Juliana v. Trump: Kids Fight Climate Change

By Dr. Elizabeth Blum[1], author of Love Canal Revisited; Race, Class, and Gender in Environmental Activism

On June 1, 2017, President Donald Trump withdrew the United States from the Paris climate accords signed the previous year under President Barack Obama. Noting that “I can put no other consideration before the wellbeing of American citizens,” Trump justified his decision by stating that the accord “is simply the latest example of Washington entering into an agreement that disadvantages the United States, to the exclusive benefit of other countries, leaving American workers, who I love, and taxpayers to absorb the costs in terms of lost jobs, lower wages, shuttered factories and vastly diminished economic problems.”[2]

The president’s decision came during a decade when polls revealed that many people, and young people in particular, emphasized climate change as a significant global problem. An Ipsos poll in 2015 noted that knowledge of the terms “global warming” and “climate change” were near universal among American eighth graders, who not only believed it to be a real phenomenon, but pointed fingers at using gasoline, cutting down trees, and creating electricity as major causes. The eighth graders also believed that adults and previous generations saddled them with a problem for their future.[3]  According to another poll taken four years earlier, the Nature Conservancy reported that “American youth are unhappy with the condition of the environment, and lack faith in adults to address it … A majority of American youth (51%) rate ‘the condition of the environment and nature’ as an ‘extremely serious’ or ‘very serious’ problem.”[4]

Seemingly paradoxically, at the same time adults note young people’s awareness of environmental issues, they also gnash teeth and decry children’s overreliance on technology and lack of interest in the outdoors. Concerned about youth “spending more time in front of screens than outside,” President Obama launched the Every Kid in a Park program, which granted every American fourth grader and their family free admission to all federal land.[5]  The National Park Service later announced the continuation of the program in subsequent years.[6]  Richard Louv’s bestselling Last Child in the Woods blamed computers and video games on children spending less time outdoors.  “Nature-deficit disorder,” as he described it, led to attention deficit disorder, along with other problems.[7]  Adults consistently blame modern technology as an impediment to young people “connecting” with nature.

A group of twenty-one young people, ranging in ages from 10-20, defied these prescriptive, stereotypical connections of modern technology with nature. With the help of committed lawyers and scientists, they filed a pathbreaking lawsuit in 2015. Styled Juliana vs. Trump, the case alleges that that the federal government violated the constitutional rights of young people in contributing to, and failing to act sufficiently against, climate change.[8] The plaintiffs, referred to as the “Climate 21,” demand that the court tell Congress and the President to devise and implement plans to alleviate the root causes of climate change.

Julia Olson, the main lawyer in the case, brought the children together as plaintiffs. Only a couple of months prior to the birth of her second son, Julia Olson sat through the documentary An Inconvenient Truth, which followed Al Gore giving his pathbreaking climate change talks. She remembers crying through most of the film, despite the fact that climate science was quite familiar to her as an environmental attorney. She felt overwhelmed by Gore’s message in the film, faced with the “added responsibility of ‘I’m bringing them [her children] into the world and I’m also leaving them with this planet that may not be safe for them.’” Faced with the film’s visceral message, Olson decided to act not only on behalf of her own children, but also for children globally and future generations.

Olson founded an organization called Our Children’s Trust, and began working toward a climate case, buoyed by a successful example of legal activism in the Philippines. [9] She specifically planned for children to be front and center, insisting that each plaintiff join the case of their own accord. Olson supported a view of legal activism as a path for children’s agency in the face of such an overwhelming problem as climate change. She noted that she teaches her children small measures, like refusing “plastic straws and toys with unnecessary packaging,” but realized that these typical adult prescriptions to environmental change simply lack effectiveness. “They’re going to need tools of how to live in [their] community and depend on people … and find ways to deal with the catastrophes that will come,” she notes.[10] Finding an empowered voice, as well as their place within a democratic republic reinforces that idea.

In most categories but geographic location, the young people Olson picked represent diverse characteristics. Eleven of the Climate 21 are from Oregon, and one hails from Washington state, making the Pacific Northwest overrepresented. Other areas have representation, though, with two plaintiffs from Colorado, and one each from Alaska, Hawaii, Florida, Arizona, Pennsylvania, Louisiana, and New York. The youngest plaintiff, Levi Draheim, is now 10, and was 8 when the lawsuit started; seven of the plaintiffs are now old enough to vote, and seven others are within two years at most of doing so. Gender and ethnicity show the greatest balance. The plaintiffs divide into 11 males, and 10 females. Almost half have non-white heritage, including African Americans, Native Americans, and Pacific Islanders. Overall, the case seeks most notably to demonstrate a broad array of inclusion, something for which the environmental movement has frequently been criticized.

The Climate 21 entered into the litigation for different reasons. Many of the plaintiffs come to their activism directly from their experiences in nature. Twenty-year-old Tia Hatton expressed a deep connection to the area near her home. She notes that “The sagebrush-filled desert skirts around [her home of Bend, Oregon], leading into National Forests, ancient rock formations, and vibrant rivers. This was my home growing up. The diverse landscapes of Bend became part of me … from a young age, I sought to protect this part of me.”[11]  Her enjoyment of Nordic skiing awoke her to the dangers of climate change, as she noticed snow levels regularly dropping. Levi Draheim, a 10-year-old boy from Indiatlantic, Florida, enjoyed going to the beaches regularly near his home. He watched and learned about progressive change in his area. He noted that “if the sea rises, our [home] could just be underwater. And our reefs … They’re just almost gone.  I can’t even go to the beach [anymore]. It gives me nightmares.”[12]  Deeply connected to the nature around their homes, Hatton and Draheim root their activism in dismay over real and future changes to places they love.

Jamie Lynn Butler of Arizona, and Jacob Lebel and Alex Loznak, both from Oregon, come from farming families. They each note that ever-increasing droughts and heat waves dramatically affected their families’ abilities to make a living. [13] Loznak noted that “during those heat waves, many of our trees died … We had plantations of timber trees that died. Some of our hazelnut trees died or needed intensive watering as a result.”[14] Butler remembers her family forced into selling off livestock when droughts made watering them prohibitive.[15] Contrary to Louv’s image of modern children as so unhealthily immersed with their technology, these young people demonstrate deep connections to nature that have informed and strengthened their beliefs in climate change. Rather than retreat into the world of video games, the Climate 21 chose to develop a political voice in the face of disenfranchisement.

In addition to a strong sense of place, many of the group also have deep interests in other environmental issues. Some pursue this through education. Hatton is an environmental and international studies major at the University of Oregon.[16] Senior Alex Loznak is a Sustainable Development major at Columbia University. Others have prior (and continuing) experience with activism. Jacob Lebel, a Canadian by birth who now lives in Eugene, Oregon, responded quickly to a threat by a Canadian company to build a natural gas pipeline close to his family’s farm. His activism helped to stop the plans for the pipeline. Expanding his geographical concern, he also protested at Standing Rock over the planned pipeline there.[17] Miko and Isaac Vergun participate in Plant for the Planet, a growing network of groups of children who help plant trees as a response to climate change.[18]  In 2014, Avery McRae (now 12), won a local award for raising more than $300 through a “fundraising party with games, crafts, and an introduction about the important role of salmon in the ecosystem.” She noted that her inspiration for the project came from “walking along Whitaker Creek … where she saw salmon spawning.”[19] Again, McRae demonstrates that her activism flowed from personal interactions with nature.

Families and culture provide an important entry point for activism for many of the young plaintiffs. Xiuhtezcatl Martinez, probably the most visible of the plaintiffs, cites his Aztec heritage as instilling a “sense of responsibility as a person to protect and connect and be a part of something.” Both of his parents also connected through activism – his mother founded an Earth Guardians school in Hawai’i and his father served as an Aztec “ambassador for Mexico.”[20] Through her extended family, New Yorker Victoria Barrett has viewed climate change both from the American perspective and the developing world. Even over her lifetime, her Honduran grandparents have steadily fought the rising levels of the sea near their home by building ever increasing barriers against flooding.[21]

Louisianan Jayden Foytlin followed the example of her mother, Cherri, in diving into activism. In 2010, “stage-managed trips” organized for the press by BP in the wake of the Deepwater Horizon disaster frustrated journalist Cherri Foytlin. When she hired a fisherman to take her into the Gulf, they found a pelican drenched in oil that died soon after. Determined to take action, Cherri accepted the leadership of Bold Louisiana, a group fighting oil development expansion. Although Cherri worried about her daughter’s activism, she also saw it as a constructive way for Jayden to participate. [22] Similarly, Jamescita Peshlakai, a state senator in Arizona who has made climate and environmental issues key to her service, influenced her Navajo daughter Jamie Butler to be active.[23]

Importantly, many of the Climate 21 use social media and technology to promote their activism and views of climate change. The young people refuse the negative nature-technology dichotomy so loudly espoused by adults. Martinez, who aggressively uses social media and performs hip-hop music on climate change, makes this connection explicit. He notes that the “reason I’ve been able to have such a huge reach with the Earth Guardian movement is because of social media, and the way it connects us all as a global family.”[24] Jacob Lebel, along with many others, posts videos on youtube to publicize issues. Lead plaintiff Kelsey Juliana, Journey Zephier, Alex Loznak, Nathan Baring, and Kiran Oommen all have Twitter and/or Instagram accounts to spread news of their activism. Others regularly use crowdfunding sources to publicize and seek support for their work. Juliana requested “adoption” to fund her participation in a 2015 climate march across the country. Miko and Isaac Vergun, as well as Zephier, used gofundme accounts to assist in traveling to various conferences and training sessions. Their highly developed use of social media allows them to connect with peers – using a media that they find familiar. Rather than technology precluding interaction with the environment, young people use it to spread their message and safeguard nature.[25]

Although parents and other adults have often been supportive, some adults have a more negative reaction, often rooted in concerns that political activism challenges adult domination over children. For example, Jayden Foytlin of Rayne, Louisiana, lost her best friend over her involvement in the case.  Her friend’s mother stated that “I don’t want nothing to do with children being in adult situations nor will any of our children. I think it’s pathetic that a young girl is even involved in something like this.”[26]  A frequent commenter on CNN’s stories, Balatonian, noted that “Kids must just remain good boys and girls, go to school and study. When they become responsible and sensible adults, then they can participate in voting for and criticizing their adult peers.” [27]  In both of these instances, adults reflected fears of children stepping outside of prescribed roles as a subjugated class to “inappropriately” challenge adults.

The case has been weaving its way through the rather byzantine legal system over the past two years. Unlike earlier efforts, however, Juliana v. Trump has achieved some notable successes. Judge Thomas Coffin recently set a trial date of February 5, 2018.  Judge Ann Aiken upheld his decision, noting that the case “is of a different order than the typical environmental case.”[28] The Trump administration reacted to this setback by filing a writ of mandamus with the Ninth Circuit Court of Appeals, where they objected both to the “the unlawful exercise of [the court’s] jurisdiction” and “the staggering burden imposed on the federal government by the ongoing discovery” in the case. They asked  that the appellate court order the lower court to dismiss the case. The Climate 21 filed a response, and eight groups supported them with amicus briefs. All now simply await the Ninth Circuit’s response or the beginning of the trial.[29]

Regardless of the outcome of the case, the efforts of the Climate 21 provide a valuable lesson in how children perceive and interact with the environment. Although they lack a formal political voice in society, these (admittedly exceptional) young people chose to participate in a legal, peaceful protest to affect change. Their actions should remind adults that the 21st century’s children maintain an intimate connection to nature that technology helps guide and promote. The stereotypical image of our current generation of children as lessened by their contact with technology needs serious reappraisal.

[1] The author would like to thank her husband, Sean Blum, for his invaluable help in negotiating the legal wranglings of this case, as well as Karen Ross and Kathryn Tucker for their comments on earlier drafts.
[2] Callum Borchers and Amber Phillips, “Transcript:  President Trump’s Remarks on Leaving the Paris Climate Deal, Annotated,” Washington Post, June 1, 2017, accessed June 2, 2017, https://www.washingtonpost.com/news/the-fix/wp/2017/06/01/transcript-president-trumps-remarks-on-leaving-the-paris-climate-deal-annotated/?utm_term=.7bd77ccfc164.
[3] “Nine in Ten 8th Graders Agree that Climate Change is Real and Human Activity Significantly Contributes to Climate Change,” Ipsos, March 13, 2015, accessed February 3, 2017,  https://www.ipsos.com/en-us/nine-ten-8th-graders-agree-climate-change-real-and-human-activity-significantly-contributes-climate?language_content_entity=en-us.
[4] “Kids These Days:  Why is America’s Youth Staying Indoors?” The Nature Conservancy, accessed September 5, 2017, https://www.nature.org/newsfeatures/kids-in-nature/kids-in-nature-poll.xml .
[5] Arne Duncan, Sally Jewell, Tom Vilsack, Jo-Ellen Darcy, and Kathryn Sullivan, “Let’s Get Every Kid in a Park,” The White House, February 19, 2005, accessed June 24, 2017, https://obamawhitehouse.archives.gov/blog/2015/02/19/let-s-get-every-kid-park .
[6] Hannah Malvin, “Every Kid in a Park Program Extended; 4th Graders Get Free Park Admission,” The Wilderness Society, July 28, 2017, accessed August 1, 2017, http://wilderness.org/blog/every-kid-park-program-extended-4th-graders-get-free-park-admission.
[7] Richard Louv, Last Child in the Woods: Saving Our Children from Nature-Deficit Disorder (Chapel Hill:  Algonquin Books of Chapel Hill, 2006).
[8] Originally filed in 2015, President Obama’s administration were the initial defendants in the case. Trump inherited that role with the change in administrations.  The 2015 case is the second case headed by Olson of children filing a case against the federal government for inaction over climate change in the United States.  Numerous cases at the state level have also been filed, without much success.
[9] John Sutter, “Meet the Mom Litigating the ‘Biggest Case on the Planet,’” CNN, September 13, 2016, accessed June 15, 2017, http://www.cnn.com/2016/09/12/opinions/sutter-julia-olson-climate-kids-profile/index.html .
[10] Sutter, “Meet the Mom Litigating the ‘Biggest Case on the Planet.’”
[11] Tia Hatton, Biographical entry, Planet Forward, accessed September 1, 2017, http://www.planetforward.org/users/tia-hatton .
[12] John Sutter, “Kids are taking the feds – and possibly Trump – to court over climate change,” CNN, November 10, 2016, accessed February 10, 2017, http://www.cnn.com/2016/11/10/opinions/sutter-trump-climate-kids/index.html.
[13] Sutter, “Kids are taking the feds – and possibly Trump – to court over climate change.”
[14] Dana Varinsky, “Meet the Kids Suing the US Government for Ruining the Earth for Future Generations,” Business Insider, November 19, 2016, accessed September 3, 2017, http://www.businessinsider.com/kids-suing-government-for-climate-change-2016-11.
[15] Emery Cowan, “As Climate Lawsuit Faces Challenge, Navajo Teen Contributes from Afar,” Arizona Daily Sun, August 30, 2017, accessed September 3, 2017, http://azdailysun.com/news/local/as-climate-lawsuit-faces-challenge-navajo-teen-contributes-from-afar/article_d399f129-e92c-5abd-81d0-9ddb8e6dabd6.html.
[16] Joe McCarthy, “Meet Tia Hatton, a Global Citizen of  America Who’s Suing Trump Over Climate Change,” Global Citizen, March 17, 2017, accessed September 3, 2017, https://www.globalcitizen.org/en/content/global-citizen-of-america-tia-hatton/ .
[17] Kim Brunhuber, “Why A Canadian Teen Joined American Youth in Suing U.S. Over Climate Change,” CBS News, January 16, 2017, accessed August 1, 2017, http://www.cbc.ca/news/world/lebel-lawsuit-climate-change-1.3931321 .
[18] “The Story of the First Oregon Academy,” January 12, 2015, accessed September 3, 2017, http://www.plant-for-the-planet.org/en/about-us/news/f1a2f4d7-9811-11e5-a0ac-902b34544d94.
[19] “Salmon Heroes,” Northwest Center for Alternatives to Pesticides, accessed August 26, 2017, http://www.pesticide.org/salmon_heroes .
[20]Zoe Loftus-Farren, “Xiuhtezcatl Martinez:  Youth Voices are Powerful,” Earth Island Journal, Spring, 2017, accessed July 13, 2017, http://www.earthisland.org/journal/index.php/eij/article/xiuhtezcatl_martinez/ .
[21] Mike Pearl, “Meet One of the Teens Suing the Federal Government Over Global Warming,” Vice Magazine, November 10, 2015, accessed February 20, 2017, https://www.vice.com/en_us/article/kwxpde/meet-one-of-the-kids-suing-the-federal-government-over-global-warming-381.
[22] Neela Banerjee and Zahra Hirji, “Meet the Louisiana Teen Who is Suing the Federal Government Over Climate Change,” InsideClimate News, June 13, 2017, accessed August 25, 2017, http://www.nola.com/environment/index.ssf/2017/06/climate_change_lawsuit.html; Mark Hefflinger, “Over 400 Gulf Protectors Rally and Testify Against Bayou Bridge Pipeline at Public Hearing,” Bold Louisiana, January 13, 2017, accessed August 25, 2017, http://boldlouisiana.org/bbhearing/ .
[23] Emery  Cowan, “As Climate Lawsuit Faces Challenge, Navajo Teen  Contributes from Afar,” Arizona Daily Sun, August 30, 2017, Accessed September 1, 2017, http://azdailysun.com/news/local/as-climate-lawsuit-faces-challenge-navajo-teen-contributes-from-afar/article_d399f129-e92c-5abd-81d0-9ddb8e6dabd6.html.
[24]Loftus-Farren, “Xiuhtezcatl Martinez:  Youth Voices are Powerful.”
[25] “Kelsey Juliana,” The Great March for Climate Action, 2017, accessed September 1, 2017, http://climatemarch.org/kelsey-juliana/; Pam Vergun, “Vergun Plant for the Planet Germany,”  go fundme, June 4, 2016, accessed September 1, 2017, https://www.gofundme.com/VergunsToGermany.
[26] Neela Banerjee and Zahra Hirji, “Fighting Climate Change Can Be a Lonely Battle in Oil Country, Especially for a Kid,” Inside Climate News, June 13, 2017, accessed June 13, 2017, https://insideclimatenews.org/news/13062017/kids-climate-change-lawsuit-childrens-trust-jayden-foytlin-louisiana.   The negative reaction may also have stemmed from Rayne’s mostly conservative atmosphere:  many families rely on the oil industry for jobs, and complaints against the government may be more likely to be seen as unpatriotic
[27] Balatonin, comment, November 14, 2016, on Sutter, “Kids are taking the feds – and possibly Trump – to court over climate change.”
[28] Ann Coffin, Opinion and Order, United States District Court for the District of Oregon, Eugene Division,  November 10, 2016, page 52, accessed June 1, 2016, https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf .
[29] A writ of mandamus allows the appellate court to review the decision of the trial court where proceedings are still ongoing.  For an outline of the progress of the case, as well as links to the legal filings, see the Our Children’s Trust website at:  https://www.ourchildrenstrust.org/us/federal-lawsuit/ .

Donald Trump: Bullying Role Model for Children

by Yale Magrass & Charles Derber, authors of Bully Nation. Written in response to this article.

In Bully Nation, we challenge the widespread idea that children are the main perpetrators or victims of bullying. Rather, we argue that kids who bully are mirroring behavior they see all around them in the adult world. Kids naturally mimic adults, whether it be their parents, their teachers or the President of the United States. In our corporate, militarized society, adults have to bully to get ahead or just survive. So our kids are exposed all the time to adults who are unwittingly teaching them the way to treat others.

President Trump is the most visible adult on the planet. And it is hard for anybody – whether child or adult – not to take notice. As President, he legitimates almost any conduct he does, including brutal bullying. As shown in our book and in our many subsequent op-eds, we know from numerous documented reports by teachers that school kids taunt their minority peers saying “The President is going to deport you – go home.” Or “Trump is going to build a wall to keep you out” and then they wall off the targets from playing with them or joining their play group. Or they make fun of disabled kids, the way Trump mocked a disabled reporter.

American children not only live in capitalism, but in the world’s dominant militaristic empire. Although Trump may be particularly blatant, as commander-in-chief, all presidents have the duty to be bully-in-chief. Even a softer president like Obama, who did not have an instinctive bullying personality, did not change this requirement.

Trump is under investigation and may face impeachment for his possible collaboration with another bully, Russian President Vladimir Putin, in interfering with the recent American election. While what Putin allegedly did may not be defensible, he is hardly alone. Israeli Prime Minister Benjamin Netanyahu more directly intervened in the American election process when he addressed Congress, hoping to rally support for Republicans.

American Presidents have a long history of bullying other countries, interfering with their democratic elections, and overthrowing leaders who dared to act contrary to American interests. When Columbia would not permit the United States to build a canal connecting the oceans to expedite corporate trade, President Theodore Roosevelt orchestrated a revolution and created a new country, Panama. In 1953, after the democratically elected Prime Minister of Iran Mohammad Mossaddegh nationalized Iran’s oil industry, the American CIA staged a coop which resulted in the restoration of Shah Mohammad Reza Pahlavi. The following year, President Eisenhower prevented an election in South Vietnam when he was told “a possible 80 per cent of the population would have voted for the communist Ho Chi Minh as their leader.” When, in 1973, democratically elected President Salvador Allende of Chile tried to nationalize mines owned by American corporations Kennecott and Anaconda Copper, the CIA had him overthrown and replaced by General Augusto Pinochet.

Yes, Trump is a bully who may inspire children to bully and it is essential to get him out of the White House. However, only a fundamental reorientation of American society, from top to bottom, will reduce bullying.

Charles Derber is professor in the Department of Sociology at Boston College.
Yale R. Magrass is Chancellor professor in the Department of Sociology/Anthropology at the University of Massachusetts-Dartmouth.

J Edgar Hoover’s Oversteps: Why FBI Directors are Forbidden from Getting Cozy with Presidents

By: Douglas Charles, author of Hoover’s War on Gays & The FBI’s Obscene File. (Article originally published by The Conversation.)

How are U.S. presidents and FBI directors supposed to communicate?

A new FBI director has recently been nominated, former Assistant Attorney General Christopher Wray. He will certainly be thinking carefully about this question as he awaits confirmation.

Former FBI Director James Comey’s relationship with President Donald Trump was strained at best. Comey was concerned that Trump had approached him on nine different occasions in two months. In his testimony to Congress, Comey stated that under President Barack Obama, he had spoken with the president only twice in three years.

Comey expressed concern about this to colleagues, and tried to distance himself from the president. He tried to tell Trump the proper procedures for communicating with the FBI. These policies have been enmeshed in Justice Department guidelines. And for good reason.

FBI historians like myself know that, since the 1970s, bureau directors try to maintain a discrete distance from the president. This tradition grew out of reforms that followed the often questionable behavior of former FBI Director J. Edgar Hoover, who served from 1924 to 1972.

Over this long period, Hoover’s relationships with six different presidents often became dangerously close, crossing ethical and legal lines. This history can help us understand Comey’s concerns about Trump and help put his testimony into larger context.

As the nation’s chief law enforcement arm, the FBI today is tasked with three main responsibilities: investigating violations of federal law, pursuing counterterrorism cases and disrupting the work of foreign intelligence operatives. Anything beyond these raises serious ethical questions.

From FDR to Nixon

When Franklin Roosevelt became president in 1933, Hoover worked hard to develop a close working relationship with the president. Roosevelt helped promote Hoover’s crime control program and expand FBI authority. Hoover grew the FBI from a small, relatively limited agency into a large and influential one. He then provided the president with information on his critics, and even some foreign intelligence, all while ingratiating himself with FDR to retain his job.

President Harry Truman didn’t much like Hoover, and thought his FBI was a potential “citizen spy system.”

Hoover found President Dwight Eisenhower to be an ideological ally with an interest in expanding FBI surveillance. This led to increased FBI use of illegal microphones and wiretaps. The president looked the other way as the FBI carried out its sometimes questionable investigations.

But when John F. Kennedy became president in 1961, Hoover’s relationship with the president faced a challenge. JFK’s brother, Robert Kennedy, was made attorney general. Given JFK’s close relationship with his brother, Hoover could no longer bypass his boss and deal directly with the president, as he so often did in the past. Not seeing eye to eye with the Kennedys, Hoover cut back on volunteering political intelligence reports to the White House. Instead, he only responded to requests, while collecting information on JFK’s extramarital affairs.

By contrast, President Lyndon Johnson had a voracious appetite for FBI political intelligence reports. Under his presidency, the FBI became a direct vehicle for servicing the president’s political interests. LBJ issued an executive order exempting Hoover from mandatory retirement at the time, when the FBI director reached age 70. Owing his job to LBJ, Hoover designated a top FBI official, FBI Assistant Director Cartha “Deke” DeLoach, as the official FBI liaison to the president.

The FBI monitored the Democratic National Convention at LBJ’s request. When Johnson’s aide, Walter Jenkins, was caught soliciting gay sex in a YMCA, Deke DeLoach worked directly with the president in dealing with the backlash.

One might think that when Richard Nixon ascended to the presidency in 1968, he would have found an ally in Hoover, given their shared anti-Communism. Hoover continued to provide a wealth of political intelligence to Nixon through a formal program called INLET. However, Hoover also felt vulnerable given intensified public protest due to the Vietnam War and public focus on his actions at the FBI.

Hoover held back in using intrusive surveillance such as wiretaps, microphones and break-ins as he had in the past. He resisted Nixon’s attempts to centralize intelligence coordination in the White House, especially when Nixon asked that the FBI use intrusive surveillance to find White House leaks. Not satisfied, the Nixon administration created its own leak-stopping unit: the White House plumbers – which ended in the Watergate scandal.

Not until after Hoover’s death did Americans learn of his abuses of authority. Reform followed.

In 1976, Congress mandated a 10-year term for FBI directors. The Justice Department later issued guidelines on how the FBI director was to deal with the White House and the president, and how to conduct investigations. These guidelines have been reaffirmed, revised and reissued by subsequent attorneys general, most recently in 2009. The guidelines state, for example: “Initial communications between the Department and the White House concerning pending or contemplated criminal investigations or cases will involve only the Attorney General or the Deputy Attorney General.”

These rules were intended to ensure the integrity of criminal investigations, avoid political influence and protect both the Justice Department and president. If Trump attempted to bypass these guidelines and woo Comey, that would represent a potentially dangerous return to the past.

Making, and Un-Making, Environmental Law: Earth Day’s Uncertain Dawn

By Karl Boyd Brooks, author of Before Earth Day; The Origins of American Environmental Law, 1945-1970

President Donald Trump is about as subtle as a claw hammer. Two weeks ago, he went to Environmental Protection Agency headquarters in Washington, D.C., to announce his disdain for nearly everything the agency had been doing during the Obama Administration. The presidential criticism amounted to a stunning rebuke of an agency that has, for over 45 years, earned solid marks from Americans for using law to safeguard their lives, communities, and future opportunities.

Presidents usually visit EPA to highlight some new initiative to take care of our environmental resources: the air, land, and water on which our lives, and our American prosperity and liberty, depend. President Trump went instead to lash the agency, demean its staff, and challenge the bipartisan legal legacy that has made Americans more prosperous and free by protecting their public health.  Picture the Trump/EPA moment as the President of the United States flashing his big, fat middle finger at the agency.

Those of us who have worked for EPA, and know first-hand about its people’s dedication and professionalism, found Trump’s symbolism telling:  there the president was — in the Rachel Carson Room, for gosh sakes — signing executive orders to speed up coal mining, roll back air quality protections, and undermine this nation’s signal effort to mitigate the grievous impacts of climate change. For good measure, President Trump paraded a handful of sheepish coal miners in front of his EPA ceremony to buttress his campaign pledge to “make coal great again.”

This month marks the 48th Earth Day. Throughout April, in events large and small, choreographed and spontaneous, Americans join their fellow passengers on Spaceship Earth to salute what Apollo 8’s astronauts, on Christmas Eve 1968, fondly called “our good earth.”  Now that the President of the United States has publicly trashed EPA, our premier environmental law enforcement agency, we should think a little harder about how our lives, our communities, and our legacy depend on environmental law.

EPA began in 1970. A very different kind of Republican president, Richard M. Nixon, created this new agency by welding pieces of other, older federal agencies into a single force combining environmental science, education, lawmaking, and enforcement. Of course, that was big news. And those were very different times than today. But we should widen our focus on EPA and 1970 a little to get the full story about the agency, to understand how radically disruptive and destructive President Trump’s environmental actions appear, and to appreciate how hard they will be to carry out. A little history about environmental law in America will put 1970 in perspective, situate EPA in a long and proud governmental tradition, and link today’s environmental challenges to those our grandparents faced after World War II.

A decade ago, I began writing Before Earth Day: The Origins of American Environmental Law. I wrote the book to answer a simple, but surprisingly elusive, question: where did American environmental law come from? I’d taught the subject at the University of Kansas (KU), to both undergrads and law students, for a number of years. I’d studied the American legal system and American environment systematically since beginning my history PhD work at KU in 1996.  And I’d spent much of my adult life working in and around law and the environment as a lawyer, elected legislator, and citizen activist in my home state of Idaho. And yet, despite some three decades of immersing myself in the challenges we create by living on this earth, I had no more clear idea about environmental law’s back-story than on the day I started law school in 1980.

Even if you’re not a lawyer, and even if you don’t put yourself in the “environmentalist” camp, you probably know a little about the famous federal laws that help keep us healthy and productive: the 1970 Clean Air Act, the 1972 Clean Water Act, and President Nixon’s 1970 pen-stroke that created the United Environmental Protection Agency. My book took a look at the “environmental decade” of the 1970s and found some important precursors to all those important laws. In fact, the more I looked into American environmental law’s “origin story,” the less I believed 1970 was the be-all end-all of the story. My book didn’t mean to diminish the hard-working, creative, and determined Americans who took up the fight against pollution and waste and injustice as the Seventies dawned. What Before Earth Day did is actually make those pioneers more traditional and less revolutionary, and their many accomplishments therefore more durable and defensible.

Law doesn’t just “happen.” Rules don’t appear spontaneously. Systems don’t come from nowhere. Environmental law, like environmentalism itself, emerged somewhat slowly after 1946. And like the ideas, imagery, and rhetoric of environmentalism, the principles and practices of environmental law have one foot planted in cautious tradition and one foot planted in bold reform. In fact, one reason why environmental law has stuck around so long is its very distinguished pedigree. Some of our most important environmental law principles date back to the early 20th century. Others emerged during the New Deal’s darkest days and the postwar era’s bright promise.

We should appreciate American environmental law for the careful, thoughtful, incremental advance it represents over the earliest American attitudes toward the natural world. At the origin of the American Republic, most laws encouraged people to own, use, and waste natural resources and systems. As late as 1900, few laws restrained factory-owners from pouring their waste into the air, water, and landscape. Even in the 1950s, government agencies – federal, state, and local – could plow a roadway through a wetland, or pour chemicals onto a forest, without telling neighbors, sharing the basis for their decision, or accepting constructive criticism. By 1970, though, even “Before Earth Day,” all those older ways of doing business (and damage) to the natural world had been replaced or substantially modified by the legal system we know today. President Trump may complain that dredging a wetland takes too long and emitting air pollutants has gotten too expensive. But that’s what environmental law has gained for us: breathing space, health benefits, and public participation.

President Trump and EPA Administrator Pruitt have announced drastic plans to shear off many key environmental law principles and to slash EPA’s capacity to make and enforce environmental law. What may restrain them as much as public outrage and business indifference (just check out how the energy industry has voted with its investment dollars against coal and for wind) is history and tradition. EPA may be only 47 years old, and it may have appeared when men tended their sideburns and women tottered on their platform shoes (not so different than today), but the underlying legal rules, principles, and precedents are far older. With roots that run so deep in American legal, cultural, and political soil, POTUS and Pruitt will find it harder than they imagine to tear up our environmental law system.

 

 

Karl Boyd Brooks is a Clinical Professor and Program Director, LBJ School of Public Affairs, University of Texas-Austin and former associate professor of history and environmental studies, and courtesy professor of law, University of Kansas; and U.S. Environmental Protection Agency Regional Administrator and acting Assistant Administrator

A President and Predators

by Frank Van Nuys, author of Varmints and Victims; Predator Control in the American West

9780700621316From the distraught and possibly jaundiced perspective of folks on the left wing of the political spectrum, “emboldened” has become a go-to word to describe opponents on the right. Conservatives. White nationalists. Anti-Semites. Racists. Xenophobes. Misogynists. All have been emboldened by the triumph of Donald Trump, not to mention liberated by the presumptive death of “political correctness.” For environmentalists, the new administration’s determination to steamroll “job-killing” regulations and Congress’s moves to eliminate nettlesome rules, deconstruct the Environmental Protection Agency, and gut the Endangered Species Act signify other alarming ramifications of that which the emboldened are capable.

Apparently, opponents of decades-long programs to reintroduce and facilitate the recovery of predators are feeling emboldened as well. The introduction of legislation in January to remove federal protection for wolves in four states – Michigan, Wisconsin, Minnesota, and Wyoming – underscored a potentially significant shift in the perpetual conflict over management of predators. Occurring just days before Trump’s inauguration, the bill may have reflected a sense of confidence on the part of farmers, ranchers, trappers, hunters, and others critical of wolf recovery that a Republican administration held considerable promise for transferring the bulk of wolf management decision-making from the US Fish and Wildlife Service to the affected states. In broader terms, elements intent on rolling back the government’s oversight in wildlife management and environmental regulation should feel a sense of giddy anticipation at the arrival of a new era of relaxed federal controls and states’ rights.

gray-wolf_01_ngsversion_1484679603276_adapt_676_1The Gray Wolf State Management Act of 2017 (H.R. 424 and S. 164) orders the Secretary of the Interior to reissue final rules issued in December 2011 for the Western Great Lakes, and in September 2012 for Wyoming, that had removed wolves from Endangered Species Act protection when not on federal properties subject to more focused protection regimes (such as national parks). Court challenges by wolf advocates had led to suspension of the delisting directives for those regions. Those advocates fear, and anti-wolf forces hope, that the administrative and legal stalemate can be broken and predator protections weakened, at least. By barring judicial review, the proposed legislation removes one of the key tactics utilized by wolf supporters since the first attempt to delist wolves in the Northern Rockies in 2002. That is nothing new, it turns out. Congress’s unilateral removal of protection for wolves in Idaho and Montana in April 2011, signed into law by President Barack Obama as part of a hard-fought compromise on enacting a budget and debt-relief package, also blocked judicial review.

Opponents of delisting claim wholesale destruction of wolf populations in the four states will certainly occur should the suspended rules be enacted, and they deplore the wolf hunting seasons that have taken place in Idaho and Montana, and, briefly, Wyoming, over the last several years. State game agencies maintain that it is in their interest to carefully monitor harvest levels to avoid relisting, and, frankly, population estimates in Idaho and Montana seem to bear that out. Idaho’s estimate of 786 wolves in 2015 represents an increase of close to 100 wolves over the 2012 estimate that I noted in Varmints and Victims. [https://idfg.idaho.gov/sites/default/files/idaho-wolf-monitoring-progress-report-2015.pdf ,p. 70] Montana’s estimated wolf population is still in the hundreds while roughly 4,000 range across the western Great Lakes region. Wolf backers may be suspicious of game agencies’ statistics, but there is no serious reason to doubt their general accuracy. Wolf management plans agreed to by federal and state officials require the states in the Northern Rockies to maintain a population of at least 150 wolves and at least 15 breeding pairs, and both Idaho and Montana exceed those minimums by significant amounts. To this point, natural increase and migration appear to have prevented crashing wolf populations despite hundreds lost to hunters and trappers each year. Unless Congress or the Trump administration decide to target those benchmarks, wolves are in no immediate danger of being annihilated when placed under state management.

Not surprisingly, when stories about the harm being done or contemplated by either emboldened “wolf haters” or defensive “wolf lovers” come across our social media feeds or appear in newspapers, we react according to our political and environmental predilections. I am as guilty of that as anyone. Yet, as someone who has been cheered by the slow and steady recovery of mountain lions, grizzly bears, and wolves in parts of the West, I remain cautious about jumping to conclusions about what impacts the proposed legislation will actually have. Judging from the relatively stable populations in the Northern Rockies since wolf hunting began a few years ago, even the most emboldened among the animal’s detractors in Wyoming and the Great Lakes states should not look forward to revival of a wolf-free environment. On the other side, friends of wolves can be skeptical but not necessarily panicked by the current drift of policy. It’s a long game, this tussle over predators. Stay vigilant, certainly, but it is unlikely, at least in this corner of the constant adjusting to life in the Alice-in-Wonderland fog of Trump’s America, that the apocalypse is nigh.

The Gray Wolf State Management Act of 2017 has recently been subjected to some informational hearing activity, and agricultural interests are pressing for expedited passage to provide additional protection to livestock entering calving season. Once the bill emerges from committee and becomes the subject of additional debate, amendment, and eventual passage, emboldened combatants on both sides will be ready to rumble. At least a constitutional legislative process still exists and wolves cannot be simply outlawed and their extermination decreed from on high sans some semblance of public input. Although a dubious proposition to the most jaded among the nation’s beleaguered citizenry, the United States still operates under the rule of law. The most enduring challenge for opponents of delisting and wolf hunting is indeed embedded in the intent of the Endangered Species Act itself, a fact all sides in the predator debates need to acknowledge. The goal of achieving recovery for a listed population, then delisting and allowing states to manage that population was designed to achieve measurable outcomes that would satisfy most, if not all, stakeholders. This is, according to media accounts, what the Fish and Wildlife Service would like to see happen. As much as it must pain millions of Americans who love wolves and hate the idea of losing even one to trapping or hunting, this proposed legislation does not represent a particularly radical departure from the always contentious process of making policy for predator management.

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Frank Van Nuys is professor of history at South Dakota School of Mines & Technology and author of Americanizing the West: Immigrants, Race, and Citizenship, 1890–1930.

Are Public Lands for Sale?

by James R. Skillen, UPK author of Federal Ecosystem Management; Its Rise, Fall, and Afterlife (2015)

The 115th Congress began with housecleaning. After battling the Obama administration for years, the Republican majority anticipated a fast-moving legislative agenda supported by President Trump. They started by brushing aside rules they felt hindered legislative work and by wielding the Congressional Review Act against President Obama’s late regulations. Voters looked on with a sense of relief or consternation.

us_federal_land_agencies_svgPublic lands are certainly part of the Republican agenda, both as a target for deregulation and as a resource for increasing oil, gas, and coal development. But could there be something even more significant in the works? Could Republicans be planning a campaign to sell or give away millions of acres of federally owned land? One Guardian article warned on January 19 that “Republican lawmakers have quietly laid the foundation to give away Americans’ birthright.” Specifically, they revised House rules so that public land sales and transfers will be treated as “cost free” actions that do not require budgetary review or offsets. This means one less hurdle for wholesale public land disposal. Elevating these fears, Congressman Jason Chaffetz (R-UT) introduced H.R. 621 on January 24 to sell 3.3 million acres of federal land to the states.

Has Chaffetz opened the floodgate of public land sales? If so, it would hardly constitute a political 9780700621279surprise. Western Republicans have criticized federal land ownership and management for decades, most famously in the Sagebrush Rebellion of the late 1970s and early 1980s. When Republicans took control of Congress is 1995, they proposed selling public lands to balance the budget. A number of state governments in the West repeatedly challenged the constitutionality of federal land ownership during the Obama administration. The occupation of Malheur National Wildlife Refuge in 2016 was only an extreme example of private opposition to federal land ownership. Republicans even made public land disposal part of the platform for the Republican National Convention, writing “Congress shall immediately pass universal legislation providing for a timely and orderly mechanism requiring the federal government to convey certain federally controlled public lands to states.” Republicans have long called for public land sales, and their control of both Congress and the White House has given them an unparalleled opportunity to act.

While the possibility of large-scale public land sales is real, history suggests that it remains unlikely. While Republicans have shown unified frustration with federal land management, they do not have a unified alternative. Some, particularly Tea Party Republicans, genuinely want to see large areas of public lands transferred to the Western states, which would manage them for a higher rate of economic return. Others, including many currently calling for public land sales, are not actually interested in land ownership; they are interested in land use. Members of Congress will likely find that steps to shift power away from environmental organizations and toward resource development interests will please both groups of Republicans, while proposals to sell large areas of federal lands will divide their constituencies and undermine their support.

Mr. Chaffetz found this when he proposed selling 3.3 million acres of federal land and faced immediate, bipartisan opposition. And he should not have been surprised. Last summer President Trump’s nominee to head the Interior Department, Ryan Zinke, resigned from the committee drafting the Republican National Convention platform over its position on public land sales, and Donald Trump, Jr. has been outspoken in support of public lands remaining public. Zinke and Trump, Jr. represent millions of Republican outdoorsmen and outdoorswomen who benefit from and support federal land ownership. And their opposition to H.R. 621 is particularly striking when one considers that it focused primarily on scattered tracts, rather than large, contiguous units of public lands, and that the Clinton administration initially selected these lands. Indeed, opposition reflects the remarkable level of distrust that Democrats and Republicans alike have in Congress to serve the national interest through land sales and exchanges.

So it seems unlikely that Congress will liquidate federal land holdings. It is far more likely that the Republican majority will make significant changes in public land planning and management to reduce environmental regulation and increase resource production, striking down administrative processes and requirements that stand in their way. For example, Republicans in the House voted to repeal the Bureau of Land Management’s new planning rules, Planning 2.0, which were finalized at the end of the Obama administration. The new rules were driven, in part, by frustration with the cost and length of land use planning and the additional financial and temporal costs of subsequent litigation. To address these problems, the rules require greater public participation, including earlier and more frequent participation; they emphasize landscape-scale planning issues that transcend public land boundaries; they require BLM to take scientific measurements of resource baselines that will be used to assess management actions in the future; etc. These rules, the BLM hoped, would produce more robust plans that stand a better chance of surviving legal challenge and give land managers better footing when they make subsequent decisions.

As Republican critics understand correctly, though, Planning 2.0 will impact the current balance of power in public land planning. Though it is difficult to predict the exact impacts of Planning 2.0, two things seem clear. First, it would likely make participation more accurately reflective of diverse interests in the public lands, giving environmentalists and resource developers, local citizens and national organizations, a place at the table. Second, it would shift the focus of planning from land uses to land and resource conditions, and this is a shift that environmentalists have sought for decades. Because of these and other potential impacts, the Western Governors Association, the oil and gas industry, and the livestock industry all opposed Planning 2.0, arguing that it would unfairly privilege environmental protection and the voice of national organizations over economic development and the voice of local communities. As congresswoman Liz Cheney (R-WY) put it, Planning 2.0 “represents a federal power grab that ignores expert knowledge and undermines the ability of state and local governments to effectively manage resources and land use inside their own districts.”

If history is at all predictive, the most important battles waged by the Republican majority in Congress and the White House will not be over selling public land; they will be battles over public land planning and management. And it is here that they are most likely to build their legacy of reduced regulation and increased resource development.

pensiveskillenJames R. Skillen is assistant professor of environmental studies at Calvin College in Grand Rapids, Michigan.

Rebuilding Trustworthy Politics in a Post-Truth Age

by Nadia Hilliard – UPK author of The Accountability State; US Federal Inspectors General and the Pursuit of Democratic Integrity (April, 2017)

It will not surprise American voters that the Oxford English Dictionary declared the 2016 Word of the Year to be “post-truth.” The term resonates with all sides of the American electorate who, confronted with “fake news” and “alternative facts,” have struggled to know which facts are trustworthy enough to ground their political opinions and decisions. Yet while partisanship is always a feature of politics, it is rare for partisan arguments to be decoupled so starkly from truth, and for citizens to be so untrusting of the media and public officials. To whom can voters – and elected officials – turn for legitimate facts and narratives in this era of post-truth politics?

accountability-stateInspectors General (IGs) have quietly operated under the radar in the federal bureaucracy since the late seventies, auditing, investigating, inspecting, and acting as in-house management consultants. They are presidential appointees, but are statutorily required to be non-partisan, and enjoy bipartisan support. They are, moreover, Congress’s “eyes and ears” in the executive branch, and depend on congressional approval for their funding. But they are also full members of their host departments, and report directly to their department head, and indirectly, to the president. This divided loyalty reinforces their independence from any single institutional or partisan commitment.

Although individual IGs have at times been mired in scandal (recall the VA IG’s travails in 2015, or the State Department’s disgraced IG in 2007), their profile and reputation has grown in recent decades, and they are cited more and more frequently and positively in the press. More important, the outcomes of their reviews are trusted by Congress, and serve as an alternative source of facts to the host of incompatible narratives bandied about in the blogosphere. They are respected on both sides of the aisle, providing political leaders as polarised as Darryl Issa (R-CA) and Elijah Cummings (D-MD) with the rare opportunity to agree in their support of IG work.

Two major IG reviews are now underway to shed light on recent landmark political phenomena: FBI Director James Comey’s public suggestion of wrongdoing by Hillary Clinton in the weeks leading up to the presidential election, and the administrative unfolding of the Trump administration’s Travel Ban. While IG reviews are certainly used to partisan ends after their release, the best reviews refrain from drawing conclusions as a prosecutor would.  For instance, State Department IG Steve Linick’s June 2016 review of Hillary Clinton’s emails provided informational fodder for both Clinton’s supporters and detractors: while some media outlets focused on the finding that Clinton had indeed used a private server extensively, and criticized her heavily, others emphasized that the review unearthed long-standing State Department practices of avoiding department servers, and that she had not in fact broken any laws or even contravened any departmental policies.

1024x1024Justice IG Michael Horowitz, spearheading the Comey review, and DHS IG John Roth, leading the Travel Ban review, have both earned their laurels as trusted, rigorous IGs. The Justice Department Office of Inspector General has long served as a beacon for rigorous, non-partisan reviews accepted and respected by Republicans and Democrats alike, and Horowitz’s reviews have followed in this tradition.  Similarly, the DHS OIG investigation of the implementation of the travel ban equally promises to establish an accurate picture of the administrative decisions shaping the roll out of the recent executive order.

Arguably, the IGs are very well poised to investigate both of these events. IGs focus on procedure and adherence to rules and norms above all, and in both cases, much at stake regards adherence to protocol. Whether or not Comey broke department policy by announcing his suspicions of Clinton is a question separate from the possible partisan motivations he might have had in doing so, just as the legal status of departmental compliance with Trump’s executive order and the subsequent nullificatory court order is distinct from the question of overall discriminatory intent. It is not the IGs’ role to prosecute, or otherwise to initiate a political battle. Their immediate procedural focus permits the IGs to avoid the wider political significance of the events when constructing the narrative, leaving the political battle in the hands of elected officials, the media, and citizens. This deserves to be emphasized: IGs are unelected bureaucrats, and their legitimacy depends on their commitment to non-partisan work.  The facts need to be established outside of the political fray before any political battle can begin. Yet the political significance of their reviews cannot be understated.

If these reviews are welcomed as trustworthy sources of fact, there remains a pressing political question, with grave importance for the integrity of the political system: will these investigations go through without undue interference? Murmurs that the Trump administration contacted a handful of IGs to ask for their resignation prior to his inauguration bubbled into a hearing, and ultimately led to the Trump team’s abandonment of these plans.  Traditionally – at least since their appearance in 1978, and not withstanding Reagan’s routinely criticized, comprehensive sacking of the first IG class in 1981 – new administrations do not replace entire cohorts of IGs.  Stability of office and continuity of leadership affect an IG’s capacity to provide robust, non-partisan oversight of federal departments and agencies.  Despite having made challenges to other political institutions designed to keep the executive in check, the Trump administration has thus far refrained from a wholesale ousting of the current IG class. Yet the possibility remains for the president to oust any single IG – especially ones who investigate sensitive topics or unearth unsavory details about his policies.

The first step in rebuilding a functional political system, including restoring a healthy and vibrant ideological center, is to have common institutions trusted by all. In this post-truth era, we need trusted public intermediaries who not only have unfettered, protected access to the sources of fact – the relevant documents and interviews – but also independence and a commitment to offering non-partisan narratives to Congress and the public.  It is rare in this polarized age for an institution to command such bipartisan support and enthusiasm, and even more so for specific individuals – such as Horowitz and Roth, among many others – to command the respect and praise of both sides of the aisle simultaneously. The IGs’ legitimacy provides a starting block for rebuilding a healthy politics.

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Nadia Hilliard is Junior Research Fellow in politics at Balliol College, University of Oxford and a post-doctoral researcher at City University in London. Her book, The Accountability State; US Federal Inspectors General and the Pursuit of Democratic Integrity, will be released in April, 2017.

Off The Shelf: Frederick Douglass, 2008

“Frederick Douglass is an example of somebody who’s done an amazing job and is being recognized more and more, I notice.” – President Trump, 02/01/2017

Recent comments by President Trump have shone a light on the life of Frederick Douglass. Douglass (1818-1895) was a prominent American abolitionist and author who escaped slavery at the age of 20 and published three autobiographies.

img_9341In his 2008 UPK book, Frederick Douglass; Race and the Rebirth of American Liberalism, Professor Peter Myers examines the philosophic core of Douglass’s political thought, offering a greater understanding of its depth and coherence. He depicts Douglass as the leading thinker to apply the Founders’ doctrine of natural rights to the plight of African Americans—an activist who grounded his arguments on the rights guaranteed by the Constitution and the inherent injustice not only of slavery but of any form of racial superiority.

“The unifying core of Douglass’s political thought, as I understand it, consists in his distinctive interpretation of the national rights doctrine, applied particularly to race relations in the United States,” Myers writes. “His central claims can be simply summarized as follows: (1) the natural rights doctrine, as epitomized in the Declaration of independence, is true as a set of moral prescriptions and sanctioned as a body of moral laws; (2) institutional systems of slavery and racial supremacy are unjust and ultimately weak; and (3) the national mission and the destiny of the United States are to become an exemplar of harmonious, integrated equality among the racial and ethnic varieties of humankind.”

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After nearly a decade in print, Frederick Douglass remains a landmark study of the political and moral thinking of an authentic American original.

“Douglass shines in Myers’s account as a political thinker that merits consideration alongside antislavery contemporaries like Abraham Lincoln, William Lloyd Garrison and Charles Sumner,” writes Lucas Morel, author of Lincoln’s Sacred Effort: Defining Religion’s Role in American Self-Government. “Myers captures Douglass’s vivid discontent with white American practice, as well as his monumental hopefulness that persistent moral agitation could reform the nation… A penetrating study.”

Peter C. Myers is professor of political science at the University of Wisconsin-Eau Claire.

A Review of President Barack Obama’s Clemency Record

by Jeffrey Crouch – American University & UPK Author

President Donald Trump made no secret of his opinion of Army Private Chelsea Manning’s critique of former President Barack Obama when he tweeted: “Ungrateful TRAITOR.” Yet before considering what President Trump might do with the clemency power, let’s take a last look at President Obama’s record.

Perhaps the most controversial clemency decision of the Obama years came on January 17, 2017, when he commuted Manning’s 35-year prison sentence. Manning has served about seven years, and will be able to walk out of prison on May 17. As someone who turned over classified documents to WikiLeaks, she is one of the more recognizable recipients of Obama’s presidential mercy.

fullsizerenderGiven Obama’s long-standing preference for avoiding high profile clemency cases, it was somewhat surprising that he saw fit to grant clemency to Manning at all. Still, the president had hinted a few days earlier that clemency might be in the cards. His press secretary took pains to distinguish between Manning and Edward Snowden, another infamous leaker of classified materials. Snowden has been living in Russia since 2013. Unlike Manning, he did not receive presidential mercy.

The Numbers

For the first three-quarters of his presidency, Obama was not much different from George W. Bush. In eight years, Bush had pardoned 189 offenders and commuted 11 sentences out of roughly 11,000 applications for clemency. By December 17, 2014, President Obama’s clemency record was sparse — he had pardoned only 64 and had commuted just 21 sentences. However, by the time Obama left office, he had made a remarkable turnaround, pardoning 212 and commuting a whopping 1,715 sentences. Of course, one must consider Obama’s totals alongside the huge number of applications he received: 3,395 petitions for pardon and 33,149 requests for commutation. He received many, many more applications for clemency than any of his recent predecessors.

Why the influx of applications? Obama launched a new clemency initiative in April 2014. The administration wanted to prioritize for clemency review those offenders who met a number of specific criteria. These criteria include the fact that “[t]hey are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today,” and that they are otherwise low risk, minor offenders.

crouchIn response to Obama’s announcement, five interested groups pooled resources and formed a new organization, Clemency Project 2014, to help locate and direct good candidates for clemency to the Department of Justice. Many applicants – and later, many commutation recipients – were low-level drug offenders who were serving disproportionate sentences. With all of this activity brewing, Obama slowly picked up the pace of pardoning. At the same time, he offered an enormous number of sentence commutations, starting with a rather modest 22 on March 31, 2015 and, after several other batches, ending with his last group of 330 on January 19, 2017.

Obama’s final total of 212 pardons is a bit low for a recent two-term president: alongside George W. Bush’s totals mentioned above, consider that Bill Clinton pardoned 396, George H.W. Bush pardoned 74 (in one term as president), and Ronald Reagan pardoned 393. However, Obama’s 1,715 commutations put Obama in a class by himself: Clinton commuted 61 sentences, while George H.W. Bush (again, in a single term) commuted only three and Ronald Reagan commuted 13 sentences.

The People

Aside from the Manning commutation, Obama made a few other higher profile clemency decisions on his way out the door. He pardoned General James E. Cartwright, formerly a trusted advisor on foreign affairs issues, for making false statements to the Federal Bureau of Investigation. Cartwright received Obama’s good news before he was sentenced for his offense. Obama also commuted the 55-year prison sentence of Oscar Lopez Rivera. Lopez was a leader of the pro-Puerto Rican independence group, “FALN,” and had been in prison for 35 years. Interestingly, Lopez and other members of his organization had received the option to accept conditional clemency from President Bill Clinton in 1999, but Lopez declined. Other famous figures that received clemency from Obama in his final days include a pair of tax offenders: Ian Schrager, credited with establishing Studio 54 and luxury hotels, and Major League Baseball Hall of Famer Willie McCovey.

Despite considerable press attention, Obama declined to offer clemency to several notable offenders. Perhaps most prominently, he passed on pardoning Edward Snowden (as noted earlier) and Leonard Peltier, a Native American activist who is in prison after being convicted in 1977 of shooting and killing two FBI agents. Unlike Clinton and George W. Bush, who each granted one posthumous pardon, Obama decided against doing so, although he had heard from supporters of the late boxer Jack Johnson and late “Back to Africa” proponent Marcus Garvey.

Which brings us back to President Trump. When might he decide to exercise his clemency power? If he follows the example of his two most recent predecessors, it will be a while – both George W. Bush and Barack Obama waited nearly two years before offering pardons or commutations. Trump may not pay attention to clemency for a while either, considering his ambitious legislative agenda that includes building a border wall, implementing tax reform, and other large-scale projects. That would be a shame, because the presidential pardon power has for hundreds of years been an important tool for presidents to use to show mercy. It will be ready for Trump when (or if) he decides to call upon it.

 

Dr. Jeffrey Crouch is an assistant professor of American politics at American University. He is the Reviews and Book Editor for AU’s Congress & the Presidency journal. His first book, The Presidential Pardon Power, was published by the University Press of Kansas in 2009.

Who’s Intolerant? Hamilton, Trump, and a Klan Essay Contest

By Kelly J. Baker

On Friday, November 18th, vice-president elect Mike Pence attended Hamilton, the immensely popular and award-winning Broadway play, which might have been unremarkable if not for the fact that the Hamilton cast took the opportunity to speak directly to Pence at the end of the show. The New York Times reports that Brandon Victor Dixon, who plays vice-president Aaron Burr, read a “statement emphasizing the need for the new administration of President-elect Donald J. Trump, a Republican, to work on behalf of all Americans.”

Dixon said: “We, sir — we — are the diverse America who are alarmed and anxious that your new administration will not protect us, our planet, our children, our parents, or defend us and uphold our inalienable rights. We truly hope that this show has inspired you to uphold our American values and to work on behalf of all of us.” Pence remained to listen to the whole statement and made no comment.

Perhaps, unsurprisingly, president-elect Trump took to Twitter to complain that Pence “was harassed last night…by the cast of Hamilton.” It’s a hard task to make the cast’s respectful statement to Pence appear as harassment, but Trump attempted to while further demanding an apology from the cast. According to Trump, the cast of Hamilton is “rude” and protesters  of the election are “unfair.” And yet, his Twitter stream shows no mention of the sharp increase of hate crimes since the presidential election, which constitutes real harassment and endangerment. The president-elect would like to claim that he, and white America, are under siege. That white Americans are under threat from multicultural America. That white Americans are the real victims, not those so most recently victimized by hate.

Trump’s rhetoric, and his attempt to shift blame, has reminded me of the 1920s Klan, which I study, since I learned there was a chance he would run for president. His campaign slogan of “Make America Great Again” was remarkably similar to the 1920s Klan’s appeals to white Protestants.

9780700624478When most people imagine the Klan, they imagine obvious and heavy-handed racism like the Klan of the 1950s and 1960s, but the 1920s order was more mainstream in their white supremacy. Their attempts to win the hearts and minds of white men and women were bolstered by the commonness of racist thought and action. And their rhetoric, emphasizing white Protestant nationalism, transformed them into victims of the changing demographics of the nation. The Klan claimed that Catholics, Jews, immigrants, and African Americans proved dangerous to a nation that the order believed was created by white Protestants for white Protestants. The Klan attempted to demonstrate they were threatened and harassed by non-white and non-Protestant people rather than being themselves threatening harassers.

One way that the Klan tried to accomplish this was relying on the language of tolerance to promote racism and religious hatred.

In 1929, the Ku Klux Klan’s national newspaper, The Kourier Magazine, hosted an essay contest, “What is Intolerance?” The editor explained, “We have always been accused of INTOLERANCE. We know we are not guilty, and this contest should make clear our position and justify it.” The Kourier offered a $50 reward to the best essay, though the newspaper never announced the winner.

For a contest explicitly about intolerance, the guidelines focused, instead, on defining tolerance. The editor urged contributors to write about whether they should tolerate people who disagree with them and when tolerance is no longer a feasible option. The essays interrogated the concept of tolerance as a method to defend the Klan’s intolerance.

In total, the Kourier published eleven essays, including “No Tolerance for Intolerance,” “The Intolerance of Christ,” and “Toleration of Cess-Pools.” The essay writers, both white men and women, attempted to define tolerance and intolerance as separate terms, but the terms emerged more often as synonyms rather than opposites.

For most of the writers, one thing was abundantly clear: Tolerance had limits. Threats to personal identity, religious faith, and nation were unbearable, and the enemies of the Klan were cast as the truly intolerant. The essayists emphasized the long history of Catholic intolerance towards Protestants while another Kourier article in the issue declared that President Lincoln was against racial equality for African Americans. One writer even argued that God was intolerant, so Klan members could be too.

The essays demonstrated that Klan members found tolerance to be an unbearable compromise that proved dangerous to their vision of white Protestant America. Tolerance allowed all kinds of social degradation. A Klanswoman argued that prejudice could be just if it was used to protect the nation’s interests, so intolerance was often righteous choice. For the Klan, particular people, Catholics and African Americans, were never tolerable because they threatened social stability. Tolerance might lead to radical changes in American society in politics, religion, and cultural norms that would displace white Christian dominance. If the 1920s Klan tolerated Catholics or granted equality to African Americans, then Klan members feared that America would decay under the assault of “foreign” peoples, ideas, and religions.

By defining tolerance as problematic compromise, intolerance became the Klan’s preferred method of engaging the world. In “The Tolerance of Protestants,” the essayist noted: “Tolerance ceases to become a virtue when it is used too extremely; when we place too much faith in our fellowmen such tolerance cannot be accepted.”

The danger the Klan feared was too much faith in fellow human beings. Suspicion of others is easier than trust. Intolerance is easier than tolerance. The Klan could claim the mantle of tolerance as long as its members did not have to practice it. Essay by essay, intolerance became a virtue and tolerance was a threat too great to chance.

To put it more starkly, the Klan could be tolerant until some idea, religion, or person questioned the order’s vaunted vision of the white, Protestant nation. When one’s values were threatened, one could no longer be tolerant.

The Klan’s rhetoric of tolerance and intolerance is much more complicated than simple admonitions of prejudice and easy labelings of victims and victimizers. In Regulating Aversion, political theorist Wendy Brown reminds us that tolerance is never an innocent virtue but rather it is a discourse of both power and de-politicization. Tolerance functions often as a supplement to equality rather than as the method to achieve civil rights for the tolerated. Thus, it should not be surprising that the “intolerant” would employ this language to secure political power, media attention, or legitimacy.

And so it is neither surprising that the president-elect, who ran a campaign emphasizing intolerance for people of color, women, immigrants, Muslims, and other groups of people, would fill spots in his administration with those who profess intolerance and actively work against the civil rights of particular groups of American citizens. Like the Klan, the president-elect wants to claim that he and the vice-president-elect and their supporters are the targets of harassment from “diverse America.” Those of us who understand our diverse America and imagine a more inclusive nation, know who is actually intolerant and where the threat lies.

Kelly J. Baker is the author of Gospel According to the Klan. She is currently the editor of Women in Higher Education and a freelance writer.