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.

2016 Elections: A Guide for the Perplexed

9780700622764By Dick Simpson and Betty O’Shaughnessy, Authors of Winning Elections in the 21st Century

Trump triumphed. Since he will become President of the United States, his victory matters. If he carries out his platform promises, he will create major changes in tax policy, immigration, foreign policy, Supreme Court appointments and, therefore, in social policies like abortion and gay rights. There will be broad resistance to those Trump policies but by executive orders and the momentum of the first hundred days of his presidency in Congress, he will get his way in changing the country’s direction in the beginning.

In Trump’s victory charisma and anger won over a less charismatic candidate following a careful game plan.

After this election, the Republicans will have a narrower margin in the Senate of probably 52-48 with Congresswoman Tammy Duckworth’s win in Illinois and a Democrat leading in New Hampshire. But to block any measures President Trump proposes, like destroying Obamacare, would require some moderate Republicans to join with the Democrats.

In the House of Representatives Democrats will probably hold 195 seats to Republican’s 240, too few to block Trump proposals. As a result, the Republicans will be firmly in control under Speaker Paul Ryan, but he may not be lock-step with Trump on all issues.

There were other lessons. Every election seems to be more expensive than the last. 2016 was one the most expensive elections in American. At least $1.3 billion was spent by Presidential candidates, $1 billion by candidates for the House of Representative, and $700 million on the U.S. Senate contests. Contested congressional election candidates spent at least from $2 million each and many spent much more. U.S. Senate races often cost $20-$40 million or more depending on outside PAC spending. In states like Illinois, a half-dozen state legislative districts spent more than $2 million on each of the opposing candidates which is a new record in Illinois. In the most expensive race for Illinois State Legislature, the candidates spent from $106 – $133 for each of the 20,000 votes they each received.   We desperately need real public funding of campaigns or “Small D Democracy” as advocates call it.

After 2014 there were 20 women in the U.S. Senate and 84 in the House of Representatives. Having Hillary Clinton as a major party Presidential nominee was a breakthrough for women this year, but women still have a hard time gaining parity with men at all levels of government. These 2016 elections only slightly improved situation as women hold only 20% of all elected offices. This needs to change, just as more Latino and Asian-Americans need to be able to run strong campaigns and get elected if our government is to look more like the U.S. population.

There were several reform experiments in the 2014 and 2016 election cycles. In many states, voters can register or change their registration online. Early voting has been extended brought to some college campuses. More people voted early than ever before. Absentee voting can now happen without giving any reasons in most states. And voters were still allowed to register in many precinct polling places even on Election Day. However, Automatic Voter Registration has not yet been widely adopted even though it would allow more people to participate and vote without artificial barriers.

Much of this year’s elections happened behind the scenes at both the national and local elections. Our book Winning Elections in the 21st Century decodes how voter analytics, social media, and old-fashioned door-to-door campaign work proceeded out of the spotlight. It also provides a handbook for those who are dissatisfied with candidates who were elected from local school board member to the President to win with popular participation in the elections of 2018 and beyond.

So what is next? Those who support President Trump will work to help him to have a successful first 100 days in office. Those who oppose President Trump and his policies will work to build resistance as many did when they opposed Reagan’s economic policies back in the 1980s. But the opposition must present a clear alternative and sell it to American voters if they are to win future elections.

In the end, this was an election in which the majority of American voted no against the elites and the status quo. There have been more than 4.4 million home foreclosures since the Great Recession began in 2008. There have been no real salary increases for the working and middle class. Unemployment, especially in ghetto areas and among young adults, remains too high. Americans were mad as hell and by their vote they signaled they aren’t going to take it anymore.

Intellectual Conservatism Cannot Save the Mainstream American Right

Dr. George Hawley, author of Right-Wing Critics of American Conservatism, has been busy. Of course, when you start this election year publishing a book about the troubles plaguing the American Conservative movement, it’s hard to stay silent. Dr. Hawley has been closely monitoring the presidential campaign and possible fallout from the Republican’s internal bickering…

By Dr. George Hawley

9780700621934As Donald Trump rampaged through the already fragile infrastructure of the American conservative movement, we saw justified panic on the mainstream right and Schadenfreude on the left. Superficially, at least, the Trump campaign seemed to undermine what little intellectual respectability the right possessed, returning us the days when Lionel Trilling could reasonably state that conservatives do not “express themselves in ideas but only in action or in irritable mental gestures which seek to resemble ideas.” It makes sense that those laboring to foster and maintain a high-brow, literate conservatism would distance themselves from Trump’s brash, populist nationalism. Unfortunately for the #NeverTrump conservatives, the intellectual wing of the American conservative movement is simply not a plausible alternative to Trumpism.

donald-trump-supporter-yells-sieg-heil-nazi-salute-at-las-vegas-rallyConservatives are always quick to declare that “ideas have consequences” – a rallying cry taken from the title of Richard Weaver’s most important book. They argue that, although the left is a collection of interest groups expressing a litany of grievances, conservatism is based on principles. Conservatism officially rejects identity politics; as Ramesh Ponnuru once wrote in National Review, conservatives “hoist their ideas on flagpoles and see who salutes.”  Trump, in contrast, is a pure identity politics candidate, and one with little interest in abstract principles.

Progressives may roll their eyes at the suggestion that conservatives are deeply invested in political theory or that the conservative movement has a long history of rejecting identity politics. But intellectually serious conservatives do view political and economic theory as important, and they try to frame their arguments using universal principles rather than the language of interest-groups.

More so than liberals, conservatives are deeply concerned about their own movement’s intellectual pedigree. This has been true since Russell Kirk wrote The Conservative Mind. Scouring the internet, it is easy to find lists of sites explaining which books all conservatives should read. Conservatives believe reading books by the founding conservatives is more than important; it is indispensable. As conservatives shudder at Trump’s position at the top of the GOP ticket, they regularly declare that the conservative movement has lost its way, that is must return to its roots, to the conservatism of William F. Buckley and Frank Meyer and the other icons of the right. Just re-read back issues of National Review, the thinking goes; they will tell you what you need to know. Columnist Matt Lewis made an argument like this in his new book, Too Dumb to Fail.

When looking for a usable model for the American right, conservatives point to their own movement’s canon – those books written between the mid-1940s and the early 1960s. From The Road to Serfdom by F.A. Hayek to The Conscience of a Conservative by Barry Goldwater, a small number of books forged the heart of America’s post-war conservative political philosophy. For a discussion of the importance of these books and their authors, I recommend Michael Lee’s excellent work, Creating Conservatism. Among these books written by the founding fathers of conservatism, we can find flashes of genuine brilliance. Today’s conservatives are right to admire what was produced by Weaver, Kirk, Meyer, Hayek, Friedman, Burnham and the other journalists and scholars that created the intellectual foundation for the conservative movement.

Unfortunately for conservatives, the intellectual wing of the conservative movement is not actually an alternative to the populist nationalism represented by Donald Trump. Aside from a few stale talking points, these conservatives have little to offer 21st century America. The arguments made in the conservative classics are completely disconnected from contemporary problems and can provide little guidance for today’s policymakers. For all their virtues (and they had many), Russell Kirk, Whitaker Chambers, and Richard Weaver are now largely irrelevant. A policymaker formulating solutions to growing economic inequality, terrorism, a broken immigration system, and all the other salient issues of 2016 will find little guidance from the conservative canon.

Many of the most important works from the early conservative movement were focused almost single-mindedly on the Cold War or on the folly of planned economies. Yet those battles are over. On these issues, the conservatives won, and won decisively. The Soviet Union is not coming back, and the mainstream left has lost interest in state-directed economics. Conservatives can justifiably boast about this victory, but the conversation has since moved on. Contemporary conservatives that insist their future leaders understand the problems with central planning would be equivalent to 1887 Republicans demanding their leaders study the case against slavery. They are building up an arsenal for a battle that is already won.

The left is no longer fighting to nationalize industries; for the most part, the left is fighting to strengthen the social safety net and increase economic equity within a capitalist framework. The mainstream left made peace with free enterprise long ago. When the debate is framed in these terms, a strong knowledge of the errors of socialism is not particularly helpful. If the debate has transitioned from being about ownership of the means of production to questions about the role of government in guaranteeing some minimal level of economic welfare for all, certain aspects of the canon may actually be harmful to the conservative cause. In The Road to Serfdom, Hayek actually expresses positive sentiments toward welfare policies, stating, for example, that “there is no reason why in a society which has reached the general level of wealth which ours has attained the first kind of security should not be guaranteed to all without endangering general freedom.”

Although conservatives could justifiably crow about the end of the Cold War, on other issues, the conservatives lost – and lost badly. Unfortunately, the conservative canon does not show a way forward after the left triumphs. Much of the conservative canon was written by authors that viewed the United States as a conservative country, arguing that diligent effort could keep it a conservative country. National Review promised in its first issue to “stand athwart history, yelling stop.” Yet history did not stop in 1955. On multiple issues, especially cultural issues, the left was victorious. If history came to a halt right now, it would simply calcify societal developments that conservatives opposed.

Conservatives love to point to Edmund Burke as their inspiration, especially Russell Kirk’s interpretation of Burke. Yet this brand of Burkeanism is similarly futile for conservatives in 2016 America. Many of the left’s most resounding victories on issues of culture and economics occurred a generation or more in the past. To an important degree, progressive egalitarianism, supported and promoted by a large central state, is now an American tradition. Reversing these liberal victories in any substantive way would require revolutionary changes at this point. Where does that leave the traditionalist working from a Burkean framework? According to Russell Kirk, “Conservatism is never more admirable than when it accepts changes that it disapproves, with good grace, for the sake of a general conciliation; and the impetuous Burke, of all men, did most to establish this principle.” This brand of conservatism can only lead to a society that moves like a ratchet in a more liberal direction. At most, it can slow the rate of change. Perhaps this is the ideal role for conservatism. But this kind of conservatism surely does not offering an inspiring vision. Who would sign up for such a movement?

It is true that the founding fathers of the post-war American conservative movement were deeper thinkers than the most prominent conservative voices of today. But even the most brilliant conservatives of the 1950s have few valuable insights for current activists and policymakers. This is not a criticism of their work; they were dealing with ephemeral issues of their day, and often discussed them cogently and persuasively. But the world is now very different.

Besides the end of the Cold War, 2016 differs from the 1950s in other important ways that undermine basic conservative assumptions. There may have been a time when big business and cultural traditionalists were natural allies; mainstream conservatism is largely dependent on such an alliance. Is there such alliance today, or even shared interests? Are there any cultural issues where traditionalists can count on support from major industries? The answer is clearly no.

For the most part, big business is not concerned with issues like gay marriage, affirmative action, and abortion. In fact, major corporations frequently align with liberals on these issues. Even corporations that are widely despised by progressives often align themselves with progressive social causes. Walmart, for example, played an important role in killing or weakening religious freedom laws that would have protected businesses that discriminated against the LGBT community. The recent examples of major corporations that fought for more traditional values on questions such as homosexuality and contraception – such as Chick-fil-A and Hobby Lobby – are notable precisely because they are so rare. If conservatism is based on a presumed alliance between cultural traditionalists and corporate America, and corporate America actively opposes the traditionalists, what does that say about conservatism?

Conservatives who think Buckley-style conservatism is a legitimate substitute for Trumpism are mistaken. Conservative intellectuals, those who know who Peter Viereck was and subscribe to Modern Age, have failed to generate real, practical solutions to today’s social and economic problems. Keeping the memory of the founding generation of conservatives alive may be a noble undertaking, but it will do nothing to create or sustain a contemporary political movement that both addresses important issues and has a chance at winning.

A few exceptions aside, conservatives stopped generating new ideas long ago, instead focusing on marketing old ones. Unfortunately, the movement is now showing its age. The claim that Trump is killing mainstream American conservatism is mistaken. Mainstream conservatism was already dying.