Scot Wilson, Author at Close Up Foundation

156 Years and Counting: Reparations for Slavery in 2021

Posted on February 24, 2021June 21, 2024 by Scot Wilson

In the wake of this past summer’s demonstrations and civil unrest spurred by accusations of wrongful police killings and systemic racism, Congress is considering legislation regarding reparations for Black Americans who are descended from enslaved people. The bill, H.R. 40: Commission to Study and Develop Reparation Proposals for African Americans Act, was introduced by Representative Sheila Jackson Lee, D-Texas. It does not detail a specific set of reparations; rather, it seeks to establish a commission of elected officials and scholars who would explore the options available and determine the extent to which, if at all, the federal government owes compensation for the economic impacts of slavery on Black Americans.¹

The concept of reparations is not a new idea. It has been debated for centuries, even before the Civil War ended and the nation officially abolished slavery.² The H.R. 40 reparations bill is also not new, having been introduced by Lee in 2019 under the same title.³ What sets the current conversation apart is that for the first time ever, the White House has expressed direct support for establishing a commission on reparations, with press secretary Jen Psaki stating that President Joe Biden supports such a study.⁴

Complicated, But Not Unprecedented

The U.S. government has never given any direct compensation, financial or otherwise, for slavery. In fact, the United States only officially apologized for slavery in 2009.⁵ While the government has made few moves towards reparations for slavery, it has compensated other groups for the historical injustices they faced. There are many examples of reparations, but we will take a look at two cases—one (reparations for Japanese Americans) that is generally thought to be well-executed, and another (reparations for Native Americans) largely regarded as unsuccessful.⁶

After decades of petitions, elections, demonstrations, and lobbying, Congress passed the Civil Liberties Act of 1988 to make restitution to the victims of Japanese internment during World War II.⁷ Recipients included the 120,000 internees themselves, as well as their heirs in the event that an internee had died since the war. Compensation included a formal apology on behalf of the government, funding for public education about the crimes of Japanese internment, and monetary restitution in the amount of $20,000 per victim (approximately $40,000 today).⁸

Alternatively, spurred in large part by recognition of the key role that Native Americans played during World War II, the government attempted to compensate Native Americans for the lands and livelihoods taken by the United States throughout history.⁹ In 1946, the Indian Claims Commission was formed to hear the historical grievances of Native Americans and to determine restitution.¹⁰ As a result of the commission’s findings, the government set aside $1.3 billion as compensation for 176 tribes and organizations.¹¹ To the disappointment of many Native American peoples and tribes, a multitude of issues emerged, including much of the money being held in a federal trust, which led each recipient to be awarded roughly $1,000—if they received a direct payment at all.¹²

What Form Would Reparations Take?

The idea of issuing reparations for slavery in the United States has never been popular. Recent studies show that roughly 20-25 percent of the population supports reparations, with Black Americans being the only group offering majority approval.¹³ Many people have spoken on the subject over the centuries, both in fierce opposition and in strong support. However, even supporters do not widely agree on the precise form that reparations could or should take. In fact, one of the primary purposes of the H.R. 40 reparations commission is to, at the very least, build some form of consensus around a proposal.

Regardless of support or opposition, one of the most challenging aspects of the reparations for slavery debate is the passage of time and incomplete documentation.¹⁴ The relative success of reparations for Japanese internment versus the poor outcome for Native Americans helps illustrate the challenge. Japanese internment was meticulously documented and had a specific start and end date. This made identifying the victims easier and their claims much harder to refute. Most of the direct victims of internment were also still alive at the time Congress passed reparations legislation, making the process that much easier.

By contrast, the taking of Native American lands, the forceful removal of Native American peoples, and the violence connected to it all took place over a protracted period with no specific timeframe and without thorough, reliable records to account for who was impacted. In the case of slavery, there is a specific end date, but observers disagree about whether that date is a sufficient determinant for reparations. Some scholars and proponents of reparations believe that the government should factor in the legalized discrimination that Black Americans faced for another century after the abolition of slavery.¹⁵

Some suggest that reparations for Black Americans should be monetary compensation to all, both for the labor of their enslaved ancestors and for the ongoing discrimination they face. Others suggest that in order to receive compensation, Black Americans should be required to provide proof of ancestry (which is complicated by incomplete records). Some have suggested that monetary compensation is not sufficient on its own, and that reparations should come in the form of government programs, education initiatives, and funding for community organizations. Others do not believe reparations are necessary at all.¹⁶

At this point, the issue of reparations is far from resolved. But most people would benefit from learning more about the history of reparations, the history of the government’s treatment of minority groups, and the historical contribution of Black people to U.S. history since long before the country existed. Some of these links may help you:

“America Has Tried Reparations Before, Here Is How It Went,” from the New York Times
“The Case for Reparations,” by Ta-Nehisi Coates
“How Reparations Would Work Today,” from Quartz
“Slavery Reparations Seem Impossible, In Many Places They’re Already Happening,” from the Washington Post
“Slavery and the Making of America,” from Thirteen.org

Discussion Questions

Should the U.S. government provide some form of reparations for slavery? If so, what form do you think those reparations should take? If not, why not?
Some opponents of reparations argue that the extended time that has passed since slavery ended makes reparations infeasible and/or inappropriate. Do you agree? Why or why not?
Are there other groups who could argue that they are owed reparations? If so, how do you believe they should be compensated, if at all?
Some supporters of reparations argue that even though most people living in the United States today have no direct connection to slave ownership, the government is legally considered to be an unbroken institution since the signing of the Constitution onward. Therefore, the government of today is the same government that enforced and profited from slavery but has never compensated the victims of that injustice. Do you agree with this view? Why or why not?

As always, we encourage you to join the discussion with your comments or questions below!

Related Posts:

Sources

Featured Image Credit: Mario Tama/Getty Images

[1] Congress.gov: https://www.congress.gov/bill/117th-congress/house-bill/40?s=1&r=6

[2] New York Times: https://www.nytimes.com/2019/05/23/business/economy/reparations-slavery.html

[3] Congress.gov: https://www.congress.gov/bill/116th-congress/house-bill/40?q=%7B%22search%22%3A%5B%22Rep+Jackson+Lee+Sheila+TX18%22%2C%22Rep+Jackson+Lee+Sheila+TX18%22%5D%7D

[4] Reuters: https://www.reuters.com/article/us-usa-biden-slavery/white-house-says-biden-supports-study-of-slavery-reparations-idUSKBN2AH2K9

[5] FacingSouth.org: https://www.facingsouth.org/2009/06/senate-passes-resolution-apologizing-for-slavery.html

[6] New York Times: https://www.nytimes.com/2019/06/19/us/reparations-slavery.html

[7] Congress.gov: https://www.congress.gov/bill/100th-congress/house-bill/442

[8] Densho Encyclopedia: https://encyclopedia.densho.org/Civil_Liberties_Act_of_1988/

[9] National Park Service: https://www.nps.gov/parkhistory/online_books/laro/adhi/adhi4c.htm

[10] National Archives: https://www.archives.gov/research/guide-fed-records/groups/279.html

[11] Department of the Interior: https://www.doi.gov/sites/doi.gov/files/T-0810.pdf

[12] New York Times: https://www.nytimes.com/2019/06/19/us/reparations-slavery.html

[13] The Hill: https://thehill.com/homenews/news/504511-1-in-5-supports-reparations-in-new-poll

[14] New York Times: https://www.nytimes.com/2019/06/19/us/reparations-slavery.html

[15] The Atlantic: https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/

[16] Quartz: https://qz.com/1912770/how-would-reparations-work/

The 14th: Why A Reconstruction-Era Amendment is in the News

Posted on February 23, 2021April 8, 2024 by Scot Wilson

Now that former President Donald Trump’s second impeachment trial has concluded with another acquittal, some lawmakers and voters remain unsatisfied with the results.¹ Had President Trump been found guilty by the Senate, he would have been barred from holding federal office again in the future. With an acquittal, President Trump remains eligible to run once again in 2024, as many have speculated he plans to do.²

With some Americans arguing that President Trump’s acquittal was the result of partisanship instead of a consideration of the evidence, there have been calls to use the 14th Amendment to bar President Trump from being elected again.³ But now, 150 years after its ratification, how does the 14th Amendment apply to these issues today?

The 14th Amendment passed after the Civil War, as one of the Reconstruction-Era amendments intended to solidify the rights and citizenship of formerly enslaved people. The 13th Amendment formally abolished slavery, and the purpose of the 14th Amendment was to establish citizenship for any person, including the formerly enslaved, born in the territory of the United States.⁴ This establishment of birthright citizenship is why the 14th Amendment is often discussed in relation to immigration reform.⁵ But those hoping to use the 14th Amendment to keep President Trump out of office are citing the lesser-known Section 3, which reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.⁶

14th Amendment Reconstruction and the History of Section 3

Originally, Section 3 was included in the 14th Amendment to protect post-war reforms in the South by barring members of Congress, state government officials, and military leaders who had sided with the Confederacy from holding office in the future.⁷ The 14th Amendment also helped lift some of the barriers to Black Americans holding federal office.

For the brief period of 1870-1887, Black senators and representatives served in the halls of Congress, beginning with Senator Hiram Revels of Mississippi and Representative Joseph Rainey of South Carolina, both of whom were elected in 1870. Also during this period, Senator Blanche K. Bruce of Mississippi would serve a full term and an additional 15 Black congressmen would serve.⁸

However, most of their tenures in office were brief, as the resurgence of white supremacists in Southern governments saw them removed from office or defeated in elections. As Reconstruction ended, marked by the withdrawal of federal troops from the South, nearly all of these senators and representatives were out of office by 1876. Black Americans were sporadically elected to the House of Representatives until 1901, but their time in office was usually brief. It would not be until 1943 that more than one Black representative served in Congress again with any consistency. Another Black senator was not elected until 1966—more than 90 years after Senator Bruce’s term ended.⁹

The Current 14th Amendment Debate

In the wake of the Capitol attack, some lawmakers believe the language of the 14th Amendment gives them the power to prevent President Trump’s return. However, opponents and even neutral legal scholars have raised several issues with this argument. First, the 14th Amendment specifies that a two-thirds vote in both the House and the Senate could undo someone being barred from office on these grounds, but it offers no formal process for barring them to begin with. Second, the language of the 14th Amendment is tied to “a Senator or Representative in Congress, or elector of President and Vice President,” but it makes no direct mention of the office of the president itself.¹⁰ To combat this argument, proponents of invoking the 14th Amendment cite the rest of the clause, which states “or hold any office, civil or military, under the United States.” It could be argued that the president, as a civilian leader and commander-in-chief of the military, falls under this category.¹¹

Yet with the impeachment trial now concluded with an acquittal, the validity of invoking the 14th Amendment becomes even less clear. Under its tenets, barring someone from office requires them to have taken an oath to support the Constitution and “have engaged in insurrection or rebellion against the same.” President Trump most certainly took that oath when he was sworn in as president, but he has been constitutionally acquitted of having engaged in insurrection.¹²

Discussion Questions

Should Congress be allowed to bar anyone from holding office? If so, under what circumstances do you think that would be appropriate? If not, why not?
If Congress was to decide to ban a citizen from holding federal office, what should be required to make that happen? Is a simple majority vote in the House and the Senate enough? Should the process be more involved/require greater approval?
The purpose of the 14th Amendment was to establish the criteria for U.S. citizenship and to guard against pro-slavery/white supremacist officials undermining Reconstruction in the South. Some people suggest that Congress could use more reforms to help protect democracy and to make itself more representative of all citizens. Do you agree or disagree? What reforms do you think would improve representation in Congress? Or, why do you think Congress does not need such reforms?

We encourage you to join the discussion on the 14th Amendment on the current event with your comments or questions below!

Related Posts:

Historic Second Impeachment: Part 2

Historic Second Impeachment: Part 1

How Would You Vote in the Senate Impeachment Trial?

Sources

Featured Image Credit: Public Domain

[1] Politico: https://www.politico.com/news/2021/02/15/poll-trump-impeachment-conviction-469051

[2] NPR: https://www.npr.org/2021/01/30/961919674/could-trump-make-a-comeback-in-2024

[3] The Nation: https://www.thenation.com/article/politics/14th-amendment-trump-foner/

[4] Senate.gov: https://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendments.htm

[5] Vox: https://www.vox.com/2018/7/23/17595754/birthright-citizenship-trump-14th-amendment-executive-order

[6] National Archives: https://www.archives.gov/founding-docs/amendments-11-27#:~:text=No%20State%20shall%20make%20or,equal%20protection%20of%20the%20laws.

[7] Lawfare Blog: https://www.lawfareblog.com/14th-amendments-disqualification-provision-and-events-jan-6

[8] House.gov: https://history.house.gov/baic/

[9] Ibid.

[10] Voice of America: https://www.voanews.com/usa/us-politics/some-lawmakers-experts-eye-14th-amendment-bar-trump-future-office

[11] Lawfare Blog: https://www.lawfareblog.com/practical-path-condemn-and-disqualify-donald-trump

[12] NPR: https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/13/967098840/senate-acquits-trump-in-impeachment-trial-again

The Debate Over School Resource Officers and the #CounselorsNotCops Campaign

Posted on February 16, 2021July 11, 2023 by Scot Wilson

The debates over defunding or reforming the police and addressing the school-to-prison pipeline have merged to focus on the issue of police officers in schools. School resource officers (SROs) are career law enforcement officers who work in one or more schools.¹ According to the Department of Justice, SROs are “responsible for safety and crime prevention in schools.”² In addition to enforcing laws, SROs are expected to act as informal counselors and educators.³

As people across the country have raised questions about the role of police,⁴ it is unsurprising that those debates have spilled over into schools. Some large districts are already taking steps to reduce, or even remove, police officers from schools. Shortly after a Minneapolis police officer killed George Floyd, the city voted to remove SROs from their schools. The cities of Denver, Milwaukee, and Portland, Oregon, have taken or announced similar steps⁵ in the face of mounting protests and public pressure.⁶

What Is the Debate Over Officers in Schools About?

Over the last two decades, there has been a significant increase in the number of School Resource Officers in public schools.⁷ In 2017, the American Civil Liberties Union released a report about the rise and consequences of police officers in schools. According to the report, students of color, and particularly Black students, are overpoliced and often significantly more likely to be criminally charged for misbehavior in school.⁸ The ACLU found that some students were charged with assault for throwing baby carrots or paper airplanes, or charged with larceny for stealing milk.

There have been several incidents caught on camera in which police officers used excessive force against children as young as six.⁹ Some students of color and students with disabilities have spoken up to say that they feel threatened by police officers in schools, or that their SROs treat them differently than their white, able-bodied counterparts.¹⁰

In North Carolina, there are debates about SROs at the state level and in many of the state’s larger school districts. For example, in Wake County, student activists are demanding that officials remove SROs from schools and replace them with counselors. Black Students Matter and the Wake County Black Student Coalition led demonstrations in Raleigh and surrounding communities to raise public awareness and put pressure on local officials after they voted to keep officers in schools.¹¹ In that district, 61 percent of all SRO referrals to criminal courts are Black students, who make up only 22 percent of the student population.¹²

WATCH: #CounselorsNotCops, from the Wake County Black Student Coalition

In Maryland, two bills in the state legislature are compelling residents to consider the role of police officers in schools. One bill, the Counselors Not Cops Act, would shift a significant portion of the state’s funding away from SROs and toward investment in counselors, social workers, and other school support staff.¹³ The other bill, the Police Free Schools Act, would remove police from the state’s public schools.¹⁴

Maryland, like many states, increased funding for SROs and their training after the shooting at Marjory Stoneman Douglas High School in Parkland, Florida.¹⁵ States and schools recognize the need to keep students safe and are struggling to balance this priority against calls for racial justice and educational equity. While some jurisdictions are removing SROs from schools, others are considering reforming their approaches.

LISTEN: “Inside the National Movement to Push Police Out of Schools,” from NPR

Many large educational organizations, such as the National PTA, the National Association of Secondary School Principals, and the National Association of School Psychologists, support the presence of SROs in schools but are calling for reforms.¹⁶ These organizations signed an open letter calling for more training and stricter standards for the selection of SROs, the inclusion of school principals in the hiring process, and annual evaluations that take into account disproportionate rates of enforcement by race, gender, and ability.¹⁷

Discussion Questions

Are there SROs in schools in your community? What have been your experiences, if any, with SROs?
Are there any reform efforts in your community or state? Are there any bills or policy changes being considered?
Do you think reform is needed? Do you believe SROs should be removed from schools? Why or why not?
How, if at all, do you think we should reform schools to address the school-to-prison pipeline?

Additional Resources

Today.com: “School Resource Officers: What Are They and Are They Necessary?”
“National Organizations Call for Rigorous Training and Appropriate Use of School Resource Officers”
Scalawag Magazine: Two-Part Series about Young Activists in Wake County, Who Are Seeking to Remove SROs from Schools (Part One and Part Two)
The Appeal Podcast: “Police Abuse in American Schools”
Pittsburgh Post-Gazette: “Removing Police Presence from Schools Would Cause More Harm than Good, Officers Say”
Dignity in Schools Campaign: “Counselors Not Cops: Ending the Regular Presence of Law Enforcement in Schools”

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: CNN.com

[1] National Association of School Resource Officers: https://www.nasro.org/faq/

[2] Department of Justice: https://cops.usdoj.gov/supportingsafeschools

[3] Ibid.

[4] ABC News: https://abcnews.go.com/US/defund-police-movement-months-killing-george-floyd/story?id=74296015

[5] CNN: https://www.cnn.com/2020/06/28/us/police-out-of-schools-movement/index.html

[6] Education Week: https://www.edweek.org/education/the-police-in-schools-debate-needs-more-nuance-ed-groups-say/2020/08

[7] National Center for Education Statistics: https://nces.ed.gov/surveys/ssocs/tables/tab_my01_2016_all.asp

[8] American Civil Liberties Union: https://www.aclu.org/report/bullies-blue-origins-and-consequences-school-policing

[9] Today.com: https://www.today.com/tmrw/what-school-resource-officer-t184614

[10] Education Week: https://www.edweek.org/education/the-police-in-schools-debate-needs-more-nuance-ed-groups-say/2020/08

[11] ABC 11 Eyewitness News: https://abc11.com/education/wake-co-teens-march-in-downtown-raleigh-to-pull-police-from-schools/6273010/

[12] Charlotte News & Observer: https://www.newsobserver.com/news/local/education/article246154015.html

[13] Fox 45 Baltimore: https://foxbaltimore.com/news/local/some-maryland-lawmakers-have-introduced-legislation-that-would-remove-sros-from-schools

[14] CBS 13 Baltimore: https://baltimore.cbslocal.com/2021/02/03/counselors-not-cops-act-school-resource-officers-maryland/

[15] Ibid.

[16] Education Week: https://www.edweek.org/education/the-police-in-schools-debate-needs-more-nuance-ed-groups-say/2020/08

[17] National Association for Secondary School Principals: https://files.nassp.org/archive/nassp/2020/08/Framework-Authors-SRO-Statement_Final.pdf

Tackling Climate Change: Zero-Emission Vehicles

Posted on February 10, 2021May 9, 2023 by Scot Wilson

President Joe Biden has made addressing climate change one of his administration’s seven “immediate priorities,” requiring “bold action” by the government to improve the lives of the American people and protect the environment.¹ On his seventh full day in office, President Biden signed an “Executive Order on Tackling the Climate Crisis at Home and Abroad” which, among other directives, calls for reducing greenhouse gas emissions, obtaining zero-emission vehicles for the government, and achieving net-zero emissions by 2050 at the latest.² These goals are very ambitious—225,000 electric, zero-emission vehicles would be needed for the U.S. Postal Service alone—and they would dramatically shift our society away from the fossil fuels on which it is so dependent. Yet President Biden’s plan to address climate change almost immediately received a boost from the private sector.

The day after the president signed his executive order, General Motors made the unprecedented announcement that it would phase out gas-powered cars and produce only zero-emission vehicles (those that do not expel greenhouse gases or other pollutants) by 2035.⁴ GM is investing billions of dollars in manufacturing its electric vehicles, including 30 new models to be released within the next five years.⁵ A White House spokesperson praised the decision, saying, “We applaud efforts by the private sector to further embrace renewable and clean energy technologies. As the president and many others have said, efforts like this will help grow our economy and create good-paying union jobs.”⁶

During the Super Bowl, GM ran a series of star-studded ads featuring Will Ferrell⁷ and Timothée Chalamet⁸ as it highlighted its push to be a global leader in selling electric cars and showcased its new all-electric Cadillac LYRIQ. While zero-emission vehicles have become increasingly popular among buyers (sales increased in 2020), they still represent less than two percent of all vehicles on the road in the United States today.⁹

With the Biden administration and GM pursuing common goals, there is a new opportunity for both to work together though innovation and partnership, rather than relying solely on pressure or policy. Previously, GM had pushed back against federal and state government guidelines, including emission and fuel-efficiency standards from President Barack Obama’s administration and the state of California.¹⁰ GM no longer has competing priorities that would prevent it from implementing effective solutions to deal with the climate crisis.

Having the support of this automotive industry leader may make it easier for President Biden to pursue his environmental agenda; it could also encourage him to go even further with his policies and pursue more aggressive action to combat climate change. Other auto manufacturers may follow GM’s example and make similar changes themselves, as they shift away from fossil fuels in an attempt to remain competitive and keep up with a changing market and energy landscape.¹¹

This movement could even expand to other industries that seek to work alongside the Biden administration, to adapt their practices, to invest in a burgeoning economy, and to improve their own bottom line. The actions of private companies would complement the White House’s climate change priorities, which aim to take “swift action to tackle the climate emergency” and ensure “we meet the demands of science while empowering American workers and businesses to lead a clean energy revolution.”¹²

Discussion Questions

Do you know anyone who owns a zero-emission vehicle? Do you see any in your community? If not, why do you think that is?
What are some benefits of the government having the support of businesses, corporations, or industry leaders for its policy agenda?
Do you support President Biden’s plan? Does it go too far, or not far enough?
Do you think addressing climate change is more the responsibility of the government or the private sector? Is one currently doing a better job than the other?

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: Joe Biden via Washington Post

[1] White House: https://www.whitehouse.gov/priorities/

[2] White House: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/

[3] Washington Post: https://www.washingtonpost.com/climate-solutions/2021/01/28/biden-federal-fleet-electric/

[4] New York Times: https://www.nytimes.com/2021/01/28/business/gm-zero-emission-vehicles.html

[5] CNBC: https://www.cnbc.com/2021/02/03/watch-gms-2021-super-bowl-ad-with-will-ferrell-before-it-airs.html

[6] New York Times: https://www.nytimes.com/2021/01/28/business/gm-zero-emission-vehicles.html

[7] YouTube: https://www.youtube.com/watch?v=LxBQ2Q39Tq4

[8] YouTube: https://www.youtube.com/watch?v=0KAlqthD6Gc

[9] Washington Post: https://www.washingtonpost.com/climate-solutions/2021/01/28/biden-federal-fleet-electric/

[10] New York Times: https://www.nytimes.com/2020/11/23/climate/general-motors-trump.html

[11] New York Times: https://www.nytimes.com/2021/01/28/business/gm-zero-emission-vehicles.html

[12] White House: https://www.whitehouse.gov/priorities/

Historic Second Impeachment, Part Two: Questions of Crime and Punishment

Posted on February 8, 2021August 16, 2021 by Scot Wilson

This week, the Senate commences an historic second trial of former President Donald Trump, stemming from his actions pertaining to the January 6 Capitol riot.¹ Against a backdrop of heightened security, threats made against members of Congress,² and tensions within the Republican Party,³ senators must determine President Trump’s innocence or guilt, as well as what consequences, if any, he should face. Their decisions may affect elections for years to come.⁴

The Constitution allows impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors.”⁵ The document does does not specifically list those offenses, leaving it to Congress to determine what exactly merits impeachment and conviction.⁶ The charge by the House of Representatives, “incitement of insurrection,”⁷ uses language from Section 3 of the 14th Amendment,⁸ likely foreshadowing certain members’ hopes to disqualify President Trump from holding future office.⁹ That possibility could turn on whether or not senators find President Trump guilty of incitement.¹⁰

The constitutional right to free speech¹¹ sets a high bar for what is considered incitement.¹² To qualify as unprotected, criminal speech, President Trump’s words would have needed to encourage immediate lawbreaking and to be likely to produce that lawbreaking.¹³ While separate criminal charges for incitement are theoretically possible¹⁴ (but unlikely¹⁵), they are not part of the Senate trial, so senators can decide individually if they want to use the criminal burden of proof or a different, lower standard.¹⁶

House Democrats contend that First Amendment protections should not allow a government official to abuse their power and avoid impeachment.¹⁷ They argue, on the basis of President Trump’s January 6 speech,¹⁸ that his responsibility for the attack is “unmistakable.”¹⁹ President Trump’s legal team denies those claims, arguing that those responsible—people who entered and vandalized the Capitol—are being prosecuted and that President Trump did not incite anyone to “engage in destructive behavior.”²⁰ Some of the accused rioters seemingly disagree, blaming President Trump in their legal defense.²¹ President Trump’s lawyers also assert that the trial itself is unconstitutional²² (a debate addressed in a previous post), although Democrats have criticized this argument as a way for Republicans to avoid judging his words.²³

READ: Full Transcript of President Trump’s January 6 Speech, from U.S. News & World Report

In the event of a Senate conviction, President Trump would lose his post-presidency benefits (including his pension for security and travel expenses).²⁴ An additional, simple-majority vote²⁵ in the Senate could disqualify him from holding future office.²⁶ If the Senate does not convict, President Trump’s opponents have considered trying to disqualify him from future elected office anyway, by using Section 3 of the 14th Amendment.²⁷ This provision initially sought to keep leaders of the Confederacy²⁸ (who had “engaged in insurrection or rebellion”²⁹) from holding federal office.³⁰ Experts caution that using this provision against President Trump would almost certainly result in lawsuits,³¹ as there is little historical precedent and no enforcement mechanism for Section 3.³² University of Chicago law professor Daniel Hemel notes that even if Congress does not pursue this path, citizens in some states could set off a similar legal battle by appealing to their board of elections to bar a candidate from the ballot.³³ “All it takes is one registered Republican in New York state to say Donald J. Trump is not qualified to be president because he violated Section 3,” said Hemel.³⁴

Discussion Questions

Do you think President Trump’s actions make him guilty of inciting an insurrection? Why or why not?
What standard of proof should senators use to determine if President Trump is guilty of incitement?
- People who favor the highest standard of proof note that the Constitution’s use of the words “try” and “convicted” are similar to language used in criminal trials.³⁵ Those who advocate a lower standard of proof assert that an impeachment trial cannot result in criminal penalties such as jail sentences.³⁶ Which argument do you find more persuasive? Why?
- Based on the highest standard of proof (the one criminal prosecutors would have to satisfy) that President Trump’s actions encouraged and produced immediate lawbreaking, should senators find him innocent or guilty? Why?
House Democrats argue that there is a difference between a private citizen’s right to free speech, in which they could advocate for an overthrow of the government, and a president’s right to say the same thing because it would be an abuse of power.³⁷ Do you agree or disagree? Why?
Based on his actions, do you think President Trump should be disqualified from holding federal office in the future? Why or why not?
If the Senate does not convict President Trump of incitement of insurrection, do you think Congress should try to disqualify him from holding federal office again by using Section 3 of the 14th Amendment, even if doing so results in a lengthy court battle? Why or why not?
Professor Hemel thinks that because Section 3 of the 14th Amendment is not clear about what amounts to an insurrection and how penalties would be enforced, there will be number of lawsuits preceding the 2024 election.³⁸ Hemel said, “My guess is it’ll be made against a bunch of candidates in a bunch of states. For Congress, an important question is, do you want to be in the driver’s seat here setting forth the rules of the road for Section 3 litigation, or do you just want to wait for 2023 to come around and let it rip?”³⁹
- Which branch of government do you think should settle questions about insurrections and how penalties should affect political candidates? Do you think Congress should pass laws in the next two years to clarify these issues, or do you think judges, up to and including Supreme Court justices, should interpret laws as cases come up?

How to Get Involved

Contact your state’s two senators to share your opinions on whether or not they should convict President Trump of incitement of insurrection, and what (if any) penalties you think he should receive. Find contact information here:

Other Resources

Have students review crowd reactions to President Trump’s January 6 speech.

Ask students to answer the following question in writing and/or deliberate in class: Based on this evidence, did President Trump incite an insurrection? Why or why not?

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: Senate Television via AP

[1] NPR: https://www.npr.org/2021/01/25/960389715/sen-patrick-leahy-to-preside-over-trumps-senate-impeachment-trial

[2] Associated Press: https://apnews.com/article/lawmakers-trump-impeachment-trial-b9a44a269d6cfeee28e79b46572d28a6

[3] CNN: https://www.cnn.com/2021/01/28/politics/adam-kinzinger-impeach-trump-axe-files/index.html

[4] CBS News: https://www.cbsnews.com/news/14th-amendment-insurrection-rebellion-trump-post-presidency/

[5] Constitution Annotated: https://constitution.congress.gov/browse/essay/artII-S4-2-1/ALDE_00000690/

[6] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013

[7] Representative David Cicilline’s Official Website: https://cicilline.house.gov/sites/cicilline.house.gov/files/documents/ARTICLES%20-%20Final%201030%20-%20011121.pdf

[8] Constitution Annotated: https://constitution.congress.gov/browse/amendment-14/section-3/

[9] New York Magazine: https://nymag.com/intelligencer/2021/01/dont-impeach-trump-for-insurrection-use-the-14th-amendment.html

[10] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7

[11] National Constitution Center: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/266

[12] The Marshall Project: https://www.themarshallproject.org/2021/01/08/a-civilian-s-guide-to-insurrection-legalese

[13] Christian Science Monitor: https://www.csmonitor.com/USA/Justice/2021/0115/Incitement-sedition-and-conspiracy-explaining-Capitol-crimes

[14] Washington Post: https://www.washingtonpost.com/business/insurrection-seditionunpacking-the-legal-issues-from-the-capitol-riot/2021/01/14/4fe1f618-5631-11eb-acc5-92d2819a1ccb_story.html

[15] Christian Science Monitor: https://www.csmonitor.com/USA/Justice/2021/0115/Incitement-sedition-and-conspiracy-explaining-Capitol-crimes

[16] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013

[17] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7

[18] The Guardian: https://www.theguardian.com/us-news/2021/feb/02/trump-capitol-riot-powder-keg-impeachment-prosecutors

[19] Ibid.

[20] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7

[21] Yahoo! News: https://www.yahoo.com/news/lawyers-for-accused-capitol-rioters-outline-a-defense-the-president-made-them-do-it-014900543.html

[22] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7

[23] The Hill: https://thehill.com/homenews/senate/535925-senate-rejects-paul-effort-to-declare-trump-impeachment-trial

[24] ABC News: https://abcnews.go.com/Politics/impeachment-democrats-seek-bar-trump-post-presidency-financial/story?id=75178231

[25] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/constitution-conan/article-2/section-4/judgment-removal-and-disqualification

[26] Vox: https://www.vox.com/22220495/impeachment-trump-2024-election-bar-from-office

[27] ABA Journal: https://www.abajournal.com/news/article/could-the-14th-amendment-be-used-to-disqualify-trump-from-office

[28] ABC News: https://abcnews.go.com/Politics/democrats-cite-rarely-part-constitution-impeachment-article/story?id=75177543

[29] Constitution Annotated: https://constitution.congress.gov/browse/amendment-14/section-3/

[30] Reuters: https://www.reuters.com/article/us-usa-trump-impeachment-explainer/impeachment-or-the-14th-amendment-can-trump-be-barred-from-future-office-idUSKBN29I356

[31] Ibid.

[32] CBS News: https://www.cbsnews.com/news/14th-amendment-insurrection-rebellion-trump-post-presidency/

[33] Ibid.

[34] Ibid.

[35] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013

[36] Ibid.

[37] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7

[38] CBS News: https://www.cbsnews.com/news/14th-amendment-insurrection-rebellion-trump-post-presidency/

[39] Ibid.

Historic Second Impeachment, Part One: Questions of Constitutionality and Unity

Posted on February 3, 2021March 27, 2023 by Scot Wilson

Last week, the House of Representatives delivered an article of impeachment to the Senate, accusing former President Donald Trump of inciting violence against the U.S. government on the basis of his actions relating to the January 6 storming of the Capitol.¹ Already the first U.S. president to be impeached twice, President Trump will also become the first to face a Senate trial after leaving office.² Before the trial starts on February 9, members of Congress face a unique historical and political context as they consider whether they can, and should, convict a former president.³

One week after the Capitol riot,⁴ ten House Republicans joined with Democrats to impeach President Trump, making it the most bipartisan impeachment vote in U.S. history.⁵ However, for the evenly split Senate to reach the two-thirds majority required to convict, 17 Republican senators would need to join with every member of the Democratic caucus.⁶ A Senate vote on January 26 cast doubt on that scenario.⁷ Although Democrats quashed an attempt led by Senator Rand Paul, R-Ky., to declare the upcoming trial unconstitutional, only five Republicans joined them,⁸ prompting Paul to characterize the upcoming case as “dead on arrival.”⁹

Most Senate Republicans have echoed conservative legal scholars, arguing that the impeachment trial is unconstitutional10 because its primary purpose is to remove a sitting president.¹¹ They contend that the Senate’s constitutional impeachment and removal powers do not extend beyond the incumbent office holder.¹² Senate Majority Leader Chuck Schumer, D-N.Y., has said that this argument “defies basic common sense.”¹³ Like-minded law professors point to the constitutional provision which allows the Senate to disqualify a convicted president from seeking office again—a separate consequence that would still apply in this case.¹⁴

A bipartisan group of over 150 constitutional law scholars (including members of the conservative Federalist Society) signed a letter highlighting disqualification as “an important deterrent against future misconduct.”¹⁵ Without it, they warned, “an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote.”¹⁶ An example of both points arose in 1876, when the Senate tried a secretary of war after he resigned his office in a failed attempt to avoid the trial.¹⁷

The Congressional Research Service (CRS) has weighed the 1876 example against cases in which resignation did indeed halt impeachment proceedings.¹⁸ CRS details how the judicial branch, out of concern for the separation of powers, would not review the Senate’s judgment on matters of impeachment.¹⁹ Many legal experts agree that senators could set aside facts and vote to acquit if they thought the Senate lacked jurisdiction to convict a private citizen.²⁰ Such a determination would neither depend upon nor establish a precedent.²¹

Many Republicans also argue that a trial will sow further division and undercut cooperation with President Joe Biden’s agenda²² and calls for unity.²³ Senator John Cornyn, R-Texas, cautioned of possible partisan retribution if former officials become open to impeachment trials,²⁴ at one point musing, “Could we go back and try President Obama?”²⁵ Senator Marco Rubio, R-Fla., has called the trial “counterproductive,” believing it will further “fuel these divisions that have paralyzed the country.”²⁶ But Democrats have dismissed those claims, emphasizing the importance of holding President Trump accountable for the insurrection.²⁷ According to Schumer, “Healing and unity will only come if there is truth and accountability. And that is what this trial will provide.”²⁸

Discussion Questions

Should the Senate be able to put a former president on trial after he or she leaves office? Why or why not?
How concerned are you that future presidents could commit impeachable offenses in the final days of a term and resign or leave office before facing a trial?
- Optional: Answer on a scale of 1-5, where 1 is “not at all concerned” and 5 is “extremely concerned.”
How concerned are you are you that allowing trials of former officials will lead to political retribution by the majority party?
- Do you think Republicans would attempt to impeach and convict President Obama? Why or why not?
- Do you think Democrats would attempt to impeach and convict President George W. Bush? Why or why not?
How important is the goal of unifying the country? How important is the goal of holding President Trump accountable for the insurrection?
- Is it possible to achieve both goals?
- Would you prioritize one of these goals over the other? If so, which one? If not, why not?
What impact do you think a Senate trial of President Trump will have on the goal of national unity? Will it help the cause by providing truth and accountability? Will it hurt the cause by fueling divisions? Will it not make an impact in either direction?

How to Get Involved

Check the websites of your state’s two senators to learn their thoughts on the constitutionality and value of a Senate trial. Contact them to share your opinions on the Senate trial and your thoughts about the goals of national unity and accountability for insurrection. Find contact information here:

Other Resources

Have students read a pair of opinion pieces on whether the Senate trial is constitutional, and ask them which side is more convincing.

Arguments supporting the trial: Law professor emeritus Laurence Tribe (Washington Post) | Law professor Jessica Levinson (NBC News)
Arguments opposing the trial: Former federal judge J. Michael Luttig (Washington Post) | Law professor Jonathan Turley (Fox News)

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: Tasos Katopodis, Pool Photo via AP

[1] Reuters: https://www.reuters.com/article/us-usa-trump-impeachment/u-s-house-to-bring-trump-incitement-charge-to-senate-launching-second-impeachment-trial-idUSKBN29U13G

[2] The Guardian: https://www.theguardian.com/us-news/2021/jan/25/us-house-delivers-article-of-impeachment-trump-2021

[3] Reuters: https://www.reuters.com/article/us-usa-trump-impeachment/u-s-house-to-bring-trump-incitement-charge-to-senate-launching-second-impeachment-trial-idUSKBN29U13G

[4] The Guardian: https://www.theguardian.com/us-news/2021/jan/25/us-house-delivers-article-of-impeachment-trump-2021

[5] NPR: https://www.npr.org/2021/01/14/956621191/these-are-the-10-republicans-who-voted-to-impeach-trump

[6] The Guardian: https://www.theguardian.com/us-news/2021/jan/25/us-house-delivers-article-of-impeachment-trump-2021

[7] Politico: https://www.politico.com/news/2021/01/26/rand-paul-impeachment-462655

[8] The Hill: https://thehill.com/homenews/senate/535925-senate-rejects-paul-effort-to-declare-trump-impeachment-trial

[9] Politico: https://www.politico.com/news/2021/01/26/rand-paul-impeachment-462655

[10] Fox News: https://www.foxnews.com/politics/professor-said-impeachment-trial-is-unconstitutional-to-attend-senate-gop-lunch-tuesday

[11] Ibid.

[12] Washington Post: https://www.washingtonpost.com/opinions/2021/01/12/once-trump-leaves-office-senate-cant-hold-an-impeachment-trial/

[13] Fox News: https://www.foxnews.com/politics/professor-said-impeachment-trial-is-unconstitutional-to-attend-senate-gop-lunch-tuesday

[14] NBC News: https://www.nbcnews.com/think/opinion/pro-trump-republicans-claim-senate-s-impeachment-trial-unconstitutional-nice-ncna1255621

[15] Politico: https://www.politico.com/news/2021/01/21/legal-scholars-federalist-society-trump-convict-461089

[16] Ibid.

[17] Bloomberg: https://www.bloomberg.com/news/articles/2021-01-25/trump-impeachment-trial-poised-to-open-with-march-across-capitol

[18] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013

[19] Ibid.

[20] Roll Call: https://www.rollcall.com/2021/01/26/legal-issues-are-political-in-trump-impeachment-trial/

[21] Ibid.

[22] Associated Press: https://apnews.com/article/82c0a1035ee55e6a8bda4d289943c641

[23] Al Jazeera: https://www.aljazeera.com/news/2021/1/21/pelosi-impeachment-trial-of-trump-will-not-harm-unity

[24] Associated Press: https://apnews.com/article/82c0a1035ee55e6a8bda4d289943c641

[25] The Morning Call: https://www.mcall.com/news/pennsylvania/capitol-ideas/mc-nws-pa-pat-toomey-senate-trump-trial-20210126-za2uqkxgknbpzj5ai2hl7upuxi-story.html

[26] NBC News: https://www.nbcnews.com/politics/donald-trump/trial-stupid-senate-republicans-throw-cold-water-trump-impeachment-n1255454

[27] The Hill: https://thehill.com/homenews/administration/533739-the-memo-democrats-scorn-gop-warnings-on-impeachment

[28] Associated Press: https://apnews.com/article/joe-biden-donald-trump-capitol-siege-biden-cabinet-trials-462425af29b02c43e24913b6fd191b6f

The Inaugural COVID-19 Memorial

Posted on February 2, 2021July 9, 2021 by Scot Wilson

The Lincoln Memorial is usually bustling with energy and activity on the eve of a presidential inauguration, when it takes center stage for concerts, crowds, and celebrations.¹ This year was different. The Biden Inaugural Committee struck a deeply somber tone in the midst of the pandemic, holding what was the first national memorial service for those who have died from COVID-19. That day, the United States surpassed 400,000 deaths from the virus since the first case was reported nearly one year ago.²

Until that moment, there had been no national recognition of the true cost of the pandemic. As BuzzFeed News reporter Amber Jamieson noted months prior, “Despite the enormous number of deaths—and the impact felt deeply by survivors of the virus, loved ones of the dead, and those suffering the enormous economic fallout—there has been no official national mourning. No minute of silence, no plans for a memorial to be erected in their honor, no collective grieving.”³ People stayed home to stay away from each other. They were barred from visiting loved ones in hospitals. Funerals were restricted to immediate family members only. Then-Vice President-elect Kamala Harris acknowledged this private pain that so many have felt. “For many months, we have grieved by ourselves,” she said. “Tonight, we grieve and begin healing together. Though we may be physically separated, we the American people are united in spirit.”⁴

WATCH: The COVID-19 Memorial Service, from ABC News

As the sun set, 400 rectangular lights—spanning the entire length of the Reflecting Pool on both sides—were simultaneously illuminated, with each light representing 1,000 lives lost to the virus.⁵ They stretched toward the World War II Memorial, which prominently features over 4,000 gold stars in memory of the 400,000 Americans killed in that conflict. At that moment, landmarks across the country were lit in solidarity, and a nurse from Michigan and a gospel singer performed “Amazing Grace” and “Hallelujah” as part of the service.⁶

With the national spotlight on his inauguration, then-President-elect Joe Biden planned this memorial as his first event in our nation’s capital. He stressed unity in his remarks, underscoring his desire to move the country past the pandemic by first paying tribute to the lives that have been lost. “To heal, we must remember. It’s hard sometimes to remember. But that’s how we heal,” he said. “It’s important to do that as a nation. That’s why we’re here today.”⁷

Discussion Questions

Look at this photo gallery of the Inaugural COVID-19 Memorial. How do the images make you feel? What stands out to you?
How is this memorial similar to or different from any other memorial you have seen?
How does this memorial express or shape the public feelings of the pandemic?
What can the memorial tell us about the Biden administration’s messaging, vision, or priorities in addressing the COVID-19 pandemic?

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: Alex Brandon/AP

[1] Time: https://time.com/4640346/donald-trump-lincoln-memorial/

[2] CNN: https://www.cnn.com/2021/01/19/health/us-coronavirus-tuesday/index.html

[3] BuzzFeed News: https://www.buzzfeednews.com/article/amberjamieson/coronavirus-200000-mourning-the-dead

[4] NPR: https://www.npr.org/sections/biden-transition-updates/2021/01/19/958548751/we-must-remember-biden-harris-memorialize-covid-19-victims

[5] New York Times: https://www.nytimes.com/2021/01/19/world/joe-biden-coronavirus-us-deaths.html

[6] Billboard: https://www.billboard.com/articles/news/politics/9513523/yolanda-adams-hallelujah-joe-biden-covid-19-memorial/

[7] New York Times: https://www.nytimes.com/2021/01/19/world/joe-biden-coronavirus-us-deaths.html

President Biden’s Policy Priorities: The First 100 Days

Posted on January 22, 2021December 9, 2022 by Scot Wilson

During his inaugural address, President Joe Biden laid out a number of policy priorities. The clearest theme of his speech was a call for unity and the need to address political divisions in the United States, which came to a head with the attack on the Capitol on January 6, 2021.¹ However, President Biden also addressed several other priorities of his new administration, including the COVID-19 pandemic, the distribution of vaccines, climate change, systemic racism, and white supremacist terrorism.²

President Biden’s First 100 Days in Office

Ever since President Franklin Delano Roosevelt assumed the presidency and issued an immediate blitz of new policies and legislation to address the Great Depression, the first 100 days of any president’s term have taken on a special significance.³ President Biden, facing an unprecedented crisis of his own, is subject to similar expectations. He can implement some desired policy changes with the stroke of a pen through executive orders, but other actions will require the cooperation of Congress. Democrats have a slim majority in the House of Representatives, and they technically control the Senate (which is divided 50-50) through Vice President Kamala Harris’ power to cast tie-breaking votes. Still, the success of President Biden’s more ambitious legislative goals is by no means certain.

Executive Orders

During their terms, Presidents Donald Trump and Barack Obama frequently issued executive orders to accomplish their policy goals, in part due to partisan divides with Congress, or within Congress, that prevented legislation from passing.⁴ Executive orders are directives that are signed and issued by the president, unilaterally enabling him to take action on policies which fall under presidential authority, particularly law enforcement and federal agencies.⁵ Unlike legislation, however, executive orders are in place only as long as the sitting president permits. President Obama famously used an executive order to create Deferred Action for Childhood Arrivals (DACA) to protect certain undocumented immigrants from deportation.⁶ President Trump also used an executive order to institute a travel ban on immigrants from several countries, many of them Muslim-majority. This order was among the first that President Biden rescinded following his inauguration.⁷

Beyond ending the travel ban, President Biden has already issued a number of executive orders targeting a wide range of issues. Included among them is a federal mask mandate that requires anyone on federal property, as well as anyone using mass transit such as city buses, subways, trains, and airplanes, to wear a mask.⁸ President Biden has also continued a freeze on evictions and on student loan repayments in an effort to provide economic relief to people impacted by COVID-19.⁹ Other immediate executive orders included the United States’ rejoining of the Paris Agreement and the ending of the withdrawal process from the World Health Organization.¹⁰¹¹

READ: “Biden’s 17 Executive Orders in Detail,” from the New York Times

Legislation

The political divide in Congress presents a series of challenges for President Biden’s 100-day agenda. One issue of immediate concern is confirming the president’s chosen cabinet officials—the heads of the departments and agencies who implement many of the president’s directives and policies. Normally, the Senate would have already confirmed several nominees, for positions such as secretary of state. However, after the 2020 election, the Republican-led Senate was unusually slow-moving with regard to President-elect Biden’s cabinet; as a result, confirmations began in the days before the inauguration.¹² With Democrats now in charge of the Senate, most of these confirmations are all but guaranteed, but any delay has the potential to impact President Biden’s agenda.

A much more difficult legislative goal is passing a $1.9 trillion COVID-19 relief package. Included in this proposal are an additional $1,400 stimulus payment for most American adults, a $400 per week bonus to unemployment insurance payments, and an expanded COVID-19 testing and vaccination plan that aims to administer 100 million doses of vaccine by May 1 and reopen schools.¹³ There may be a way to pass many of these measures through a simple majority of 51 votes in the Senate. However, in order for a bill to pass without question and to remain fully intact, it would require 60 votes in the Senate (including the support of at least ten Republicans).¹⁴ Senator Joe Manchin, D-W.V., has already announced his opposition to certain elements of the bill.¹⁵ And without Senator Manchin’s vote, there is no guaranteed tie for Vice President Harris to break.

Discussion Questions

1. Which of President Biden’s policy priorities do you agree with? Which do you disagree with? Are there any that you do not believe should be an immediate priority?
2. What is the top issue that you want the Biden administration to address (even if it doesn’t appear on the lists above)? Why do you think that issue should be a priority?
3. Do you think it is important for there to be bipartisan support for President Biden’s policy goals? Or should the Democrat-controlled Congress prioritize passing bills even without Republican support?
4. Executive orders are a powerful tool at the president’s disposal. Do you believe there should be greater restrictions on executive orders, such as making them temporary without congressional approval? Or do you think executive orders are an important tool that presidents should be able to use unilaterally?

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: Twitter, via CNN

[1] https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/01/20/inaugural-address-by-president-joseph-r-biden-jr/:

[2] https://www.npr.org/2021/01/21/958981628/6-takeaways-from-president-bidens-inauguration/:

[3] https://www.npr.org/2017/04/29/525810758/the-first-100-days-a-standard-that-not-even-roosevelt-achieved/:

[4] https://www.federalregister.gov/presidential-documents/executive-orders/:

[5] https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-an-executive-order-/

[6] https://www.factcheck.org/2018/01/the-facts-on-daca/

[7] https://www.migrationpolicy.org/research/trump-executive-order-refugees-and-travel-ban-brief-review

[8] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-the-federal-workforce-and-requiring-mask-wearing/

[9] https://www.foxbusiness.com/economy/bidens-first-100-days-to-target-covid-relief-economic-stimulus

[10] https://www.nytimes.com/2021/01/20/climate/biden-paris-climate-agreement.html

[11] https://www.axios.com/biden-executive-order-who-world-health-covid-4579d0e5-136a-4792-920c-412ecadf4233.html

[12] https://www.washingtonpost.com/graphics/2021/politics/biden-cabinet-timeline/

[13] https://time.com/5931852/joe-biden-100-days/

[14] https://www.foxbusiness.com/economy/bidens-first-100-days-to-target-covid-relief-economic-stimulus

[15] https://www.cnbc.com/2021/01/14/biden-covid-stimulus-plan-congress.html

Fallout and Consequences, Part Two: Free Speech and Censorship

Posted on January 15, 2021March 27, 2023 by Scot Wilson

The fallout continues to mount from the January 6 attack on the Capitol. In previous blog posts, we offered a collection of resources and articles and explored the question of accountability for elected officials. In this post, we examine a thorny issue that is also emerging as institutions respond to riots: the power of private enterprise to limit individuals’ rights.

Facebook and Twitter both shut down President Donald Trump’s accounts. Facebook says the ban is indefinite,¹ while Twitter is calling its ban permanent.² Amazon’s web services removed Parler, a conservative social media network, from its servers, effectively shutting down the site.³ Apple and Google have both removed Parler from their app stores.⁴ Twitter has also removed at least 70,000 accounts that promoted the QAnon conspiracy theory.⁵

WATCH: “Twitter Bans Trump’s Personal Account Permanently,” from CBS News

The tech companies that took these steps cite the role that social media played in spreading misinformation⁶ and hate.⁷ They also point to the ways in which people used social media to call for the gathering in Washington, D.C., to identify targets of their rage, and to coordinate and organize the attack on the Capitol.⁸

While some people have cheered these moves on the part of tech firms,⁹ including most Americans,¹⁰ many commentators are raising questions and concerns about the power of companies to infringe on individual rights. “We understand the desire to permanently suspend [President Trump] now,” said Kate Ruane of the American Civil Liberties Union. “But it should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people from platforms that have become indispensable for the speech of billions.”¹¹

Conservatives have also argued that they are being unjustly targeted by big tech firms, thus enduring selective censorship. “Amazon, Google, and Apple’s decisions to block the download or use of Parler by their consumers is dangerous,” said Representative Andy Barr, R-Ky. “This blatant monopolistic behavior is designed to shut down debate and silence conservatives.”¹² John Matze, CEO of Parler, further stated, “We WON’T cave to politically motivated companies and those authoritarians who hate free speech!”¹³

WATCH: “These Trump Supporters Say Big Tech Is Biased. Here’s Why They’re on Parler,” from CNN Business

Danny Burgess, a Republican state legislator in Florida, argues that companies should be punished for what he views as selective censorship. “As publishers of third-party content, they should not be allowed to discriminate based on content and ban individuals just because they do not agree with their viewpoint,” he said. “These tech giants are monopolies that I think are very clearly coordinating efforts in a lot of ways on certain fronts and doing some selective censorship.”¹⁴

Some liberals, however, argue that conservatives are being hypocrites. They argue that Republican lawmakers have been more than happy to allow private businesses to discriminate against people for religious reasons. “The Trump administration didn’t hesitate to side with a Colorado baker who nearly a decade ago insisted that his religious beliefs allowed him to refuse service to a same-sex couple seeking a wedding cake,”¹⁵ wrote David Lazarus, a business columnist at the Los Angeles Times. However, concerns about the power of big tech have emerged on both the right and the left.¹⁶

There is a coalition of progressive and conservative legislators who are expressing interest in regulating large tech firms differently. One idea is to reform or repeal Section 230, the law that gives internet platforms immunity from being sued because of the content they carry.¹⁷ President Trump and many conservatives sought to repeal Section 230 at the end of 2020, but their attempts did not succeed. Changing Section 230 would make social media platforms more accountable for the content they carry, and it would heighten the responsibility of companies to moderate their platforms.

Senator Richard Blumenthal, D-Conn., supports reforming Section 230. After the attack on the Capitol, he highlighted “the need for Congress to reform Big Tech’s privileges and obligations. This begins with reforming Section 230, preventing infringements on fundamental rights, stopping the destructive use of Americans’ private data, and other clear harms.”¹⁸

It is likely that lawmakers will introduce legislation dealing with the powers and responsibilities of tech companies, particularly social media platforms, in this new Congress.

Discussion Questions

Do you believe Twitter and Facebook were right to ban President Trump? Why or why not?
Do you believe that Twitter is right to remove accounts of QAnon conspiracy spreaders and others? Why or why not?
Do you think big tech companies have too much power in our political discussions? Why or why not?
Do you think Congress should take steps to change the way the government regulates big tech firms?

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: Twitter, via CNN

[1] Washington Post: https://www.washingtonpost.com/technology/2021/01/07/trump-twitter-ban/

[2] Associated Press: https://apnews.com/article/jack-dorsey-twitter-defend-trump-ban-843c3e5fb72c0cfb89c1fd1132a525d8

[3] Reuters: https://www.reuters.com/article/amazoncom-parler/parler-urges-us-judge-to-order-amazon-to-restore-its-platform-idUSL1N2JP20I

[4] New York Times: https://www.nytimes.com/2021/01/09/technology/apple-google-parler.html

[5] New York Times: https://www.nytimes.com/2021/01/11/technology/twitter-removes-70000-qanon-accounts.html

[6] NBC 41 Kansas City: https://www.kshb.com/news/local-news/social-media-fuels-misinformation-that-stoked-capitol-riots

[7] The Verge: https://www.theverge.com/2021/1/13/22228675/amazon-parler-takedown-violent-threats-moderation-content-free-speech

[8] The Conversation: https://theconversation.com/far-right-activists-on-social-media-telegraphed-violence-weeks-in-advance-of-the-attack-on-the-us-capitol-152861; Wired.com: https://www.wired.com/story/plaintext-trump-ban-easy-fixing-facebook-twitter-hard/

[9] The Conversation: https://theconversation.com/social-media-giants-have-finally-confronted-trumps-lies-but-why-wait-until-there-was-a-riot-in-the-capitol-152820

[10] USA Today: https://www.usatoday.com/story/tech/2021/01/12/trump-ban-twitter-facebook-capitol-attack-insurrection-harris-poll/6643122002/

[11] New York Times: https://www.nytimes.com/2021/01/09/technology/trump-twitter-ban.html

[12] Politico: https://www.politico.com/news/2021/01/11/gop-tech-retaliation-457945

[13] Bloomberg: https://www.bloomberg.com/news/articles/2021-01-11/parler-trump-bans-show-big-tech-s-power-over-web-conversation

[14] Miami Herald: https://www.miamiherald.com/news/politics-government/state-politics/article248452195.html

[15] Los Angeles Times: https://www.latimes.com/business/story/2021-01-13/column-trump-twitter-ban-business

[16] New York Magazine: https://nymag.com/intelligencer/2021/01/trump-twitter-apple-amazon-parler-gop-woke-capital.html

[17] CBS News: https://www.cbsnews.com/news/what-is-section-230-and-why-do-so-many-lawmakers-want-to-repeal-it/

[18] Vox.com: https://www.vox.com/recode/22221135/capitol-riot-section-230-twitter-hawley-democrats

Fallout and Consequences, Part One: Who is Accountable?

Posted on January 13, 2021July 9, 2021 by Scot Wilson

The events at the Capitol on January 6 are forcing voters and elected officials to face some challenging questions. In a previous blog post, we provided some resources to help you begin to address some of these questions; in an upcoming post, we will examine other questions related to free speech. In this post, we focus on two key questions for elected officials: Who should be held accountable? What should accountability look like?

Should the President Be Held Accountable?

Federal and state law enforcement officials have arrested well over 100 of the rioters who attacked the Capitol,¹ the U.S. Capitol Police has suspended and is investigating a number of officers for their alleged roles in the assault,²and the U.S. Capitol Police chief³ and the acting secretary of Homeland Security have resigned.⁴One other person who many Americans argue should be held accountable is President Donald Trump. In addition to spreading misinformation about the election,⁵ President Trump called for supporters to descend upon Washington, D.C., on January 6,⁶ and addressed the gathered crowd shortly before the assault on the Capitol.⁷

During his remarks, President Trump said, “And after this, we’re going to walk … down to the Capitol and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong.”⁸ Some people point to these comments as evidence of President Trump’s culpability.⁹

READ: “Incitement Timeline: Year of Trump’s Actions Leading to the Attack on the Capitol,” from the Reiss Center on Law and Security at New York University School of Law

So, what options do elected officials have if they choose to hold President Trump accountable?

Vice President Mike Pence has the authority to invoke the 25th Amendment with a majority vote of the cabinet. Section 4 of the 25th Amendment states, “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

The House of Representatives passed a resolution calling on Vice President Pence to invoke the 25th Amendment, but thus far, he has dismissed the idea.¹⁰ Only one Republican member of the House, Representative Adam Kinzinger, R-Ill., supported the resolution.¹¹ The resolution only expresses the will of the House; it does not compel the vice president to take action.

Another possible action that is already underway in the House is impeachment. More Republicans in the House and the Senate are open to this approach than they are to the use of the 25th Amendment.¹² Representative Liz Cheney, R-Wyo., said of President Trump’s behavior that there has “never been a greater betrayal by a president of the United States.”¹³

Senate Majority Leader Mitch McConnell, R-Ky., has said that he will not recall senators to act as a jury for impeachment proceedings, meaning that a trial could not happen until after President Trump leaves office.¹⁴ However, an impeachment in the House and a conviction in the Senate would bar President Trump from seeking federal office in the future. Some Republicans, including McConnell, reportedly support this move because it would help the Republican Party move past President Trump.¹⁵

Another option, the use of Section 3 of the 14th Amendment, applies to President Trump and possibly other elected officials as well.

Holding Members of Congress Accountable

Some political leaders and commentators argue that there are members of Congress who deserve to be held accountable as well. One idea that’s being explored is the use of a clause in the 14th Amendment to bar people who have been found to have supported the assault on the Capitol from holding office in the future.

Section 3 of the 14th Amendment reads, “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Many analysts agree that the 14th Amendment could be used to bar President Trump from ever holding office again, and that it could be invoked at any time before or after he leaves office.¹⁶ However, it is not clear if the 14th Amendment could be used against members of Congress.

Newly elected Representative Cori Bush, D-Mo., has put forward legislation—H.R. 25—that calls for an investigation into, and the potential expulsion from Congress of, all members who supported President Trump’s efforts to contest the results of the election.¹⁷ But some observers dispute that Congress even has the authority to do this.¹⁸ “My view is the members who voted against the certification didn’t do anything unlawful or unconstitutional,” said Gerard Magliocca, a law professor at Indiana University. “People might not like it, and they can be criticized for doing that, but I don’t see it as grounds for an exclusion or an expulsion.”¹⁹

As lawmakers and others continue to explore options for holding elected officials accountable, the assault on the Capitol will likely stay on the minds of voters in future elections.

Discussion Questions

How did you react to the scenes at the Capitol last week?
Who do you hold responsible for what happened?
Should elected officials be held accountable if their words or actions inspire violence?
Of the ideas being explored so far (the 25th Amendment, impeachment, the 14th Amendment), is there one that you support? Why or why not?
How will the events of the last few days impact your political decision-making in the future? Will it impact how you vote?

Sources