law states that the federal government cannot substantially burden a person’s exercise of religion but the law has come under fire recently. Supporters of religious liberty often cite that law as a way to avoid complying with laws they disagree with, such as laws in support of LGBQT rights. The RFRA did not anticipate this recent situation. The Equality Act handles this by stating specifically that the RFRA can no longer be used as a defense in these kinds of discrimination cases.
There likely is a fight brewing in the Senate (and maybe in the courts down the road) but for now the Equality Act does what it can to include gender identity and sexual orientation as protected categories, expand those protected categories in various areas of social life and across the nation where states have not provided protections for the LGBQT community and in declaring that religious liberty cannot be used to deprive LGBQT persons of basic civil rights. It is now up to the Senate to vote in support of the Equality Act. LEARN MORE, LEARN MORE, LEARN MORE
Human Rights Campaign – non – profit group advocating for Equality For All.
American Civil Liberties Union (ACLU) – non – profit group’s webpage on LGBQT non – discrimination protections.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
California Introduces Bill Banning Non – Disclosure Agreements (NDA’s) In Workplace Discrimination Cases
Policy Summary: On February 8, 2021 California State Senator Connie Leyva (D-Chino) introduced Senate Bill (SB) 331, popularly known as the Silenced No More Act. The bill is intended to supplement the Stand Together Against Non – Disclosures (STAND) Act which was also introduced by State Senator Leyva and which was signed into law in California in 2018.
The 2018 STAND Act banned the use of secret settlements and non – disclosure agreements (NDA) in cases of sexual misconduct in both the private and public workplace in California. The STAND Act applied only to sexual misconduct incidents and includes sexual assault and sexual harassment. The 2021 Silenced No More Act goes further and extends the ban of the use of secret settlements and NDAs to all protected categories of discrimination as well as incidents of harassment. This bill would now prevent employers, as part of a settlement of legal claims, from requiring an employee to sign a non – disclosure or confidentiality agreement if the employee is the victim of discrimination on the basis of race, ethnicity, sexual orientation, age, disability and religion while at work. The bill is scheduled to be analyzed in a state senate committee in mid – March and after passage in committee and likely passage in the state senate the bill will be sent to the CA Assembly. Due to the popularity of the 2018 STAND Act, Governor Newsom is expected to sign the bill into law but not until early Fall 2021 at the earliest. LEARN MORE, LEARN MORE
Policy Analysis: The 2018 bill introduced by State Senator Leyva was partly due to the #MeToo movement that erupted in 2017. Far too often, powerful men who had been accused of sexual misconduct used secret settlements and NDAs to prevent their accusers from speaking about the facts underlying their accusations. Hollywood producer Harvey Weinstein used NDAs to keep his predatory sexual behavior from becoming public and to protect his career all while continuing to engage in the same predatory sexual behavior against other women. And, the tactic of silencing women from revealing what happened was even used by President Donald Trump to protect him from the accusations of a number of women even before his election in 2016. Women who broke these agreements would often be sued which created a chilling effect for women who wanted to speak out on their experiences and try to help other women who found themselves in a similar position.
But the tactic of using NDAs was not used only for sexual misconduct cases. The STAND Act introduced by State Senator Leyva expands the law by banning NDA’s in instances of discrimination and harassment. Too many times, employees who had suffered harassment or discrimination based on one of the protected categories had to sign an NDA when the case was settled. That led to the same problem that emerged in the use of NDAs in sexual misconduct cases – that the employer would not be punished for the initial behavior and could continue with the offensive behavior. Additionally, the victim would be vulnerable to being sued for violating the NDA or confidentiality agreement by merely speaking out. State Senator Leyva’s bill seeks to include harassment and discrimination as a category that cannot use NDA’s to silence victims. As with the 2018 STAND Act, the expansion of that law with SB 331 to include workplace harassment and discrimination is a critical component to help prevent workers from being silenced and encourage them to speak out on unacceptable conduct. And, it encourages accountability of behavior of powerful employers who preyed on women, which had been going on in the workplace unchecked for far too long. LEARN MORE, LEARN MORE
Workplace Fairness – workers rights organization’s infopage on NDA’s.
Harvard Business Review – article in respected business journal advocating for change in use of NDA’s.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
Policy Summary: On January 3, 2021 Vice President Michael Pence administered the oath of office to six new senators who had been elected in the November 2020 elections. Additionally, those senators who had won re – election in November were also sworn in. Two days later, elections were held in Georgia for both of Georgia’s Senate seats and a Democrat won each race. Their victories ensured that seats in the U.S. Senate would be equally split between Republicans and Democrats 50 – 50. Kamala Harris’ election as Vice – President gave the Democrats the ability to cast the tie – breaking vote if any vote in the chamber resulted in a tie.
With the Senate chamber equally divided, the chamber adopted new rules. The “Organizing Resolution,” as it is popularly called, is a power sharing agreement that details how the chamber would operate with an equally divided Senate. The most significant portion of the agreement deals with the make up of the senate committees and how business would be conducted in the committees and the various subcommittees that make up the whole committee. The resolution states that membership of the committees and subcommittees would have an equal number of Senators from each party. And, since control of the chamber rests with the Democrats and the recently elected Democratic Vice President, the chairman or chairwoman of each committee, or “the one who holds the gavel,” will be a Democrat. Since the Republicans had been in control of the Senate the last six years, Republicans had more members on committees and they had been the chairman or chairwoman of every committee in the Senate during that time period. LEARN MORE
Policy Analysis: The Organizing Resolution, which passed by unanimous consent on February 3, 2021, is significant because of the rules it lays out regarding committees for the Senate for this session.
There is a common misconception that bills that are introduced in the Senate or the House get a full vote by the Congressional chamber but that is not the case. (There are rare exceptions like the reconciliation process to pass budget bills). After being introduced in the Senate, bills get assigned to the Senate committee that has jurisdiction over the subject matter of the bill. That committee and its members review the bill, make amendments and sometimes hold hearings to gather more information. If the committee votes to “report” the bill then the bill is sent to the full Senate chamber for a vote by the entire chamber. But if the bill is “not reported” then the bill “dies in committee” and there is no further action on the bill. This happens frequently especially when committee members vote on party lines. When Republicans were the majority in the Senate, committees were comprised of twenty-one members – eleven Republicans and ten Democrats. If Republicans did not approve of a bill, they often voted against it in committee, which effectively killed the bill’s chances.
With the even split in the Senate, the chances of Democrats advancing their legislative priorities have now increased. With Democrats now taking control of committee chairmanships they can control what is on the agenda for the committees. Republicans had often refused to schedule committee hearings for bills and other business that was not in line with their legislative priorities. Even before the passage of the Organizing Resolution, Republicans still took an obstructionist stance as when Sen. Lindsey Graham (R-SC) refused to schedule a hearing for Merrick Garland, Biden’s nominee for Attorney General. But now that committee chairmanships have been transferred to Democrats, government business can no longer be held up with this tactic.
With membership in committees equally divided and the prospect of bills dying in committee not likely to happen during this Senate session, the question arises as to what will happen if there are tie votes in subcommittees and later in full committees. Instead of party line votes that could kill a bill, tie votes will now be sent to the full committee for a vote there. And if there is another tie, the status of a bill will be sent to the full chamber where a vote will be taken whether to place it on the calendar for a full vote. This is key because now the full Senate can vote on bills. There are often hundreds of bills every session that never make it out of committee for consideration. Senators who are not a member of a relevant committee often never even hear about a bill much less get a chance to vote on it. But that will not be the case anymore. As long as the Senate is equally split, committees can no longer hold up a bill. Unless outright defeated in a committee vote, bills that pass or end up tied will finally make it to the Senate floor where the entire chamber can review the merits of the bill. And with Democrats in charge of committees by virtue of their appointment to committee chair posts, they will control what bills will get a hearing and a vote. This will result in the Democratic Party and the Biden Administration having a better chance of advancing their legislative priorities in this Congressional session. LEARN MORE, LEARN MORE
United States Senate Committees – webpage of Senate committees.
GovTrack.us – full text of the Senate’s 2021 Organizing Resolution.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
Policy Summary: During the 2020 presidential election campaign then Democratic Presidential Candidate Joe Biden said on the TV program 60 Minutes, “The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want.” Biden was responding to talk over a replacement for Justice Ruth Bader Ginsburg who had passed away in September 2020. Republicans were then in control of the Senate and were pushing to speedily confirm nominee Amy Coney Barrett. Barrett was eventually confirmed to the Supreme Court with less than a week until the November 3, 2020 election.
In response to the speed of the Barrett nomination and confirmation to the Supreme Court Biden came under pressure, notably from the Progressive wing of the Democratic Party, to expand the Supreme Court. The Barrett nomination helped cement a 6 – 3 conservative majority on the Court and there were fears that the Court could make changes or outright reverse abortion and LGBQT rights, among others. In response, Biden promised a commission to examine possible reforms to the Supreme Court and the federal judiciary.
Policy Analysis: President Biden has already begun staffing the commission with some notable names emerging. Reports are that Biden campaign lawyer Bob Bauer will co – chair the commission along with Christina Rodriguez, a Yale law school professor. Jack Goldsmith, a Harvard law professor, and Caroline Frederickson, a former president of the American Constitution Society, have also been mentioned as persons being appointed to the commission.
The formation of the commission, which has yet to be formally announced, and the staffing of the committee signals that President Biden is willing to listen to the concerns of the Progressive wing of his party who want to implement change in the wake of the Barrett confirmation. But his choices for staffing the commission also signal that he is open to all proposals and not just the “court – packing” option. “Court – packing” refers to the tactic of adding additional seats to the Supreme Court and has become a talking point among Democrats because of how they feel that a Supreme Court seat was stolen from them due to McConnell’s actions on the Merrick Garland and Amy Coney Barrett nominations. But while this has been a popular proposal with some Democrats, President Joe Biden has admitted that he is “not a fan of court packing.” With the other members of the commission so far, it is becoming clear what proposals they support. Caroline Frederickson supports expanding the Supreme Court while Bob Bauer supports term limits for federal judges. But could there be other proposals or suggestions?
The court – packing and term limit proposals have received the most attention and pushback from opponents but there is a proposal not mentioned that should be a point of consideration by the commission. In order to reform the federal judiciary and the Supreme Court the commission should consider the experience a nominee has with conducting trials either as a district court judge or as a litigator. In – court trial work is a factor when the American Bar Association rates persons nominated to the federal bench and so this experience of understanding what people involved in a lawsuit go through should be considered. By emphasizing in – court trial work the Biden commission can limit nominees who are simply party idelologues and instead encourage justices and judges who know what it takes to work with people and solve their everyday problems. Chief Justice John Roberts and Justice Brett Kavanaugh are people certainly well – versed in the law and bright persons but much of their career lacks in – court trial work because they had been spent years working in Republican administrations. They can recite the law according to their political party but may be inexperienced in how the application of the law affects the ordinary person on the street.
If Biden’s commission is to make any real change to the Supreme Court and the federal judiciary as a whole, it needs to consider whether the courts and the people who are nominated to the bench can connect with ordinary citizens. Adding additional seats to the Supreme Court and limiting the period for how long judges can serve are valid proposals but making a concerted effort to select justices and judges who have first had experience dealing with ordinary people and their daily problems and concerns in trial court can go a long way in reforming the judiciary and making it more responsive to what a person needs when they have their day in court. LEARN MORE, LEARN MORE
American Bar Association (ABA) – association’s webpage on its Standing Committee on the Federal Judiciary and how it rates nominees to the federal bench.
Demand Justice – non – profit group seeking to reform the Supreme Court.
Policy Summary: On January 20, 2021 President Joe Biden issued “Executive Order On Ensuring A Lawful And Accurate Enumeration and Apportionment Pursuant to the Decennial Census.” This was the second executive order President Biden signed after being inaugurated earlier in the day. The executive order in Section 5 specifically revokes President Trump’s Executive Order No. 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census) and Presidential Memorandum of July 21, 2020 (Excluding Illegal Aliens From The Apportionment Base Following The 2020 Census).
The executive order clarifies, with reference to Constitutional language and Supreme Court precedents, that the President will submit to Congress a report with “the tabulation of total population by State that reflects the whole number of persons whose usual residence was in each State.” This differs markedly from ex – President Trump’s executive orders because it will not consider a person’s citizenship status in order for the person to be counted and will revert to the previous method of counting “whole number of persons.” LEARN MORE
Policy Analysis: President Biden’s revocation of the two actions taken by ex – President Trump is a clear rebuke from how Trump tried to politicize the activities of the process of counting persons for the decennial census. When Trump took office, the law was clear. In order to apportion seats for the House of Representatives the count of persons would be the whole number of persons without regard for a person’s immigration or citizenship status. This was the standard since the adoption of the Fourteenth Amendment nearly one hundred fifty years ago. But when Trump came into office he tried to appeal to those voters who were wary of immigrants and who wanted tougher anti – immigration policies. By trying to include a question on citizenship status on the census questionnaire and exclude illegal aliens from the apportionment base Trump sought to do two things. First, he tried to discourage immigrants from responding to the questionnaire. Because of fear of government inquiry, immigrants who were not citizens would not be inclined to respond to any kind of government requests. The lack of participation would then skew the numbers of persons living in the State, as they would not be counted in the final state totals. This could have impacted how many representatives a State would get in the next apportionment. Second, Trump’s Presidential Memorandum took the next logical step and tried to exclude illegal aliens from being counted at all. The likely result of these actions would be an inaccurate apportionment of Representatives by State and an allocation of financial resources in areas that would not be representative of their need because of the inaccurate population count.
President Biden’s executive actions will likely reset the decennial census activities in a manner that is more reflective of how the census had been lawfully conducted in the past and distance it from the partisanship that Trump tried to inject in them. Instead of the divisive actions that sought to marginalize immigrant groups President Biden’s executive order seeks to ensure that every inhabitant of this country will have representation in the House of Representatives and that the process in counting persons and apportioning representatives reverts to the time – tested and lawful practices that had been used through the years. LEARN MORE, LEARN MORE
American Civil Liberties Union (ACLU) – infopage on 2020 Census.
Brennan Center for Justice – infopage on group’s litigation efforts regarding the 2020 Census.
Policy Summary: On January 7, 2021 President – elect Joseph R. Biden, Jr. nominated Judge Merrick Garland to the position of Attorney General of the United States.
Judge Garland had first served in the Department of Justice (DOJ) from 1979 – 1981 where he was special assistant to Attorney General Benjamin Civiletti during the Carter Administration. In 1993 he returned to DOJ as deputy assistant attorney general in the Criminal Division. While in this position he oversaw prosecution of domestic terrorism cases, notably the 1995 bombing of the federal building in Oklahoma City and the 1996 Atlanta Olympic bombings in Centennial Park.
In 1995, President Bill Clinton nominated Judge Garland to a seat on the United States Court of Appeals for the District of Columbia. However, Republicans in the Senate did not schedule a vote on his nomination at that time. After President Clinton was re – elected in 1996 he re – nominated Mr. Garland again to the same seat where he was confirmed 76 – 23 by the Senate. Judge Garland served on the court and even was promoted to Chief Judge of the court from 2013 to 2020. In 2016, President Barack Obama nominated Judge Garland to the Supreme Court of the United States in the wake of the death of Justice Antonin Scalia in February 2016. However, Republicans in the Senate, led by Sen. Mitch McConnell (KY-R), refused to consider the nomination and preferred to wait for the outcome of the election which was eleven months away. After President Trump won the election, Judge Garland’s nomination expired and President Trump selected Neil Gorsuch to replace Justice Scalia. Judge Garland returned to the U.S. Court of Appeals for the District of Columbia where he continues to serve as a judge.
Policy Analysis: The nomination of Judge Garland to become the next Attorney General of the United States is a surprise pick in that there were other candidates who had significant support and were favored to receive the nomination. But the choice is not an unwelcome choice given Judge Garland’s credentials and what he can bring to the position at the start of Joe Biden’s presidency.
Judge Garland’s nomination illustrates how President – elect Biden wants to steer the DOJ after the tumultuous years of the Trump presidency. In his remarks introducing Judge Garland as his nominee Biden stated the “[N]eed to restore the honor, the integrity, the independence of the DOJ of this nation that has been badly damaged.” He also went on to say that “You are not the president’s or the vice – president’s lawyer. Your loyalty is not to me. It’s to the law, the Constitution and the people of this nation.” These statements are a clear rebuke to the leadership of the DOJ the last four years.
How does this relate to the nominee himself? The pick of Judge Garland signals that partisanship will no longer be a factor in the day to day operations of the department and that an emphasis will be placed on professionalism and ethical behavior. Tom Goldstein, writer of the popular SCOTUSblog, has called Judge Garland the model of a neutral judge and the judge has won acclaim as a jurist who can work with all judges as found by his court rulings and opinions that have a low rate of dissenting opinions from other colleagues. His nomination also signals that highly contested issues will be dealt with an eye towards following the rules and evidence wherever it may lead instead of investigations where some groups demand a specific result. From his first day as Attorney General, there will be ongoing investigations of President Trump’s obstruction of justice incidents (including the president’s incitement of the riot at the Capitol the day before Biden’s announcement of his Attorney General nominee), allegations of tax fraud by the president and a criminal tax probe of Biden’s son Hunter. With Judge Garland likely leading the Justice Department, Americans can feel much more comfortable that these issues will be investigated and handled in a professional and neutral manner instead of in the haphazard partisan way that President Trump wanted. And this is the key in the Judge Garland nomination – that the Justice Department will return to serving the best interests of this nation and her citizens instead of the selfish whims of a President who was looking only to shield himself from criticism and criminal liability on a number of different fronts. Judge Merrick Garland should be confirmed as soon as possible so the Department can turn the corner on the last four years of the Trump presidency. LEARN MORE, LEARN MORE
Department of Justice Office of the Attorney General – news and speeches from OAG.
American Bar Association (ABA) – 2016 report of Judge Garland’s qualifications, integrity and professionalism when he was nominated to the Supreme Court.
Policy Summary: Under Article II, Section 1, Clause 2 of the U.S. Constitution each individual State has the power to appoint the slate of electors who will vote in every presidential election. The Federal Government has no role in a State’s selection of its slate of presidential electors.
On February 23, 2006 the group National Popular Vote introduced their plan for a proposed interstate compact entitled “Agreement Among the States to Elect the President by Nationwide Popular Vote.” The plan was formulated by Dr. John Koza, a former professor at Stanford University, and was initially endorsed by a number of former Republican and Democratic politicians. The plan would be an agreement by a number of states to award all of their selected presidential electors to whoever wins the popular vote nationwide. The goal is to sign on as many states whose total number of electors would be more than 270 since a candidate must win more than 270 electors to win the presidency. On April 10, 2007 the State of Maryland became the first state to enter the compact when the National Popular Vote bill was signed into law by Governor Martin O’Malley after having passed both houses of the Maryland Legislature. On January 13, 2008, the State of New Jersey became the second state to enter into the compact after Governor Jon Corzine signed it into law.
Since the time those two states entered into the National Popular Vote Compact an additional 14 jurisdictions have entered into the agreement – an additional thirteen states and the District of Columbia. The total number of electoral votes from these 16 jurisdictions is 196. The interstate compact needs an additional 75 electoral votes (for a grand total of 271) to go into effect.
As of December 2020 and by the count of the National Popular Vote group of the remaining states that have not officially entered the compact, a National Popular Vote bill has passed at least one legislative chamber in nine states (AR, AZ, ME, MI, MN, NC, NV, OK, VA) that have eighty – eight (88) electoral votes combined. LEARN MORE
Policy Analysis: With the recent vote by the Electoral College to affirm Joe Biden’s victory over Donald Trump in the 2020 U.S. Presidential Election discussions about the role of the Electoral College have sprung up again. This time the discussion was a little more subdued and did not have the controversy of the 2016 election since Mr. Biden won both the popular vote and the Electoral College vote, which had not been the case in 2016 when Mr. Trump was elected. But with Mr. Biden’s razor – thin margins in states like Georgia and Pennsylvania and the likelihood that President Trump could have won re-election had he won those states the discussion turned to how to correct the flaws that are inherent in the Electoral College. Could a candidate who lost the nationwide popular vote win the presidency again?
The National Popular Vote Compact is one of the more intriguing proposals because of the support it has garnered. The fifteen states and the District of Columbia have been a good foundational step to get the interstate compact moving. But after closer inspection of the other states who have not joined yet the truth is that support for this compact is much more significant than what is being acknowledged on the surface.
Of the nine states comprising 88 electoral votes the bill has been approved in at least one legislative chamber, which means that there is some support for the bill in those states. And these are not states where Democrats are in control of the government. Arizona, Arkansas and Oklahoma are traditionally Republican states while Virginia and North Carolina are swing states that have voted both blue and red in recent years. In Nevada the National Popular Vote bill actually passed both state legislative houses but did not become official because Democratic Governor Steve Sisolak vetoed the bill. And in Colorado just this past election in November voters voted on whether to stay in the interstate agreement and the ballot measure passed with 52% voting to remain in the National Popular Vote Compact. (Colorado had officially joined in 2019 but the issue proved contentious and the issue was placed on the 2020 ballot for Colorado voters to vote on.).
What all of this information means is that this proposal is not a Democrat proposal or a Republican proposal. This plan has had bipartisan support from the beginning and has had bipartisan support as it has made its way through various state legislatures. And it has proven to have wide appeal as evidenced by the fact that it has passed at least one legislative chamber from states in various regions of the country and even has grassroots level support as evidenced by the 2020 ballot measure in Colorado. This indicates that support to reform the presidential election process is growing even if it has not cleared all of the bill enactment procedures in a number of states yet. The goal for the National Popular Vote Group is to continue lobbying state legislators in the remaining states and add enough states in order to surpass the 270 electoral vote threshold. There is real support behind this movement and once this agreement can add enough states the unique situation of installing a president who lost the nationwide popular vote can finally be discarded from the American political experience. LEARN MORE, LEARN MORE, LEARN MORE,
National Popular Vote – group pursuing National Popular Vote Compact to reform U.S. Presidential Elections.
Policy Summary: Under Article II, Section 2 of the U.S. Constitution, the President of the United States has “the Power to grant Reprieves and Pardons for offenses against the United States, except in Cases of Impeachment.” This power is vested exclusively in the President and only applies to federal crimes. A president has no authority to pardon persons convicted of crimes under state laws. That would be the responsibility of the state governor where the state crime was committed.
On August 5, 1974, Acting Assistant Attorney General Mary Lawton of the Office of Legal Counsel issued a memorandum opinion titled Presidential or Legislative Pardon of the President. The purpose of the memo was to clarify legal questions with regard to a possible pardon for then President Richard Nixon. President Nixon was facing calls for his impeachment in connection with the Watergate burglary. (President Nixon would resign five days later). Her memo took the position that the President would likely be unable to issue a pardon for himself. And as for a possible legislative pardon, she took the position that Congress could not enact a legislative pardon as this would probably be in conflict with the President’s exclusive pardon power under the Constitution.
During the Trump Presidency author Jack Goldsmith has calculated that the President, as of November 10, 2020, has issued forty-one pardons or commutations of sentences. 88% of these pardons and commutations have a personal or political connection to the President. On June 4, 2018 on his Twitter account President Trump claimed that he had the absolute right to pardon himself. With the end of the Trump Presidency in sight, President Trump has granted a full pardon to General Michael T. Flynn with more expected in the coming weeks, including a likely contentious pardon to all of his adult children for their work and activities during the Trump Presidency. LEARN MORE
Policy Analysis: The Constitution is clear that the power of the pardon resides with the President of the United States. There are no conditions or limitations attached to the power such as having to confer with Congress first or having his pardons be approved by the Supreme Court. The current process to request a presidential pardon through the Office of the Pardon Attorney in the Department of Justice requires submitting the request through this office for evaluation. A recommendation is drawn up and sent to the President but as a practical matter the President’s decision to issue a pardon is up to him. He does not have to follow the recommendation of the Office of the Pardon Attorney and can issue a pardon to whomever he chooses even if the request did not originate in the Office of the Pardon Attorney.
This brings up the thorny question as to whether the President can issue a pardon to himself. The memorandum opinion authored by Ms. Lawton more than forty years ago starts off with a fundamental principle of American law. That no one in America, even the President, should be a judge in his own case. This is a key principle because it supports the notion that everyone should be able to have a fair and neutral person, such as a judge, examine the facts of their accusations and be able to come to a reasoned conclusion as to the innocence or guilt of that person. President Trump’s assertion that he can issue a pardon for himself completely upends this principle and his assertion should be categorically rejected. It defies not just the legal rationale of having neutral judges decide disputes but also common sense. If President Trump can issue a pardon to himself that would mean that there would be no mechanism to hold the President accountable for acts he undertakes. Acts that would not be for the benefit of the United States could be authorized and then after the fact wiped clean from the President’s record so that he would not be responsible for it in any way. As an analogy, ordinary citizens accused of crimes do not have the power to decide for themselves to absolve themselves of crimes that they commit. They must answer to a neutral judge in open court. Just because a person has risen to the Office of the President does not mean that the laws should no longer apply to him.
If President Trump is to be held accountable for possible crimes he may have committed than the President should answer before a neutral judge just like all other ordinary Americans do. The power to grant a pardon to himself should not be a power that a President should be able to exercise no matter the circumstances. LEARN MORE, LEARN MORE
DOJ Office of the Pardon Attorney – website of the office handling pardon requests.
Pew Research Center – research institute providing comparison of statistics on presidential pardons.
Roman Catholic Diocese of Brooklyn v. Cuomo Decision Hints At Future of Religious Liberty Cases In Supreme Court
Policy Summary: In response to the COVID-19 pandemic Governor Andrew Cuomo of the State of New York enacted regulations that allowed him to identify “hot spots” of COVID-19 activity and to designate areas according to a color – coded scheme. Each colored zone would correspond to a level of restrictions that were designed to limit the number of persons in a gathering, among other restrictions, due to COVID-19. Red zones have the strictest restrictions on the gathering of people and operations of commercial businesses. Areas classified as orange would be areas immediately surrounding red zones and have a less limited tier of restrictions. And yellow zones would be the outlying areas of red zones and have the least strict restrictions.
The Roman Catholic Diocese of Brooklyn and Agudath Israel of America brought a lawsuit in Federal District Court arguing that the limitations of 10 people in red zones and 25 people in yellow zones for houses of worship were violations of the First Amendment’s Free Exercise Clause and asked for a preliminary injunction against the State from enforcing these COVID-19 based restrictions. The Federal District Court ruled against the houses of worship and the case was appealed to the Court of Appeals for the Second Circuit which denied the petitioners request to issue an injunction. The case was appealed to the Supreme Court which issued an unsigned majority opinion issuing an injunction against the State of New York from enforcing the maximum persons regulations. While the majority opinion was unsigned six written opinions total were issued from the case (the majority opinion, three concurring plus two dissenting opinions). LEARN MORE
Policy Analysis: While this case was technically a procedural case which was to decide whether a temporary injunction should be issued, the discussion of religious freedom and liberties emerged front and center and it revealed how cases on religion in the future might go at the High Court.
The dissenting opinion penned by Justice Stephen Breyer emphasizes forcefully that the deadly nature of COVID-19, the current spike in infections and the uncertainty caused by this pandemic are serious health considerations that needed immediate attention which in turn led to the color – coded regulations imposed by Governor Cuomo. This was not an assault on the Constitution or First Amendment rights as Justice Gorsuch implied but an attempt to save as many lives as possible which Chief Justice Roberts recognized when he said his dissenting colleagues “simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”
Yet the concurring opinions of Justices Gorsuch and Kavanaugh signal an approach to First Amendment religion cases that could be troubling down the road. Both Justices view the free exercise of religion as a highly cherished right, as well they should, but they also showed they are reluctant to side against religion even if the exercise of religion might lead to harm to outside third parties. If they are unwilling to uphold limited restrictions and limitations to save human lives in this case then it seems likely that they will side with religion again in highly contested freedom of religion cases. Objections to act or perform duties based on religious beliefs have been used in cases to deny marriage licenses to gay couples, to deny health care services to patients, to discriminate against foster parents and potential adoptions and to even deny contraception in health insurance benefits. If a deadly virus is not enough to convince justices that limited restrictions and limitations are necessary in a situation in New York than it seems likely that these justices will mostly favor religion when it comes to the religious freedom vs. do not harm third parties debate. With this case, that seems like the direction the Supreme Court will be headed especially with a new conservative and deeply religious justice – Amy Coney Barrett – recently installed. LEARN MORE, LEARN MORE
- Americans United for Separation of Church and State – press release on Supreme Court NY case.
- American Civil Liberties Union (ACLU) – blog post on issues of faith based discrimination.
NAACP In Michigan Lawsuit Turns The Tables And Claims President Trump Is The One Engaging In Voter Fraud
Policy Summary: On November 20, 2020 the NAACP Legal Defense Fund filed a lawsuit on behalf of three African – American voters in Michigan contending that President Trump and his campaign team in Michigan are trying to suppress the votes of Black voters in the state. The lawsuit alleges that the President and campaign officials are pressuring state and local officials to not tally votes from Wayne County in the state. Wayne County encompasses the city of Detroit, which has a significant number of African – American residents. Joe Biden won the state over President Trump with just over 150,000 votes. In Wayne County, Biden’s margin over the President was over 333,000 votes.
Section 11(b) of the Voting Rights Act of 1965 provides:
No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 3(a), 6, 8, 9, 10, or 12(e).
The case, brought in the United States District Court for the District of Columbia, alleges President Trump and his campaign officials in Michigan are in violation of Section 11(b) of the Voting Rights Act of 1965. LEARN MORE, LEARN MORE
Policy Analysis: In the aftermath of the November 3rd election and when it became increasingly likely that President Trump would not win re – election to a second term the President brought a number of lawsuits in key swing states hoping to show that vote tallies were not accurate. The President believed that the only reason that he trailed in a number of states was because of voter fraud brought on by the use of mail ballots and the inability of poll observers to watch the tabulation process. The President even concluded that there must have been voter fraud because of the razor thin margin of votes between him and Mr. Biden in some states. However, the President and his team did not have any evidence of this fraud and the courts dismissed many of the cases.
The lawsuit brought by the NAACP in Michigan stands out because it is a case that has not been brought by the President but brought directly against him. And it turns the table on the President and his voter fraud arguments because while the President has been the one who has constantly screamed voter fraud and irregularities in the voting process this lawsuit shows that the President himself is the one who is denigrating the democratic voting process. Section 11(b) of the Voting Rights Act of 1965 is clear that acts of intimidation, threats and coercive attempts against persons for voting are not permitted. Nor are acts of intimidation and threats permitted against election officials for performing the duties of their office. Yet here we have President Trump and his campaign team engaged in acts of intimidation and coercion. Trump has personally called a number of Michigan legislators to “discuss” with them the certification of the election for Joe Biden and has even discussed with aides who else in other states he can call to discuss delays in certification of the election. It is clear that President Trump is trying to exert pressure on these local officials in an effort to manipulate the results of the election in his favor. But the fact remains that hundreds of thousands of people in Michigan cast their ballots and chose Joe Biden over Mr. Trump. By trying to not have their votes counted so he can claim victory in Michigan President Trump is engaging in the kind of voter suppression that only leads to a distortion in the true will of an electorate and is exactly the kind of voter fraud that President Trump has been complaining about (falsely it appears) all along. In this case in Michigan the NAACP lawsuit perfectly shows that acts of voter fraud and suppression are being encouraged by none other than President Trump himself. The lawsuit has just been filed but it will help to illustrate that the President’s claim of voting irregularities are meritless. LEARN MORE, LEARN MORE, LEARN MORE
- Brennan Center for Justice – blog post on Trump’s tactics to delay certification of election in swing states.
- Verified Voting – group advocating for the responsible use of technology in elections.