I have written several postings related to Various topics including the military, Voting, the economy, religion and etc in America. A list of links have been provided at bottom of this article for your convenience. This article will, however address additional issues in these topics.
Table of Contents
-What is up with the $450,000 reparations for Illegal Immigrants?
-Why are northern cities paying criminals a salary not to break the law?
-Are Vaccine Mandates even Constitutional? What about protracted lockdowns?
-What is going on with our borders?
-What is going on with Afghanistan now?
What is up with the $450,000 reparations for Illegal Immigrants?
The Wall Street Journal broke the news that the Biden administration is looking to settle with the immigrant families who were separated from their children during the Trump administration’s “Zero Tolerance” policy, which it later abandoned and a judge halted, ordering the reunification of the families. As The Washington Post and others confirmed, the administration is reportedly considering paying as much as $450,000 per person.
From The Post’s story:The dollar amounts remain under discussion, but one person with knowledge of the negotiations said payouts could total $450,000 per person, with some families potentially receiving $1 million.The U.S. government took more than 3,000 children away from their parents along the Mexican border in May and June 2018, the peak of Trump’s Zero Tolerance prosecution effort. Department of Homeland Security officials say the total number taken while Trump was in office exceeds 5,500.In most cases, the children were separated from their parents by border agents and sent to government shelters, while their mothers and fathers were jailed to face prosecution for entering the country illegally.
Few recent political developments have been met with such a decidedly one-sided political response. Republicans quickly and almost universally denounced the idea, suggesting it amounted to huge cash payments to those who sought to illegally immigrate to the United States. They contrasted this with similar amounts paid to the families of American soldiers killed overseas. They suggested this would only encourage those who would seek to cross the border.
Former vice president Mike Pence offered a characteristic argument: “The Biden policy of giving illegal immigrants $450K each is totally unacceptable. The Biden Admin unleashed the worst Border Crisis in more than 30 years all because they dismantled policies that were working & sent a message south of the border that America’s borders are OPEN.”
Even Rep. Adam Kinzinger (R-Ill.), who has aligned with Democrats in their critiques of former president Donald Trump, suggested this was a very bad idea.
“One reason I don’t believe the Democrats realize how threatened democracy is: this is dumb, will definitely embolden Trumpism,” Kinzinger said. “One reason I don’t believe the Democrats realize how threatened democracy is: this is dumb, will def embolden Trumpism.”
There is no question that, on its surface, this is not something the Biden administration will love taking part in. Even from a raw political perspective, giving huge sums of money to noncitizens who might or might not have had legitimate asylum claims to enter the United States means it takes some ownership of an extremely divisive situation, when it doesn’t have to.
This was a Trump administration policy, after all, but the Biden administration will have paid the money out, under terms it agreed to. It leads to a logical question: Why not allow the process to play out and let judges decide any damages that such families are entitled to? That would at least lay this at the feet of the Trump administration and its widely derided, on an unusually bipartisan basis, family-separation policy.
The simple answer is that the administration views it as being the right thing to do, given the cruelty and inhumanity of the policy.
More practically speaking, experts on immigration and immigration litigation say the Biden administration is stuck in an unenviable position. They also say that the potential settlements, while perhaps politically fraught, make plenty of sense from a governmental and fiscal perspective.
Heidi Li Feldman of Georgetown University says the government could face much-larger payouts if the litigation were to move forward — not to mention the costliness of defending so many different cases (the Journal reported about 940 claims have been filed). And, crucially, it involves alleged emotional distress inflicted upon children who were separated from their parents for lengthy periods of time — the kinds of things that are difficult to put a dollar amount on.
“If it goes to trial and one case wins an enormous verdict, that gives other families motivation not to settle,” Feldman said. “If a private business were in this situation, it would be extremely bizarre for them not to consider settling.”
Jesse Bless, the director of litigation at the American Immigration Lawyers Association who has worked on cases involving separated children, said the U.S. government has a distinct interest in settling and not extensively airing this ugly chapter in its recent history — even if it was clearly the doing of the prior administration.
“When we just make it about, okay, children were taken from their parents … how do we put a price tag on that?” Bless said. “And is it in the best interest of the government to put that dark time behind it? I think that’s a little more nuanced than headlines saying ‘half a million dollars.’ ”
The GOP pushback on the payments is also often vastly oversimplified. For instance, it often involves saying $450,000 payments would be given to undocumented immigrants, without noting that many of those involved were seeking asylum and had claims that could be legitimate. Feldman said she is “confident that a significant majority of the cases involve asylum seekers.”
Another is that, even if you allow that most of these cases involve asylum seekers, it’s not just awarding nearly a half-million dollars willy-nilly to anyone trying to cross the border; it’s doing so for those who had their families separated. In more than 1,000 cases, they haven’t been able to be reunited even years later.
Which brings us to the GOP argument that this would incentivize other would-be border crossers. To the extent such payments would create such incentives, it would do so for those who might benefit from similar sets of circumstances. But given the zero-tolerance policy that resulted in the family separations ended in 2018 and isn’t currently in place, that incentive doesn’t exist.
“I understand they say illegal immigrants can get money if they cross the border,” Feldman said. “But that assumes a level of irrationality on behalf of asylum seekers that is strange. … Getting this settlement would be premised on having your children separated from you.”
Feldman argued that not only would border-crossers know that’s no longer on the table, but even if they thought it was, earning such an amount of money would necessarily involve being separated from your children — which is something no parent would undertake lightly.
At the same time, Feldman acknowledged the political realities in the Biden administration awarding such payouts.
“I’m not saying that it wouldn’t resonate with some members of the American electorate. And one would hope that the Democrats are prepared to make the case that settling these cases serves the country’s interests,” Feldman said. “Juries looking at the specifics of how these families were treated could easily award millions of dollars per family. Such trials would also remind the world of just how outrageously the U.S. treated asylum seekers under the zero-tolerance policy.”
Those reminders would certainly reflect more upon the Trump administration than the Biden administration, and the easier political call would seem to be letting the chips fall where they may. This, after all, was a policy which Americans overwhelmingly opposed toward the end — by a nearly 2-to-1 margin.
But re-litigating all of it would also reflect negatively on the U.S. government as a whole, regardless of who currently runs it, and it could wind up being significantly more expensive than even the floated settlement numbers suggest. The Biden administration seems to be moving toward making a tough call to avoid all that, damn the torpedoes.
Based on a review of the numbers and possible claims already filed, the overall payout could exceed $1 billion.
Biden Plan To Pay Illegal Immigrants
News that the Biden administration could pay illegal immigrants such a large sum of money for ‘trauma’ they endured while illegally crossing the United States border did not sit well with Republican lawmakers.
Minority House Leader Kevin McCarthy declared the policy to be “pure insanity.”
“The Biden administration is reportedly looking to pay $450,000 to illegal immigrants who knowingly broke the law,” McCarthy tweeted. “It’s a slap in the face to our law-abiding citizens who wake up, go to work, and pay their taxes.”
Arkansas Senator Tom Cotton likened the plan to that paying a burglar for breaking into your home.
“It’s unthinkable to pay a burglar who broke into your home for the ‘psychological trauma’ they endured during the crime,” he tweeted. “Yet the Biden admin wants to reward migrants who illegally entered our country with up to $450,000 each for just that reason.”
Cotton also referred to the plan as “insanity.”
Representative Steve Womack (R-AR) referred to the report as “the ULTIMATE insult to law-abiding citizens.”
“Lawyers for the families argue the children have suffered long-lasting trauma from the anxiety of being without their parents,” the Daily Mail reports.
Guess who’s to blame for that … the parents!
Sen. Tom Cotton (R-Ark.) called it “crazy but true” that the Biden administration wants to pay out $450,000 to separated illegal immigrants but will only pay family of dead servicemembers $100,000. In an interview with FOX News’ John Roberts on Thursday, Cotton asked what about reparations for families that have been harmed by drugs coming from the Southern Border such as opioids.
“It is crazy but true, the Biden administration is considering paying reparations to illegal aliens who violated our laws of $450,000,” Cotton said. “We only pay $100,000 to the family of American soldiers who lose their life in the line of duty. What about reparations for the families whose lives have been shattered because they had a son or daughter crippled by opioids shipped across our southern border? It is insane to pay reparations to illegal aliens.”
“The ACLU simply said the simple facts while also pointing out that Joe Biden doesn’t seem to be in command of his own administration,” Cotton added.
H.R. 40: Exploring the Path to Reparative Justice in America
Written Testimony of Dreisen Heath Submitted to the US House Committee on the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
On behalf of Human Rights Watch, I thank Chairman Nadler and Ranking Member Jordan of the US House Committee on the Judiciary and Chairman Cohen and Vice Chair Raskin of the Subcommittee on the Constitution, Civil Rights and Civil Liberties, for the opportunity to submit this statement for a hearing to address H.R. 40, the Commission to Study and Develop Reparation Proposals for African-Americans Act, and a pathway to exploring federal reparations for the legacy of slavery. My name is Dreisen Heath and I am a researcher and advocate on racial justice issues, with an expertise in reparative justice, within the United States Program at Human Rights Watch.
Human Rights Watch is a non-profit, independent organization that investigates allegations of human rights violations in more than 90 countries around the world, including in the United States, by interviewing victims and witnesses, gathering information from a variety of sources, and issuing detailed reports. Where human rights violations have been found, Human Rights Watch advocates for redress, accountability, and changes to laws, policies, and practices with authorities to better protect human rights, and mobilize public pressure for change. The US Program at Human Rights Watch works on human rights issues within the United States, and has a strong focus on identifying and addressing areas for racial justice reform in the United States.Written Testimony of Dreisen Heath for a Hearing on: “H.R. 40: Exploring the Path to Reparative Justice in America”Written Testimony of Dreisen Heath for a Hearing on: “H.R. 40: Exploring the Path to Reparative Justice in America”
What Is Reparation and Why Is It Necessary?
The full impact of creating laws and policies that forced hundreds of thousands of Africans to be enslaved in the United States, a gross human rights violation, has never been fully examined, accounted for, or assessed at the national level. This US policy reduced Black people to the status of property, subjecting them to horrific violence and unspeakable cruelty. For enslaved women and girls, the trauma of slavery included grotesque sexual violence and abuses, which reinforced white male supremacy and gender hierarchy. The trauma of this violence and cruelty has been passed down, in a variety of ways, through generations.
In addition to the mental and physical harms, enslavement also rendered severe economic damage, which hindered Black people’s ability to obtain and accumulate intergenerational wealth. As law professor Adrienne Davis describes in her essay, The Case for US Reparations to African Americans:
“Enslavement denied blacks the economic fruits of their two hundred years of backbreaking labor…Property rights of use, ownership, or management did not follow from their market participation in the labor force, but were systematically denied by the state…For the first 250 years of American economic history, the law excluded blacks from the market in a society in which market participation was emerging as vital to personal, political, and social well-being.”
Though enslaved Black people were declared free by the Emancipation Proclamation in 1863, many US cities and states thereafter raced to enforce white supremacy and racial segregation, passing repressive laws to limit Black people’s rights. Organized racial terror by the Ku Klux Klan, white paramilitary groups, and deputized white mobs aimed to maintain racial social order and corrode Black people’s progress towards equality. Incidents of mass racial violence, including race massacres, intensified during Reconstruction through the early 1900s. Moreover, according to a report by the Equal Justice Initiative (EJI), an estimated 4,300 racial terror lynchings took place from 1877 and 1950.
Jim Crow laws passed by local and state governments in the 20th century entrenched racial discrimination in the North and the South. Federal, state, and local policy decisions in the 20th and 21st centuries, such as redlining and urban renewal, further contributed to structural racism in infrastructure and the creation of present day economic, education, employment, and health inequalities, as well as housing segregation. They also contributed to the creation of discriminatory and abusive policing and criminal legal systems that preserve unequal power structures and that still exist today. The disproportionate toll the Covid-19 pandemic has taken on Black people in the US, among other realizations, is a reminder that at the center of social and economic crisis lies anti-Black structural racism.
The failure to account for the historic racial and gendered injustices of slavery and its legacy has compounded the harm and fueled the persistence of racial inequality today. Enduring racist and classist structures remain in place and accumulated racial discrimination has gone unaddressed. Despite a shift in racial attitudes, civil rights era legislation from the 1960s did not adequately address the core of systemic racism and resulting racial equity gaps. A holistic inquiry into these injustices and the ways subsequent policy has created and reinforced structures and systems that have prevented Black people from advancing is urgently needed, as is a plan to provide reparation and healing for these harms. If this committee, and then Congress, were to pass H.R. 40 it would be the first meaningful step toward this reparation, which is essential if we are to seriously address racial inequality in the United States.
The Right to Remedy and Reparation Under International Human Rights Law
The right to remedy and reparation is a longstanding legal standard applicable to the United States. Under international human rights law, governments have an obligation to provide effective remedies for violations of human rights; and victims, people who individually or collectively suffered harm, should receive full and effective reparations that are proportional to the gravity of the violation and the cumulative harm suffered.
The United States is a party to the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Both core international human rights treaties guarantee the right to an effective remedy for human rights violations, including acts of racial discrimination. This right requires that governments ensure access to justice, truthful information about the violation, and reparation.
Reparation, as defined by international human rights standards, includes the following forms:
- Restitution: measures to restore the situation that existed before the wrongful act(s) were committed, such as restoration of liberty, employment and return to the place of residence and return of property.
- Compensation: monetary payment for “economically assessable damage” arising from the violation, including physical or mental harm, material losses, and lost opportunities.
- Rehabilitation: provision of “medical and psychological care as well as legal and social services.”
- Satisfaction: includes a range of measures involving truth-telling, statements aimed at ending ongoing abuses, commemorations or tributes to the victims, preservation of historical memory, and expressions of regret or formal apology for wrongdoing.
- Guarantees of non-repetition: includes institutional and legal reform as well as reforms to government practices to end the abuse.
The Urgency of Now, Slavery’s Present-Day Impacts
Reparations should be based not just on past harms but on contemporary ones as well. Today, the effects of slavery can be seen throughout US society, as part of its law, culture, and institutions. An H.R. 40 commission should develop concrete proposals that seek to eliminate the racial wealth gap and compensate for material and moral losses. Additionally, proposals need to rectify ongoing harms resulting from violations by the government to the human right to freedom from discrimination, including with respect to housing, health, education, life, security of person, water and sanitation, and a healthy environment.
Racial Wealth Gap
The US economy still creates wealth from forced labor of enslaved Black people, including slave-built infrastructure such as railways, physical roads, government buildings, and ports. Despite such critical contributions to profit-generating aspects of society, the 2019 Survey of Consumer Finances (SCF) revealed that the median wealth for Black families is $24,100 compared to that of $188,200 for white families. Moreover, about 19 percent of Black people live under the poverty line, compared with about 7 percent of white people, respectively.
As the SCF survey notes, “Among other factors, inter-generational transfers, homeownership opportunities, access to tax-sheltered savings plans, and individuals’ savings and investment decisions contribute to wealth accumulation and families’ financial security.” Further, Black individuals also continue to face systemic obstacles to accessing capital and to be disproportionately targeted by abusive lending practices that can lead to eviction or loss of employment. Economic reparation measures to address this are essential to eliminating the racial wealth gap.
Reparations designed to address land dispossession should also be a priority of the H.R. 40 commission. Following the issuance of Special Field Order No. 15 by Gen. William Tecumseh
Sherman on January 16, 1865, President Abraham Lincoln established “The Freedman’s Bureau.” This body authorized legal titles for 40 acres of land to freedmen and “white Southern Unionists.” While approximately 40,000 Black people received land settlements, when President Andrew Jackson took office, he took back most of the land and transferred it to the Confederate planters who had previously owned it.
On May 20, 1862, President Lincoln signed the Homestead Act, which by 1934 when the Act ended, had granted more than 270 million acres of land in the western part of the country to people, 90 percent of whom were white, virtually for free. Keri Leigh Merritt, historian and independent scholar, notes:
With the advent of emancipation, therefore, blacks became the only race in the US ever to start out, as an entire people, with close to zero capital. Having nothing else upon which to build or generate wealth, the majority of freedmen had little real chance of breaking the cycles of poverty created by slavery, and perpetuated by federal policy.
Despite this, following emancipation, some Black people were able to acquire land. At the start of the 20th century, formerly enslaved Black people and their descendants managed to own 14 million acres. However, through agencies and programs created by the federal New Deal and the US Department of Agriculture, white people acquired much of this land, often through coercive, though legally sanctioned, and occasionally violent means. Some have called this legalized land theft. Discriminatory private practices compounded those injuries, impacting Black families over time. Today Black agricultural landowners have been dispossessed of at least 90 percent of their land. Currently, white people own 98 percent of all rural land.
Homeownership is also crucial to wealth building in the US, and where someone lives is tied to many other structural inequities. President Franklin D. Roosevelt’s New Deal, a series of federal policies and programs aimed at rehabilitating the economy at the end of the Great Depression from 1933 to 1939, was championed as a defining moment in US history. Some Black people benefitted from such policies, but some of those policies also helped cement racial segregation.
As a part of the New Deal, the Home Owners’ Loan Corporation (HOLC) was formed to help people refinance home mortgages and expand buying opportunities. The HOLC helped thousands of people buy or stay in their homes but it engaged in the discriminatory practice of “redlining,” whereby it characterized certain neighborhoods in at least 239 cities high or low risk for lenders depending upon the desirability of living there. Neighborhoods the HOLC designated green or “A” on maps were considering low risk for lenders, while those designated red or “D” were considered high risk or “hazardous.” Neighborhoods that were predominately Black, but also some where Catholics, Jewish people, or other immigrant communities lived, were considered high risk or undesirable. This made it nearly impossible for many Black people to access mortgage loans and helped to further exacerbate the wealth gap.
Redlining took place over 50 years ago and was outlawed by the Fair Chance at Housing Act of 1968, but its effects are still felt today. In 2020, Redfin concluded that Black homeowners are five times more likely to own in a formerly redlined neighborhood than in a “greenlined” one. The H.R. 40 commission should investigate and provide appropriate redress not just for harms created by federal housing policies and regulations in the past, but also examine ways current housing or lending policy could reverse segregating trends.
In addition, an H.R. 40 commission should examine the policies and practices of the Federal Housing Administration (FHA). Between 1934 and 1962, 98 percent of the FHA loans administered went to white people, effectively excluding Black families from homebuying.
The FHA’s “Underwriting Manual” guided their work and contained racial restrictive covenants. Historian Richard Rothstein described the FHA’s explicit use of segregationist practices in his book, The Color of Law:
The FHA favored mortgages in areas where boulevards or highways served to separate African American families from whites, stating “natural or artificially established barriers will prove effective in protecting a neighborhood and the locations within it from adverse influences,…including prevention of the infiltration of…lower class occupancy, and inharmonious racial groups.”
Another set of federal policies, “urban renewal,” intensified racial segregation. Urban renewal aimed to rehabilitate areas considered blighted by such methods as condemning property and paying occupants to move or using eminent domain, and then redeveloping the land. The author James Baldwin famously referred to urban renewal as “Negro Removal.” The scope of harm has not been fully investigated or rectified by the federal government.
Federally financed highway construction projects, which sought to “redeem” urban areas, disproportionately low-income and Black, were often part of the urban renewal projects. The creation of highway systems had the effect of destroying Black neighborhoods, but also dividing neighborhoods along racial lines, between Black and white sections of major cities. Highway systems have also contributed to air quality deterioration.
In 2017, the Black homeownership rate was 41.8 percent, the lowest of all racial and ethnic groups, according to the Urban Institute, with white homeownership rates being 71.9 percent. This 30.1 percent gap between white and Black home ownership rates is the widest it has been in 50 years and is wider than it was when race-based discrimination against home buyers was legal. While the overall mortgage denial rate is 6.15 percent, Black homebuyers are denied mortgages at two times that rate.
Access to Health Care
The denial of access to health care is a living vestige of slavery and Jim Crow segregation. The current life expectancy gap in the US between Black people and white people is 3.6 years. Black people remain significantly more likely to die of Covid-19, HIV, cancer, asthma, stroke, heart disease, diabetes, obesity and maternal mortality than white people. Some communities of color lack access to safe and affordable water and sanitation, which some researchers have found can be tied to “discriminatory practices embedded in some past water infrastructure development initiatives.” Black people live in poorer neighborhoods, attend lower-quality schools, receive health care at lower-quality hospitals, and are less likely to have health insurance. These outcomes are driven in part by government policies, including segregationist policies and a historic underinvestment in health in Black communities, as well as limited access to healthy foods and quality health care, including maternal health care.
Black women in the US face multiple forms of discrimination and oppression that result in alarming racial disparities in health and poor health outcomes. During enslavement in the South, nearly 50 percent of infants born on slave plantations were stillborn or dead within the first year of life. When assessing the Black-white infant mortality gap today, Black infants are more than twice as likely to die as white infants. Low-income women and women of color face higher cervical cancer mortality rates due to lack of consistent healthcare coverage and access to services and information to prevent and treat the disease, as well as bias and discrimination in the health system. Black women die at disproportionately high rates of cervical cancer, a highly preventable and treatable disease from which no one should die .
Systemic racism leaves Black people with symptoms of post-traumatic stress disorder, harm to their immune systems, and premature aging.
And, even dying costs more for Black people. Under Medicare, end-of-life care is $7,100 more expensive for Black individuals compared to their white counterparts.
Increasing racial disparities in health will lead to more suffering and death, as well as massive loss of wealth given the varying costs of health care. The H.R. 40 commission should examine these life-threatening consequences and create health care-specific reparation proposals.
Stark disparities in outcomes between Black and Indigenous women and white women lie at the heart of the maternal and perinatal health crisis in the United States. The US cannot address its increasing rates of premature birth nationally and unacceptably high rates of maternal mortality without digging into systemic racism and injustices at its core, including through a reparations process. We strongly recommend the commission center reproductive justice for Black women in its work.
Access to Education
During the international slave trade, Black people were denied virtually all forms of education. Before the Civil War every Southern state enacted laws that prohibited Black people from seeking education.
According to the Literacy Center, “Low literacy becomes intergenerational.” A 2015 report by the National Assessment of Educational Progress found that only 17 percent of Black 12th graders were proficient at reading, compared to nearly 50 percent of white 12th graders.
When neighborhoods are segregated by race and class, segregation affects the quality of education and location of schools, lending an imbalance of funding and resources to schools in areas that are less wealthy. School districts that serve higher populations of Black and brown students receive $23 billion less in funding compared to mostly white school districts, even though they serve the same number of children.
Education programming such as sexual health programming lack adequate funding and critical resources, for example in schools in Alabama. Limitations on property taxes in Alabama are rooted in discrimination and inequality, hindering the ability of many rural school districts to raise revenue for their schools, particularly for programs that are not required, such as sexual health education. Alabama’s 1901 constitution placed a cap on state and local property tax rates, which have been used to maintain white supremacy and systems of inequality in the state. As an Alabama federal district court stated in 2004, it is “a vestige of discrimination inasmuch as the [state] constitutional provisions governing the taxation of property are traceable to, rooted in, and have their antecedents in an original segregative, discriminatory policy.”
When pursuing higher education, Black students borrow more money for education loans, as they have lower levels of family income and wealth (as described above).
There are significant racial and class disparities in school discipline rates, including detention and suspension. Black students are suspended from school at a rate 4 times greater than white students. Dropout rates are also higher and vary by race and household income.
H.R. 40’s mandate should explore reparations to help address educational inequities.
Criminal Legal System
Although the US Constitution’s 13th amendment technically abolished the institution of slavery, it provided an exception that allowed for the continuation of slavery “as punishment for a crime.” This exception has allowed people incarcerated, disproportionately Black and brown, to be exploited through forced labor for decades.
According to the Sentencing Project, 1 in every 10 Black men in his thirties is in prison or jail, any given day. The imprisonment rate for Black women is nearly twice that of white women, and Black girls are the fastest growing portion of the juvenile justice system.
Law enforcement in the United States disproportionately targets Black, Indigenous, and Latinx communities, resulting in high levels of arrest and conviction in those communities and frequent interactions that can result in violence. Other laws, policies and practices keep those with criminal records from accessing jobs, housing, education, public assistance, and the right to vote.
The enforcement of drug laws produces extraordinarily high and disproportionate rates of incarceration for Black people, particularly Black men. Human Rights Watch’s research shows that while white people use drugs at the same rates as Black people, the latter are two-and-a-half times as likely to be arrested for drug possession for personal use.
Reparative justice is desperately needed to address the long-term impacts of structural racism in the criminal justice system. This includes interrogating carceral policies, establishing alternatives to incarceration (such as more investments in community-based programming and social services) and accounting for the separation of Black families.
Abusive and Discriminatory Policing
Historically and presently, policing in the United States has served to maintain the country’s racial hierarchy. These racist origins and continued police involvement in racial oppression during Jim Crow and afterward, including through expanded surveillance, paved the way for systemic racial profiling in Black neighborhoods.
Human Rights Watch and others’ research shows that police violence is inextricably linked to deep and persisting racial inequities and economic class divisions, perpetuated and exacerbated by laws and policies that prioritize policing and criminalization as the primary state response to a range of societal problems.
Though police killings draw more public visibility and reaction, police departments across the country deploy abusive and discriminatory policing tactics on an everyday basis targeting Black communities. This aggressive deployment of police has accompanied disinvestment in vital services and support for these communities that might more effectively reduce crime.
An H.R. 40 commission should examine the historic connection between slavery and current abusive policing systems and consider ways to redress and account for past and ongoing harm.
Tulsa, Oklahoma Is a Microcosm of the US
The 1921 Tulsa Race Massacre, one of the worst incidents of racial violence in the US, occurred in a broader context of racist violence and oppression stemming from slavery, which continues to impact Black people today. In hours, decades of Black prosperity and millions of dollars in hard-earned wealth were wiped out by a violent white mob. The organized destruction left hundreds of people dead, most of them Black, and more than 1,200 Black-owned houses, scores of businesses, a school, a hospital, a public library, and a dozen black churches burned to ashes in Tulsa’s Greenwood neighborhood, then known as “Black Wall Street.”
No one was ever held accountable and no reparations have been paid to Black survivors of the massacre and descendants of victims.
In a May 2020 report entitled The Case for Reparations in Tulsa, Oklahoma: A Human Rights Argument, Human Rights Watch detailed the massacre, its aftermath, attempts to rebuild, and subsequent discriminatory policies (i.e., redlining, urban renewal, highway construction) that prevented Greenwood and the broader North Tulsa community from thriving. These policies, and the government’s response to the massacre, have contributed to the deep racial disparities—rooted in the US history of slavery and ongoing structural racism—in Tulsa today. Human Rights Watch conducted extensive research by analyzing state-issued reports, numerous books on the massacre and its aftermath, news articles, law review articles, academic research papers, court records, city planning documents, and conducting interviews with affected community members, including descendants of the massacre’s victims and survivors.
The report calls on the Tulsa and Oklahoma governments to provide immediate reparations, including direct payments to the few surviving massacre victims, and the descendants of those killed and those who survived; lift legal barriers to civil legal claims related to the massacre; recover and identify remains that may be in mass graves; and establish a comprehensive reparations plan in close consultation with affected community members.
What happened in Tulsa is not an anomaly. The people killed in the 1921 Tulsa Race Massacre were only some of the thousands of people killed in racial terror lynchings that took place in the US between the end of Reconstruction in 1877 and 1950. According to a report by the Equal Justice Initiative (EJI), an estimated 4,300 racial terror lynchings took place during that time, including those that occurred during the 1921 Tulsa Race Massacre. In the year 1919 alone, more than two dozen different incidents of racially motivated violence took place. The US government has never adequately accounted for these wrongs or the subsequent 20th and 21st century policy decisions (described above) but it has an opportunity to begin to do so through the establishment of an H.R. 40 commission.
The Importance of Government Documentation & Investigative Commissions
Investigative commissions have been used by national and state governments in the US many times before to establish a truthful record of events and circumstances, forming the basis for reparative recommendations.
Some examples include:
- The Oklahoma Commission to Study the Tulsa “Race Riot” of 1921 (1997)
- The Commission on Wartime Relocation and Internment of Civilians (1980)
- The President’s Commission on the Holocaust (1978)
- The Indian Claims Commission (1946)
- The Compensated Emancipation Act Commission (1862)
Reparations Aren’t Ordinary Public Policy
Reparations are not ordinary public policy and should not replace it. Peter Dixon, a research scientist in the Conflict Resolution and Coexistence Program at Brandeis University, argues in line with international human rights standards that governments should be intentionally separating the processes:
Reparations measures are intended to be an act of justice that not only addresses harm but also recognizes that recipients’ rights were violated. Along with several key differences, this separates reparation from social policies like welfare and from international humanitarian assistance and development aid. Relief, assistance and aid are clearly important in contexts where poverty, inequality and violence are linked…but it’s problematic when the two are indistinguishable or when relief replaces reparation.
The US government has never issued its own comprehensive study on the impacts of slavery and subsequent racist federal policies and institutions. This documentation, through the work of an H.R. 40 commission, is a necessary part of the public acknowledgment of the government’s violations and how it may seek to rectify them. Though the US House in 2008 and the US Senate in 2009 passed resolutions apologizing for slavery, they were never signed into law.
The failure to provide full acknowledgment and repair, at the federal level, has compounded past and present harms, worsening injuries in the Black community. Congress should not remain stagnant on the issue of repair while states, city councils, and public and private institutions pass their own reparations measures. Reparative justice demands the “fierce urgency of now.”
Why don’t we pay them in Venezuelan Currency the Bolivar?
If true justice and equality are ever to be achieved in the United States, the country must finally take seriously what it owes black Americans.
It feels different this time.
Black Americans protesting the violation of their rights are a defining tradition of this country. In the last century, there have been hundreds of uprisings in black communities in response to white violence. Some have produced substantive change. After the assassination of the Rev. Dr. Martin Luther King Jr. in 1968, uprisings in more than 100 cities broke the final congressional deadlock over whether it should be illegal to deny people housing simply because they descended from people who had been enslaved. The Fair Housing Act, which prohibits housing discrimination on the basis of race, gender and religion, among other categories, seemed destined to die in Congress as white Southerners were joined by many of their Northern counterparts who knew housing segregation was central to how Jim Crow was accomplished in the North. But just seven days after King’s death, President Lyndon B. Johnson signed the act into law from the smoldering capital, which was still under protection from the National Guard.
Most of the time these uprisings have produced hand-wringing and consternation but few necessary structural changes. After black uprisings swept the nation in the mid-1960s, Johnson created the Kerner Commission to examine their causes, and the report it issued in 1968 recommended a national effort to dismantle segregation and structural racism across American institutions. It was shelved by the president, like so many similar reports, and instead white Americans voted in a “law and order” president, Richard Nixon. The following decades brought increased police militarization, law-enforcement spending and mass incarceration of black Americans.
The changes we’re seeing today in some ways seem shockingly swift, and in other ways rage-inducingly slow. After years of black-led activism, protest and organizing, the weeks of protests since George Floyd’s killing have moved lawmakers to ban chokeholds by police officers, consider stripping law enforcement of the qualified immunity that has made it almost impossible to hold responsible officers who kill, and discuss moving significant parts of ballooning police budgets into funding for social services. Black Lives Matter, the group founded in 2013 by three black women, Patrisse Khan-Cullors, Alicia Garza and Opal Tometi, after the acquittal of Trayvon Martin’s killer, saw its support among American voters rise almost as much in the two weeks after Floyd’s killing than in the last two years. According to polling by Civiqs, more than 50 percent of registered voters now say they support the movement.
The cascading effect of these protests has been something to behold. The commissioner of the N.F.L., which blackballed Colin Kaepernick for daring to respectfully protest police brutality, announced that the N.F.L. had, in fact, been wrong and that black lives actually do matter. (Kaepernick, on the other hand, still has no job.) HBO Max announced that it would temporarily pull from its roster the Lost Cause propaganda film “Gone With the Wind” — which in classically American fashion holds the spot as the highest-grossing feature film of all time. NASCAR came to the sudden realization that its decades-long permissiveness toward fans’ waving the battle flag of a traitorous would-be nation that fought to preserve the right to traffic black people was, in fact, contrary to its “commitment to providing a welcoming and inclusive environment for all fans, our competitors and our industry.” Bubba Wallace, the only full-time black driver at the sport’s top level, who had called on NASCAR to make the move, drove victory laps in an all-black stock car emblazoned with the words “#BLACKLIVESMATTER.”
Dr. Ernest C. Withers/Withers Family Trust
Multiracial groups of Americans have defaced or snatched down monuments to enslavers and bigots from Virginia to Philadelphia to Minneapolis and New Mexico, leading local and state politicians to locate the moral courage to realize that they indeed did have the power to purge from public spaces icons to white supremacy. Even the University of Alabama, the place where Gov. George Wallace quite literally stood in the schoolhouse door to try to block the court-ordered admission of two black students, a place whose Grecian-columned campus and still largely segregated sororities pose the living embodiment of Dixie, is removing three plaques honoring Confederate soldiers and will study whether to rename buildings holding the monikers of enslavers and white supremacists after a student-led campaign garnered more than 17,000 signatures.
Unlike so many times in the past, in which black people mostly marched and protested alone to demand recognition of their full humanity and citizenship, a multiracial and multigenerational protest army has taken to the streets over the last month. They’ve spread across all 50 states in places big and small, including historically all-white towns like Vidor, Texas, where as recently as 1993 a federal judge had to order its public housing integrated. Shortly after, white supremacists ran out of town the handful of black people who had moved in. That Vidor, Texas, which remains 91 percent white and 0.5 percent black, held a Black Lives Matter rally in early June. In countries as disparate as England, Brazil, Kenya and Turkey, crowds pumped fists and carried signs with George Floyd’s name.
And this month, a Monmouth University poll showed that 76 percent of Americans, and 71 percent of white Americans, believe that racial and ethnic discrimination is a “big problem” in the United States. Just a few years ago, little more than half of white Americans believed that. The numbers in the Monmouth poll were so high that it left some political scientists questioning the poll’s quality.
“This number is crazy,” Hakeem Jefferson, a Stanford University political scientist, told me. “When I saw it, I thought, ‘This is a polling error.’ So I did what good social scientists do. I opened the methodological report, worried that they had done a weird sampling. But this is high-quality data.”
It is hard in the midst of something momentous to pinpoint exactly what has caused it. What we’re seeing is most likely a result of unrelenting organizing by the Black Lives Matter movement. It’s the pandemic, which virtually overnight left staggering numbers of Americans without enough money to buy food, pay rent and sustain their businesses. For many white Americans who may have once, consciously or unconsciously, looked down upon this nation’s heavily black and brown low-wage service workers, Covid-19 made them realize that it was the delivery driver and grocery clerk and meatpacker who made it possible for them to remain safely sequestered in their homes — and these workers were dying for it. Black Americans, in particular, have borne a disproportionate number of deaths from both Covid-19 and law enforcement, and many nonblack protesters have reasoned that black people should not have to risk their lives alone in taking to the streets demanding that the state not execute its citizens without consequence. And as they did, white Americans both in the streets and through the screens of their phones and televisions got a taste of the wanton police violence that black Americans regularly face. They saw the police beating up white women, pushing down an elderly white man and throwing tear gas and shooting rubber bullets at demonstrators exercising their democratic right to peacefully protest.
With so many Americans working from home or not working at all, they have had the time to show up to protests every day. These protests not only give Americans who are not black a moral reason to leave their homes after weeks of social isolation; they also allow protesters to vent anger at the incompetence of the man in the White House, himself a product of this nation’s inability to escape its death pact with white supremacy, who they sense is imperiling this terribly flawed but miraculous country.
It has been more than 150 years since the white planter class last called up the slave patrols and deputized every white citizen to stop, question and subdue any black person who came across their paths in order to control and surveil a population who refused to submit to their enslavement. It has been 150 years since white Americans could enforce slave laws that said white people acting in the interest of the planter class would not be punished for killing a black person, even for the most minor alleged offense. Those laws morphed into the black codes, passed by white Southern politicians at the end of the Civil War to criminalize behaviors like not having a job. Those black codes were struck down, then altered and over the course of decades eventually transmuted into stop-and-frisk, broken windows and, of course, qualified immunity. The names of the mechanisms of social control have changed, but the presumption that white patrollers have the legal right to kill black people deemed to have committed minor infractions or to have breached the social order has remained.
In a country erected on the explicitly codified conviction that black lives mattered less, graveyards across this land hold the bodies of black Americans, men, women and children, legally killed by the institutional descendants of those slave patrols for alleged transgressions like walking from the store with Skittles, playing with a toy gun in the park, sleeping in their homes and selling untaxed cigarettes. We collectively know only a small number of their names: Michael Brown, Tamir Rice, Trayvon Martin, Kendra James, Breonna Taylor, Rekia Boyd, Eric Garner, Aiyana Stanley-Jones and Tanisha Anderson are just a few.
And because of what is happening now, George Floyd’s name will forever stand out since enough Americans have decided that his death mattered.
What has spawned this extraordinary reckoning, the fire this time, was our collective witness of what must be described without hyperbole as a modern-day lynching. In his 1933 book, “The Tragedy of Lynching,” the sociologist Arthur F. Raper estimated that, based on his study of 100 lynchings, white police officers participated in at least half of all lynchings and that in 90 percent of others law-enforcement officers “either condone or wink at the mob action.” The nonchalant look on Officer Derek Chauvin’s face — as, hand in pocket, for 8 minutes 46 seconds, he pressed his knee against the neck of a facedown black man begging for his life — reminds me of every callous white face captured in the grisly photos taken in the 1900s to mark the gleeful spectacle of the public killings of black men and women.
It devastates black people that all the other black deaths before George Floyd did not get us here. It devastates black people to recall all the excuses that have come before. That big black boy, Michael Brown, must have charged the weapon-carrying officer. Eric Garner should have stopped struggling. Breonna Taylor’s boyfriend had a weapon in her home and shouldn’t have shot at the people who, without a knock or an announcement, burst through her door. We’re not sure what Ahmaud Arbery was doing in that predominantly white neighborhood. Rayshard Brooks, who in the midst of nationwide protests against police violence was shot in the back twice by a police officer, just shouldn’t have resisted.
It should devastate us all that in 2020 it took a cellphone video broadcast across the globe of a black man dying from the oldest and most terrifying tool in the white-supremacist arsenal to make a vast majority of white Americans decide that, well, this might be enough.
We, now, have finally arrived at the point of this essay. Because when it comes to truly explaining racial injustice in this country, the table should never be set quickly: There is too much to know, and yet we aggressively choose not to know it.
No one can predict whether this uprising will lead to lasting change. History does not bode well. But there does seem to be a widespread acceptance of the most obvious action we could take toward equality in a nation built on the espoused ideals of inalienable, universal rights: pass reforms and laws that ensure that black people cannot be killed by armed agents of the state without consequence.
But on its own, this cannot bring justice to America. If we are truly at the precipice of a transformative moment, the most tragic of outcomes would be that the demand be too timid and the resolution too small. If we are indeed serious about creating a more just society, we must go much further than that. We must get to the root of it.
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Fifty years since the bloody and brutally repressed protests and freedom struggles of black Americans brought about the end of legal discrimination in this country, so much of what makes black lives hard, what takes black lives earlier, what causes black Americans to be vulnerable to the type of surveillance and policing that killed Breonna Taylor and George Floyd, what steals opportunities, is the lack of wealth that has been a defining feature of black life since the end of slavery.
Wealth, not income, is the means to security in America. Wealth — assets and investments minus debt — is what enables you to buy homes in safer neighborhoods with better amenities and better-funded schools. It is what enables you to send your children to college without saddling them with tens of thousands of dollars of debt and what provides you money to put a down payment on a house. It is what prevents family emergencies or unexpected job losses from turning into catastrophes that leave you homeless and destitute. It is what ensures what every parent wants — that your children will have fewer struggles than you did. Wealth is security and peace of mind. It’s not incidental that wealthier people are healthier and live longer. Wealth is, as a recent Yale study states, “the most consequential index of economic well-being” for most Americans. But wealth is not something people create solely by themselves; it is accumulated across generations.
While unchecked discrimination still plays a significant role in shunting opportunities for black Americans, it is white Americans’ centuries-long economic head start that most effectively maintains racial caste today. As soon as laws began to ban racial discrimination against black Americans, white Americans created so-called race-neutral means of maintaining political and economic power. For example, soon after the 15th Amendment granted black men the right to vote, white politicians in many states, understanding that recently freed black Americans were impoverished, implemented poll taxes. In other words, white Americans have long known that in a country where black people have been kept disproportionately poor and prevented from building wealth, rules and policies involving money can be nearly as effective for maintaining the color line as legal segregation. You do not have to have laws forcing segregated housing and schools if white Americans, using their generational wealth and higher incomes, can simply buy their way into expensive enclaves with exclusive public schools that are out of the price range of most black Americans.
It has worked with impressive efficiency. Today black Americans remain the most segregated group of people in America and are five times as likely to live in high-poverty neighborhoods as white Americans. Not even high earnings inoculate black people against racialized disadvantage. Black families earning $75,000 or more a year live in poorer neighborhoods than white Americans earning less than $40,000 a year, research by John Logan, a Brown University sociologist, shows. According to another study, by the Stanford sociologist Sean Reardon and his colleagues, the average black family earning $100,000 a year lives in a neighborhood with an average annual income of $54,000. Black Americans with high incomes are still black: They face discrimination across American life. But it is because their families have not been able to build wealth that they are often unable to come up with a down payment to buy in more affluent neighborhoods, while white Americans with lower incomes often use familial wealth to do so.
The difference between the lived experience of black Americans and white Americans when it comes to wealth — along the entire spectrum of income from the poorest to the richest — can be described as nothing other than a chasm. According to research published this year by scholars at Duke University and Northwestern University that doesn’t even take into account the yet-unknown financial wreckage of Covid-19, the average black family with children holds just one cent of wealth for every dollar that the average white family with children holds.
As President Johnson, architect of the Great Society, explained in a 1965 speech titled “To Fulfill These Rights”: “Negro poverty is not white poverty. … These differences are not racial differences. They are solely and simply the consequence of ancient brutality, past injustice and present prejudice. They are anguishing to observe. For the Negro they are a constant reminder of oppression. For the white they are a constant reminder of guilt. But they must be faced, and they must be dealt with, and they must be overcome; if we are ever to reach the time when the only difference between Negroes and whites is the color of their skin.”
We sometimes forget, and perhaps it is an intentional forgetting, that the racism we are fighting today was originally conjured to justify working unfree black people, often until death, to generate extravagant riches for European colonial powers, the white planter class and all the ancillary white people from Midwestern farmers to bankers to sailors to textile workers, who earned their living and built their wealth from free black labor and the products that labor produced. The prosperity of this country is inextricably linked with the forced labor of the ancestors of 40 million black Americans for whom these marches are now occurring, just as it is linked to the stolen land of the country’s indigenous people. Though our high school history books seldom make this plain: Slavery and the 100-year period of racial apartheid and racial terrorism known as Jim Crow were, above all else, systems of economic exploitation. To borrow from Ta-Nehisi Coates’s phrasing, racism is the child of economic profiteering, not the father.
Numerous legal efforts to strip black people of their humanity existed to justify the extraction of profit. Beginning in the 1660s, white officials ensured that all children born to enslaved women would also be enslaved and belong not to their mothers but to the white men who owned their mothers. They passed laws dictating that the child’s status would follow that of the mother not the father, upending European norms and guaranteeing that the children of enslaved women who were sexually assaulted by white men would be born enslaved and not free. It meant that profit for white people could be made from black women’s wombs. Laws determining that enslaved people, just like animals, had no recognized kinship ties ensured that human beings could be bought and sold at will to pay debts, buy more acres or save storied universities like Georgetown from closing. Laws barred enslaved people from making wills or owning property, distinguishing black people in America from every other group on these shores and assuring that everything of value black people managed to accrue would add to the wealth of those who enslaved them. At the time of the Civil War, the value of the enslaved human beings held as property added up to more than all of this nations’ railroads and factories combined. And yet, enslaved people saw not a dime of this wealth. They owned nothing and were owed nothing from all that had been built from their toil.
Slavery’s demise provided this nation the chance for redemption. Out of the ashes of sectarian strife, we could have birthed a new country, one that recognized the humanity and natural rights of those who helped forge this country, one that attempted to atone and provide redress for the unspeakable atrocities committed against black people in the name of profit. We could have finally, 100 years after the Revolution, embraced its founding ideals.
And, oh so briefly, during the period known as Reconstruction, we moved toward that goal. The historian Eric Foner refers to these 12 years after the Civil War as this nation’s second founding, because it is here that America began to redeem the grave sin of slavery. Congress passed amendments abolishing human bondage, enshrining equal protection before the law in the Constitution and guaranteeing black men the right to vote. This nation witnessed its first period of biracial governance as the formerly enslaved were elected to public offices at all levels of government. For a fleeting moment, a few white men listened to the pleas of black people who had fought for the Union and helped deliver its victory. Land in this country has always meant wealth and, more important, independence. Millions of black people, liberated with not a cent to their name, desperately wanted property so they could work, support themselves and be left alone. Black people implored federal officials to take the land confiscated from enslavers who had taken up arms against their own country and grant it to those who worked it for generations. They were asking to, as the historian Robin D.G. Kelley puts it, “inherit the earth they had turned into wealth for idle white people.”
In January 1865, Gen. William Tecumseh Sherman issued Special Field Order 15, providing for the distribution of hundreds of thousands of acres of former Confederate land issued in 40-acre tracts to newly freed people along coastal South Carolina and Georgia. But just four months later, in April, Lincoln was assassinated. Andrew Johnson, the racist, pro-Southern vice president who took over, immediately reneged upon this promise of 40 acres, overturning Sherman’s order. Most white Americans felt that black Americans should be grateful for their freedom, that the bloody Civil War had absolved any debt. The government confiscated the land from the few formerly enslaved families who had started to eke out a life away from the white whip and gave it back to the traitors. And with that, the only real effort this nation ever made to compensate black Americans for 250 years of chattel slavery ended.
Freed people, during and after slavery, tried again and again to compel the government to provide restitution for slavery, to provide at the very least a pension for those who spent their entire lives working for no pay. They filed lawsuits. They organized to lobby politicians. And every effort failed. To this day, the only Americans who have ever received government restitution for slavery were white enslavers in Washington, D.C., who were compensated for their loss of human property.
The way we are taught this in school, Lincoln “freed the slaves,” and then the nearly four million people who the day before had been treated as property suddenly enjoyed the privileges of being Americans like everyone else. We are not prodded to contemplate what it means to achieve freedom without a home to live in, without food to eat, a bed to sleep on, clothes for your children or money to buy any of it. Narratives collected of formerly enslaved people during the Federal Writers’ Project of the 1930s reveal the horrors of massive starvation, of “liberated” black people seeking shelter in burned-out buildings and scrounging for food in decaying fields before eventually succumbing to the heartbreak of returning to bend over in the fields of their former enslavers, as sharecroppers, just so they would not die. “With the advent of emancipation,” writes the historian Keri Leigh Merritt, “blacks became the only race in the U.S. ever to start out, as an entire people, with close to zero capital.”
In 1881, Frederick Douglass, surveying the utter privation in which the federal government left the formerly enslaved, wrote: “When the Hebrews were emancipated, they were told to take spoil from the Egyptians. When the serfs of Russia were emancipated, they were given three acres of ground upon which they could live and make a living. But not so when our slaves were emancipated. They were sent away empty-handed, without money, without friends and without a foot of land on which they could live and make a living. Old and young, sick and well, were turned loose to the naked sky, naked to their enemies.”
Just after the federal government decided that black people were undeserving of restitution, it began bestowing millions of acres in the West to white Americans under the Homestead Act, while also enticing white foreigners to immigrate with the offer of free land. From 1868 to 1934, the federal government gave away 246 million acres in 160-acre tracts, nearly 10 percent of all the land in the nation, to more than 1.5 million white families, native-born and foreign. As Merritt points out, some 46 million American adults today, nearly 20 percent of all American adults, descend from those homesteaders. “If that many white Americans can trace their legacy of wealth and property ownership to a single entitlement program,” Merritt writes, “then the perpetuation of black poverty must also be linked to national policy.”
The federal government turned its back on its financial obligations to four million newly liberated people, and then it left them without protection as well, as white rule was reinstated across the South starting in the 1880s. Federal troops pulled out of the South, and white Southerners overthrew biracial governance using violence, coups and election fraud.
The campaigns of white terror that marked the period after Reconstruction, known as Redemption, once again guaranteed an exploitable, dependent labor force for the white South. Most black Southerners had no desire to work on the same forced-labor camps where they had just been enslaved. But white Southerners passed state laws that made it a crime if they didn’t sign labor contracts with white landowners or changed employers without permission or sold cotton after sunset, and then as punishment for these “crimes,” black people were forcibly leased out to companies and individuals. Through sharecropping and convict leasing, black people were compelled back into quasi slavery. This arrangement ensured that once-devasted towns like Greenwood, Miss., were again able to call themselves the cotton capitals of the world, and companies like United States Steel secured a steady supply of unfree black laborers who could be worked to death, in what Douglass A. Blackmon, in his Pulitzer Prize-winning book, calls “slavery by another name.”
Yet black Americans persisted, and despite the odds, some managed to acquire land, start businesses and build schools for their children. But it was the most prosperous black people and communities that elicited the most vicious response. Lynchings, massacres and generalized racial terrorism were regularly deployed against black people who had bought land, opened schools, built thriving communities, tried to organize sharecroppers’ unions or opened their own businesses, depriving white owners of economic monopolies and the opportunity to cheat black buyers.
At least 6,500 black people were lynched from the end of the Civil War to 1950, an average of nearly two a week for nine decades. Nearly five black people, on average, have been killed a week by law enforcement since 2015.
The scale of the destruction during the 1900s is incalculable. Black farms were stolen, shops burned to the ground. Entire prosperous black neighborhoods and communities were razed by white mobs from Florida to North Carolina to Atlanta to Arkansas. One of the most infamous of these, and yet still widely unknown among white Americans, occurred in Tulsa, Okla., when gangs of white men, armed with guns supplied by public officials, destroyed a black district so successful that it was known as Black Wall Street. They burned more than 1,200 homes and businesses, including a department store, a library and a hospital, and killed hundreds who it is believed were buried in mass graves. In 2001, a commission on the massacre recommended that the state pay financial restitution for the victims, but the State Legislature refused. And this is the place that in the midst of weeks of protests crying out for black lives to matter, Donald Trump, nearly 100 years later, chose to restart his campaign rallies.
Even black Americans who did not experience theft and violence were continuously deprived of the ability to build wealth. They were denied entry into labor unions and union jobs that ensured middle-class wages. North and South, racist hiring laws and policies forced them into service jobs, even when they earned college degrees. They were legally relegated into segregated, substandard neighborhoods and segregated, substandard schools that made it impossible to compete economically even had they not faced rampant discrimination in the job market. In the South, for most of the period after the Civil War until the 1960s, nearly all the black people who wanted to earn professional degrees — law, medical and master’s degrees — had to leave the region to do so even as white immigrants attended state colleges in the former Confederacy that black American tax dollars helped pay for.
As part of the New Deal programs, the federal government created redlining maps, marking neighborhoods where black people lived in red ink to denote that they were uninsurable. As a result, 98 percent of the loans the Federal Housing Administration insured from 1934 to 1962 went to white Americans, locking nearly all black Americans out of the government program credited with building the modern (white) middle class.
“At the very moment a wide array of public policies was providing most white Americans with valuable tools to advance their social welfare — ensure their old age, get good jobs, acquire economic security, build assets and gain middle-class status — most black Americans were left behind or left out,” the historian Ira Katznelson writes in his book, “When Affirmative Action Was White.” “The federal government … functioned as a commanding instrument of white privilege.”
In other words, while black Americans were being systematically, generationally deprived of the ability to build wealth, while also being robbed of the little they had managed to gain, white Americans were not only free to earn money and accumulate wealth with exclusive access to the best jobs, best schools, best credit terms, but they were also getting substantial government help in doing so.
The civil rights movement ostensibly ended white advantage by law. And in the gauzy way white Americans tend to view history, particularly the history of racial inequality, the end of legal discrimination, after 350 years, is all that was required to vanquish this dark history and its effects. Changing the laws, too many Americans have believed, marked the end of the obligation. But civil rights laws passed in the 1960s merely guaranteed black people rights they should have always had. They dictated that from that day forward, the government would no longer sanction legal racial discrimination. But these laws did not correct the harm nor restore what was lost.
Brown v. Board of Education did not end segregated and unequal schools; it just ended segregation in the law. It took court orders and, at times, federal troops to see any real integration. Nevertheless, more than six decades after the nation’s highest court proclaimed school segregation unconstitutional, black children remain as segregated from white kids as they were in the early 1970s. There has never been a point in American history where even half the black children in this country have attended a majority-white school.
Making school segregation illegal did nothing to repay black families for the theft of their educations or make up for generations of black Americans, many of them still living, who could never go to college because white officials believed that only white students needed a high school education and so refused to operate high schools for black children. As late as the 1930s, most communities in the South, where the vast majority of black Americans lived, failed to provide a single public high school for black children, according to “The Education of Blacks in the South, 1860-1935,” by the historian James D. Anderson. Heavily black Richmond County in Georgia, for instance, did not provide a four-year black high school from 1897 to 1945.
The Fair Housing Act prohibited discrimination in housing, but it did not reset real estate values so that homes in redlined black neighborhoods whose prices were artificially deflated would be valued the same as identical homes in white neighborhoods, which had been artificially inflated. It did not provide restitution for generations of black homeowners forced into predatory loans because they had been locked out of the prime credit market. It did not repay every black soldier who returned from World War II to find that he could not use his G.I. Bill to buy a home for his family in any of the new whites-only suburbs subsidized by the same government he fought for. It did not break up the still-entrenched housing segregation that took decades of government and private policy to create. Lay those redlining maps over almost any city in America with a significant black population, and you will see that the government-sanctioned segregation patterns remain stubbornly intact and that those same communities bore the brunt of the predatory lending and foreclosure crisis of the late 2000s that stole years of black homeownership and wealth gains.
Making employment discrimination illegal did not come with a check for black Americans to compensate for all the high-paying jobs they were legally barred from, for the promotions they never got solely because of their race, for the income and opportunities lost to the centuries of discrimination. Nor did these laws end ongoing discrimination any more than speed limits without enforcement stop people from driving too fast. These laws opened up opportunities for limited numbers of black Americans while largely leaving centuries of meticulously orchestrated inequities soundly in place, but now with the sheen of colorblind magnanimity.
The inclination to bandage over and move on is a definitive American feature when it comes to anti-black racism and its social and material effects. A joint 2019 study by faculty members at Yale University’s School of Management, Department of Psychology and Institute for Social and Policy Studies describes this phenomenon this way: “A firm belief in our nation’s commitment to racial egalitarianism is part of the collective consciousness of the United States of America. … We have a strong and persistent belief that our national disgrace of racial oppression has been overcome, albeit through struggle, and that racial equality has largely been achieved.” The authors point out how white Americans love to play up moments of racial progress like the Emancipation Proclamation, Brown v. Board of Education and the election of Barack Obama, while playing down or ignoring lynching, racial apartheid or the 1985 bombing of a black neighborhood in Philadelphia. “When it comes to race relations in the United States … most Americans hold an unyielding belief in a specific, optimistic narrative regarding racial progress that is robust to counterexamples: that society has come a very long way already and is moving rapidly, perhaps naturally toward full racial equality.”
This remarkable imperviousness to facts when it comes to white advantage and architected black disadvantage is what emboldens some white Americans to quote the passage from Martin Luther King’s 1963 “I Have A Dream” speech about being judged by the content of your character and not by the color of your skin. It’s often used as a cudgel against calls for race-specific remedies for black Americans — while ignoring the part of that same speech where King says black people have marched on the capital to cash “a check which has come back marked ‘insufficient funds.’”
King has been evoked continuously during this season of protests, sometimes to defend those who looted and torched buildings, sometimes to condemn them. But in this time of foment, there has been an astounding silence around his most radical demands. The seldom-quoted King is the one who said that the true battle for equality, the actualization of justice, required economic repair.
After watching Northern cities explode even as his movement’s efforts to pass the 1964 Civil Rights Act and the 1965 Voting Rights Act came to fruition, King gave a speech in 1967 in Atlanta before the Hungry Club Forum, a secret gathering of white politicians and civil rights leaders.
King said: “For well now 12 years, the struggle was basically a struggle to end legal segregation. In a sense it was a struggle for decency. It was a struggle to get rid of all of the humiliation and the syndrome of depravation surrounding the system of legal segregation. And I need not remind you that those were glorious days. … It is now a struggle for genuine equality on all levels, and this will be a much more difficult struggle. You see, the gains in the first period, or the first era of struggle, were obtained from the power structure at bargain rates; it didn’t cost the nation anything to integrate lunch counters. It didn’t cost the nation anything to integrate hotels and motels. It didn’t cost the nation a penny to guarantee the right to vote. Now we are in a period where it will cost the nation billions of dollars to get rid of poverty, to get rid of slums, to make quality integrated education a reality. This is where we are now. Now we’re going to lose some friends in this period. The allies who were with us in Selma will not all stay with us during this period. We’ve got to understand what is happening. Now they often call this the white backlash. … It’s just a new name for an old phenomenon. The fact is that there has never been any single, solid, determined commitment on the part of the vast majority of white Americans to genuine equality for Negroes.”
A year later, in March 1968, just a month before his assassination, in a speech to striking, impoverished black sanitation workers in Memphis, King said: “Now our struggle is for genuine equality, which means economic equality. For we know that it isn’t enough to integrate lunch counters. What does it profit a man to be able to eat at an integrated lunch counter if he doesn’t have enough money to buy a hamburger?”
As we focus on police violence, we cannot ignore an even starker indication of our societal failures: Racial income disparities today look no different than they did the decade before King’s March on Washington. In 1950, according to a forthcoming study by the economists Moritz Schularick, Moritz Kuhn and Ulrike Steins in The Journal of Political Economy, black median household income was about half that of white Americans, and today it remains so. More critical, the racial wealth gap is about the same as it was in the 1950s as well. The typical black household today is poorer than 80 percent of white households. “No progress has been made over the past 70 years in reducing income and wealth inequalities between black and white households,” according to the study.
And yet most Americans are in an almost pathological denial about the depth of black financial struggle. That 2019 Yale University study, called “The Misperception of Racial Economic Inequality,” found that Americans believe that black households hold $90 in wealth for every $100 held by white households. The actual amount is $10.
About 97 percent of study participants overestimated black-white wealth equality, and most assumed that highly educated, high-income black households were the most likely to achieve economic parity with white counterparts. That is also wrong. The magnitude of the wealth gap only widens as black people earn more income.
“These data suggest that Americans are largely unaware of the striking persistence of racial economic inequality in the United States,” the study’s authors write. Americans, they write, tend to explain away or justify persistent racial inequality by ignoring the “tailwinds that have contributed to their economic success while justifying inequalities of wealth and poverty by invoking the role of individuals’ traits and skills as explanations for these disparities.” They use the exceptional examples of very successful black people to prove that systemic racism does not hold black Americans back and point to the large numbers of impoverished black people as evidence that black people are largely responsible for their own struggles.
In 2018, Duke University’s Samuel DuBois Cook Center on Social Equity and the Insight Center for Community Economic Development published a report called “What We Get Wrong About Closing the Racial Wealth Gap” that examined the common misperceptions about the causes of the racial wealth gap and presented data and social-science research that refutes them all.
The study shows that the racial wealth gap is not about poverty. Poor white families earning less than $27,000 a year hold nearly the same amount of wealth as black families earning between $48,000 and $76,000 annually. It’s not because of black spending habits. Black Americans have lower incomes over all but save at a slightly higher rate than white Americans with similar incomes. It’s not that black people need to value education more. Black parents, when controlling for household type and socioeconomic status, actually offer more financial support for their children’s higher education than white parents do, according to the study. And some studies have shown that black youths, when compared with white youths whose parents have similar incomes and education levels, are actually more likely to go to college and earn additional credentials.
But probably most astounding to many Americans is that college simply does not pay off for black Americans the way it does for other groups. Black college graduates are about as likely to be unemployed as white Americans with a high school diploma, and black Americans with a college education hold less wealth than white Americans who have not even completed high school. Further, because black families hold almost no wealth to begin with, black students are the most likely to borrow money to pay for college and then to borrow more. That debt, in turn, means that black students cannot start saving immediately upon graduation like their less-debt-burdened peers.
It’s not a lack of homeownership. While it’s true that black Americans have the lowest homeownership rates in the nation, simply owning a home is not the same asset that it is for white Americans. Black Americans get higher mortgage rates even with equal credit worthiness, and homes in black neighborhoods do not appreciate at the same rate as those in white areas, because housing prices are still driven by the racial makeup of communities. As the Duke University economist William Darity Jr., the study’s lead author, points out, the ability to purchase a home in the first place is seldom a result of just the hard work and frugality of the buyer. “It’s actually parental and grandparental wealth that facilitates the acquisition of a home.”
It’s not because a majority of black families are led by a single mother. White single women with children hold the same amount of wealth as single black women with no children, and the typical white single parent has twice the wealth of the typical two-parent black family.
To summarize, none of the actions we are told black people must take if they want to “lift themselves” out of poverty and gain financial stability — not marrying, not getting educated, not saving more, not owning a home — can mitigate 400 years of racialized plundering. Wealth begets wealth, and white Americans have had centuries of government assistance to accumulate wealth, while the government has for the vast history of this country worked against black Americans doing the same.
“The cause of the gap must be found in the structural characteristics of the American economy, heavily infused at every point with both an inheritance of racism and the ongoing authority of white supremacy,” the authors of the Duke study write. “There are no actions that black Americans can take unilaterally that will have much of an effect on reducing the wealth gap. For the gap to be closed, America must undergo a vast social transformation produced by the adoption of bold national policies.”
At the center of those policies must be reparations. “The process of creating the racial wealth chasm begins with the failure to provide the formerly enslaved with the 40 acres they were promised,” Darity told me. “So the restitution has never been given, and it’s 155 years overdue.”
Darity has been studying and advocating reparations for 30 years, and this spring he and his partner, A. Kirsten Mullen, published the book “From Here to Equality: Reparations for Black Americans in the 21st Century.” Both history and road map, the book answers the questions about who should receive reparations and how a program would work. I will not spend much time on that here, except to make these few points. Reparations are not about punishing white Americans, and white Americans are not the ones who would pay for them. It does not matter if your ancestors engaged in slavery or if you just immigrated here two weeks ago. Reparations are a societal obligation in a nation where our Constitution sanctioned slavery, Congress passed laws protecting it and our federal government initiated, condoned and practiced legal racial segregation and discrimination against black Americans until half a century ago. And so it is the federal government that pays.
Reparations would go to any person who has documentation that he or she identified as a black person for at least 10 years before the beginning of any reparations process and can trace at least one ancestor back to American slavery. Reparations should include a commitment to vigorously enforcing existing civil rights prohibitions against housing, educational and employment discrimination, as well as targeted investments in government-constructed segregated black communities and the segregated schools that serve a disproportionate number of black children. But critically, reparations must include individual cash payments to descendants of the enslaved in order to close the wealth gap.
The technical details, frankly, are the easier part. The real obstacle, the obstacle that we have never overcome, is garnering the political will — convincing enough Americans that the centuries-long forced economic disadvantage of black Americans should be remedied, that restitution is owed to people who have never had an equal chance to take advantage of the bounty they played such a significant part in creating.
This country can be remarkably generous. Each year Congress allocates money — this year $5 million — to help support Holocaust survivors living in America. In backing the funding measure, Representative Richard E. Neal, a Democrat from Massachusetts, said in 2018 that this country has a “responsibility to support the surviving men and women of the Holocaust and their families.” And he is right. It is the moral thing to do. And yet Congress has refused for three decades to pass H.R. 40, a bill to simply study the issue of reparations. Its drafter, Representative John Conyers Jr., a Michigan Democrat and descendant of enslaved Americans, died in 2019 — during the 400th anniversary of the arrival of the first Africans enslaved in Virginia — without the bill ever making it out of committee.
There are living victims of racial apartheid and terrorism born in this country, including civil rights activists who lost their homes and jobs fighting to make this country a democracy, who have never received any sort of restitution for what they endured. Soon, like their enslaved ancestors, they will all be dead, too, and then we’ll hear the worn excuse that this country owes no reparations because none of the victims are still alive. Darity and Mullen call this the “delay until death” tactic. Procrastination, they say, does not erase what is owed.
The coronavirus pandemic has dispatched the familiar lament that even if it is the right thing to do, this nation simply cannot afford to make restitution to the 40 million descendants of American slavery. It took Congress just a matter of weeks to pass a $2.2 trillion stimulus bill to help families and businesses struggling from the Covid-19 shutdowns. When, then, will this nation pass a stimulus package to finally respond to the singularity of black suffering?
Colossal societal ruptures have been the only things potent enough to birth transformative racial change in this country, and perhaps a viral pandemic colliding with our nation’s 400-year racial one has forced that type of rupture today. Maybe it had to be this way; this deep and collective suffering was necessary for white Americans to feel enough of the pain that black Americans have always known to tilt the scale.
With Covid-19, black Americans face a financial catastrophe unlike any in nearly a century. Black Americans had already lost the largest share of their wealth of all racial groups as a result of the last recession and have struggled the most to recover. They are the only racial group whose household median income is less than it was in 2000. Today already more than half of black adults are out of work. Black businesses are withering. Their owners were almost completely shut out of the federal paycheck-protection program — just 12 percent of black and Latino business owners who applied for the small-business loans received the full amounts they requested, according to a Global Strategy Group survey last month. Nearly half the respondents said they would most likely shutter permanently within six months. Black children are expected to lose 10 months’ worth of academic gains because of school closures, more than any other group, and yet they attend the schools with the least resources already, schools that will have even fewer resources as states slash spending to make up for budget shortfalls. One in five black homeowners and one in four renters have missed at least one home payment since the shutdowns began — the highest of all racial groups.
The pandemic, Keeanga-Yamahtta Taylor, a scholar of social movements and racial inequality at Princeton University, told me, “has pulled what is hidden and buried on the bottom to the surface so that it can’t actually be ignored. It is a radicalizing factor because conditions that have been so dire, now combined with revolts in the street, might lead one to believe that not only is the society unraveling, but it might cause you to question what foundation it was built upon in the first place.”
Race-neutral policies simply will not address the depth of disadvantage faced by people this country once believed were chattel. Financial restitution cannot end racism, of course, but it can certainly mitigate racism’s most devastating effects. If we do nothing, black Americans may never recover from this pandemic, and they will certainly never know the equality the nation has promised.
So we are left with a choice. Will this moment only feel different? Or will it actually be different?
If black lives are to truly matter in America, this nation must move beyond slogans and symbolism. Citizens don’t inherit just the glory of their nation, but its wrongs too. A truly great country does not ignore or excuse its sins. It confronts them and then works to make them right. If we are to be redeemed, if we are to live up to the magnificent ideals upon which we were founded, we must do what is just.
It is time for this country to pay its debt. It is time for reparations.
It seems that everybody is entitled to reparations these days. Where does it end? With the bankruptcy of the country? Is that the ultimate goal?
To wrap up this segment of my musings 5.0 I am going to include some comments made by Ron DeSantis.
Gov. Ron DeSantis blasted reports that the federal government may pay $450,000 per person to those separated from their families at the U.S./Mexican border, calling the proposed payouts a “slap in the face” to American citizens.
“I’ve seen a lot in my day. I’ve seen a lot that’s happened in the last nine or ten months that I never thought I’d see. But this takes the cake. If that is done, that is going to be a slap in the face to every hard-working American,” DeSantis said Friday in Lake County.
The Governor said he was “very, very concerned about reports, I think it was in the Wall Street Journal, that the Biden administration is going to pay with tax dollars hundreds of millions of dollars to people who came to our country illegally across the southern border as ‘damages.’”
The American Civil Liberties Union filed a class-action lawsuit in 2019 on behalf of people separated from their families during the Donald Trump administration, and the move appears to be for settlement with aggrieved parties. If a parent and a child were separated, each could receive the $450,000 compensation from the U.S. Departments of Justice, Homeland Security and Health and Human Services.
NBC News reports 5,600 children were separated from parents during the Trump era, with 1,000 families still separated.
The deal is still being negotiated by the Justice Department, but DeSantis denotes the irony of compensation for non-citizens while Americans suffer economically.
“I mean, you think about it, Americans are getting more in their gas bills. They’re getting more in their grocery bills. You’ve had all kinds of really bad policies throughout our country that have limited freedom. And you’re going to turn around from that and you’re going to do $475,000 for an individual that came illegally to this country,” DeSantis decried.
Though an ACLU lawyer says the punitive policy “deliberately traumatized” these families, for DeSantis that issue seems more ancillary.
“It’ll especially be a slap in the face to people that have immigrated legally to this country,” DeSantis adds. “That should not be allowed to stand. It’s wrong and whatever we can do in Florida to fight back against it, we will do.”
It is uncertain what Florida can do to intervene in federal payouts over civil rights violations.
Friday’s remarks continue a DeSantis tradition of building newsworthy commentary from Wall Street Journal articles.
DeSantis, addressing the International Boatbuilders Exhibition in September, suggested it was a “good sign” that men aren’t going to college as much as women because they are shunning traditional higher education for trades.
“There was actually an article in The Wall Street Journal recently about, you know, decline in college for men, or something,” DeSantis continued, deepening his voice briefly for comic effect to introduce the article highlighting that three in five college students are now women, with men feeling “lost.”
“I guess there was a decline in the number of men, the percentage of men going to college or whatever. And they acted like this was a bad thing. And honestly, like, you know, to me, I think that is probably a good sign,” added the Governor, who has two degrees from IVY League universities, Harvard and Yale.
“Because I think people are looking at this and they’re acknowledging, you know, some of these universities are not giving you very much for your money. You’re not necessarily going to get ahead in that.”
Why are northern cities paying criminals a salary not to break the law?
Should we pay people not to commit crime?
How do you get people to stop doing something? If you’re an economist, you might try paying them to stop. That’s just what the town of Richmond, CA, has done to reduce violent crime. The town has had success with this program so far – so much that other cities are considering adopting it. The idea sounds crazy, and seems like an insult to hard-working, law-abiding citizens. There are reasons to think it could be a disaster. But there is at least one reason it could work.
Richmond’s program identifies the local residents most likely to commit violent crime and pays them up to $1000 per month to participate in a special program. The “Peace Fellows,” as the participants are called, must attend group therapy sessions and work with mentors to develop plans for their lives.
Richmond’s program has not been rigorously evaluated. We know that gun violence in the city fell substantially after the program was adopted, making the Peace Fellowships seem cost-effective. But this correlation does not imply causation – it might just be a coincidence. Richmond changed a lot of policies during this period. Without a control group – likely offenders just like the Peace Fellows who did not participate in the program – it is impossible to tell how much, if any, of the drop in violent crime was due to the Peace Fellowships.
If the old adage that crime doesn’t pay is true, then you might think that would-be Peace Fellows already have incentives to avoid crime, and yet ignore them. How would more incentives help? Crime is tempting because it offers an immediate reward, while its costs and risks are long-term. Richmond’s program fights fire with fire, offering an immediate reward for avoiding crime.
Other programs share this structure and have been rigorously evaluated. Sometimes these programs are successful, but many times the financial incentive has no effect on behavior. That’s not a great outcome, but it’s not the worst case. The worst case would be if the incentives actually led to more bad behavior. And this may well happen with a Peace Fellowship program.
Recall that the Richmond program pays likely offenders (which the city defines as people suspected of previous violence) not to commit crime. This gives likely offenders an incentive not to commit crime, which is good. But it also creates an incentive to hurt others so that the city labels you a “likely offender” and offers to pay you to stop. This won’t lead everyone to act violently, of course, but for individuals who are struggling and don’t see other opportunities to improve their situations, this could push them in that direction.
In addition, there is evidence that paying people to do something reduces their intrinsic motivation. It changes the story we tell ourselves about why we’re doing something from “I’m doing this because I enjoy it” or “it’s good for me” to “I’m doing this for the money.” Once the payments stop, people are less interested in continuing that behavior than they were before payment was an option. This suggests that paying criminals to obey the law could backfire: some people who wouldn’t have committed crime otherwise will now think, “why stay out of trouble if no one is paying me for it?” The problem is we might not know this is happening until after the program ends and the payments stop.
So, does this mean we should consider Richmond’s success a fluke and abandon this approach? Not necessarily.
A key requirement of the Peace Fellowship is participation in group therapy and mentoring programs. This points to a way in which the program could be effective.
There is another program, called “Becoming a Man” (BAM), that teaches at-risk teens skills like impulse control and conflict resolution, and helps students make better decisions in social situations. This approach of using practical problem-solving techniques to change behavior patterns and thinking is known as cognitive behavioral therapy (CBT). CBT is hard work but apparently worthwhile. The University of Chicago Crime Lab rigorously evaluated BAM and found the program reduced participants’ arrest rates and increased high school graduation rates. The effects were large and lasted long after the program ended.
BAM was evaluated in school and juvenile detention settings, where attendance was mandatory. If we want to bring CBT to other at-risk populations, we need people to participate voluntarily. Perhaps Richmond has found a way, with its Peace Fellowship stipends, to get targeted individuals to willingly engage with CBT long enough to make a difference.
Paying people just to obey the law could make things worse. Being considered a likely offender becomes a prize, and as soon as the money stops, so would the good behavior. Instead we should use financial incentives to foster a lifetime of good habits. This is a difficult task, but perhaps it is not an impossible one.
The New Protection Racket: Paying Criminals Not to Commit Crimes
“Only a virtuous people are capable of freedom,” Benjamin Franklin wrote to Abbés Chalut and Arnoux in France during the spring of 1787, as the United States struggled to define itself in the pre-constitutional period. “As nations become corrupt and vicious, they have more need of masters.” The social contract in a society defined by individual liberty required citizens to model respectable behavior, thus reducing the need for collective intervention to maintain the peace.
One has to wonder what Franklin would make of the capital of the country he and his fellow great thinkers founded some two hundred and twenty-nine years later. Rather than rely on the virtue of its citizenry, the city council of Washington DC has chosen to pay for it instead.
Related: U.S. Police Chiefs Vulnerable as Crime Rates, Media Pressures Rise
The council voted unanimously to implement a program piloted in California to reduce criminal recidivism by paying former convicts not to commit crimes. Normally, the incentive structures run in the other direction – for instance, fines and loss of freedom when convicted of crimes, and civil penalties for violation of regulations on myriad potential offenses from watering lawns on the wrong day to painting houses in an unapproved color. Richmond, California chose to pay ex-cons to comply with the law, and not surprisingly, the program succeeded – at least in the short term.
“In Richmond, 79 percent of “fellows” participating in the program have not been suspected of involvement in any gun crimes since joining the program,” reports the Associated Press, “and 84 percent have not been injured by gunfire, the program’s executive director, DeVone Boggan, said in a report to the Council.” During the first eight years of the program, Boggan claimed that homicides in Richmond dropped by 77 percent, but the correlation so far lacks any reproducible connection to causation. Still, the city feels confident enough in these results to recommend it to Washington DC.
Related: FBI Chief Debunks Obama’s Crusade for Criminal Justice Reform
How much did it cost the citizens of Richmond to keep violent felons from attacking them? The “stipend” for each “fellow” in compliance can reach $9,000 a year. Bear in mind that this money comes from people who don’t commit crimes – the taxpayers of Richmond. Washington would open the program for up to 200 people a year and set aside $460,000 in annual stipend payments, or roughly $2,300 per person a year if all qualified for the cash prize for good citizenship … or at least for not getting caught.
Crime may not pay, but after-crime certainly will, and not just for the criminals. The city projects the overall cost of the program in its first four years at $4.9 million, even though the total amount of the stipends comes to only $1.84 million in the same period. Sixty-two percent of the funding will go to the bureaucracy necessary for paying ex-cons to obey the law.
The money would be well spent, some argued, because the cost of preventing more victimization pales in comparison to the damage these “fellows” would otherwise cause. Perhaps it might be cost effective in that narrow sense, but the taxpayers who fund a program that sounds curiously similar to a protection racket might wonder if they’re being victimized anyway. Nice community ya got there, folks. Shame if anything happened to it ….
Related: After California Shootings, Muslim-American Families Struggle With Identity
The cash payments point to a fundamental fairness issue, too. If ex-cons get cash for not breaking the law, why shouldn’t everyone get a piece of that action? If people promise not to conduct breaking and entering, why should it take a conviction to get $2300 a year from Uncle Sugar? I’d gladly promise not to commit a violent felony in 2016 if it means I can get my hands on a few thousand dollars. What’s more, my clean record makes me a more reliable risk, too.
And why stick to major crimes? Maybe the government can pay people not to have loud parties. Here in Minnesota, we could pay drivers not to tailgate even when six inches of snow has come down in the last hour. (I’d actually donate to a fund for that one.)
The money is beside the point, however. As Franklin pointed out, liberty is suited for a virtuous people – those who voluntarily operate in good faith within the framework of self-governance. Virtue by its nature cannot be bought. Those who respond to the social contract only on the basis of wealth incentives will only abide by it to the extent that the cash balances out competing incentives.
Furthermore, the moral impact of such programs reward the threat of implied violence by paying cash to hold them temporarily in abeyance. Rather than incentivizing felons to demonstrate rehabilitation, we’re essentially paying them to be dangerous.
Related: 21 Unbelievable Facts About Guns in America
Rudyard Kipling put it best in his poem Dane-Geld, the practice of Vikings to extort cities and states to prevent invasions and sackings:
It is always a temptation for a rich and lazy nation,
To puff and look important and to say:
“Though we know we should defeat you, we have not the time to meet you.
We will therefore pay you cash to go away.”
And that is called paying the Dane-geld;
But we’ve proved it again and again,
That if once you have paid him the Dane-geld
You never get rid of the Dane.
Either we hold all citizens equally responsible for conducting themselves according to the rule of law, or we pay the Dane-geld. But don’t be surprised when we not only can’t get rid of the Dane, but that we find ourselves hip-deep in them. Such are the consequences for discarding virtue and equal application of the law for shortcuts around the difficult but necessary responsibilities to enforce it – the exact impulse Kipling lamented.
Cities begin to challenge a bedrock of justice: They’re paying criminals not to kill
RICHMOND, Calif. — The odds were good that Lonnie Holmes, 21, would be the next person to kill or be killed in this working-class suburb north of San Francisco.
Four of his cousins had died in shootings. He was a passenger in a car involved in a drive-by shooting, police said. And he was arrested for carrying a loaded gun.
But when Holmes was released from prison last year, officials in this city offered something unusual to try to keep him alive: money. They began paying Holmes as much as $1,000 a month not to commit another gun crime.
Cities across the country, beginning with the District of Columbia, are moving to copy Richmond’s controversial approach because early indications show it has helped reduce homicide rates.
But the program requires governments to reject some basic tenets of law enforcement even as it challenges notions of appropriate ways to spend tax dollars.
In Richmond, the city has hired ex-convicts to mentor dozens of its most violent offenders and allows them to take unconventional steps if it means preventing the next homicide.
For example, the mentors have coaxed inebriated teenagers threatening violence into city cars, not for a ride to jail but home to sleep it off — sometimes with loaded firearms still in their waistbands. The mentors have funded trips to South Africa, London and Mexico City for rival gang members in the hope that shared experiences and time away from the city streets would ease tensions and forge new connections.
And when the elaborate efforts at engagement fail, the mentors still pay those who pledge to improve, even when, like Holmes, they are caught with a gun, or worse — suspected of murder.
The city-paid mentors operate at a distance from police. To maintain the trust of the young men they’re guiding, mentors do not inform police of what they know about crimes committed. At least twice, that may have allowed suspected killers in the stipend program to evade responsibility for homicides.
Police officers guard the scene of a fatal shooting of a 15-year-old boy in Richmond, Calif. (Jahi Chikwendiu/The Washington Post)
And yet, interest in the program is surging among urban politicians. Officials in Miami, Toledo, Baltimore and more than a dozen cities in between are studying how to replicate Richmond’s program.
The District of Columbia is first in line.
Implementing the Richmond model has emerged as a central fight this year between D.C. Mayor Muriel E. Bowser and the D.C. Council.
Bowser (D) is opposed to the strategy, arguing that the city should instead use its resources to fund jobs programs and that there is little independent analysis of the Richmond program. The mayor did not include money for it in her proposed 2017 budget released Thursday, and Police Chief Cathy L. Lanier said she is skeptical of the need for the Richmond-style program and has not seen sufficient data to verify its results.
She and Kevin Donahue, Bowser’s deputy mayor for public safety, question the veracity of Richmond’s claims of having saved so many of the city’s most violent offenders, since mentors — and not police — pick the participants and there has not been a control group used to measure outcomes. “There’s never been a real evaluation of the program,” Lanier said. “They didn’t design the program to allow it to be evaluated,” Donahue added.
But this month, the D.C. Council unanimously approved the idea as the best response to a surge of violent deaths that rocked the city last year. D.C. Council member Kenyan R. McDuffie (D-Ward 5) has promised to shift money from the mayor’s other law-enforcement priorities to launch the program. He said the successes in Richmond cannot be ignored by city leaders serious about reducing crime.
[D.C. could be the next city to pay criminals to stay out of trouble ]
That’s because five years into Richmond’s multimillion-dollar experiment, 84 of 88 young men who have participated in the program remain alive, and 4 in 5 have not been suspected of another gun crime or suffered a bullet wound, according to DeVone Boggan, founder of the Richmond effort.
DeVone Boggan is the director of the Office of Neighborhood Safety in Richmond, Calif. (Jahi Chikwendiu/The Washington Post)
Youngsters chat with “neighborhood change agents” of the Office of Neighborhood Safety in Richmond, Calif. (Jahi Chikwendiu/The Washington Post)
City leaders credit the program with cutting Richmond’s homicide rate to less than half and helping it shed its reputation as one of the nation’s deadliest cities.
Those results have won over a pair of Richmond police chiefs, a series of mayors and even a sometimes-skeptical City Council, which continues to fund it despite budget shortfalls.
“Richmond was bold enough to take an untested step and try this model of really direct and intense intervention,” Richmond Police Chief Allwyn Brown said. “And it’s dealing with the violence in the right way: teaching these kids basic life skills and how to not resort to a gun and operate in a civil society.”
Richmond’s decision to pay people to stay out of trouble began a decade ago during a period of despair.
In 2007, Richmond’s homicide tally had surged to 47, making it the country’s sixth-deadliest city per capita. In the 20 years prior to that, Richmond lost 740 people to gun violence, and more than 5,000 had been injured by a bullet.
Elected leaders of the heavily African American city of about 100,000 began treating homicides as a public health emergency.
Residents gather where a 15-year-old boy was fatally shot in Richmond, Calif. (Jahi Chikwendiu/The Washington Post)
Boggan, who had lost a brother in a shooting in Michigan, came up with the core of the program after reading about a paid business school fellowship. He wondered whether troubled young men couldn’t be approached the same way and be paid to improve their lives. But he had to raise the money because he couldn’t persuade officials to give tax dollars directly to violent firearms offenders.
He hired men who had served time across San Francisco Bay at California’s San Quentin State Prison, often for their own gun crimes on the streets of Richmond.
Boggan and his streetwise crew of ex-cons selected an initial group of 21 gang members and suspected criminals for the program. One night in 2010, he persuaded them to come to city hall, where he invited them to work with mentors and plan a future without guns. As they left, Boggan surprised each one with $1,000 — no strings attached.
“No cop had ever handed them money without asking for something in return,” Boggan said. “And it had the intended effect. It sent a shock wave through the community. People sat up and began watching.”
Boggan’s Operation Peacemaker Fellowship is working with its fourth class of recruits, and he no longer needs to wow participants with money upfront. Dozens of former fellows on the streets of Richmond — alive and not in jail — are his best advertisement, he said.
Those in the program begin by drafting a “life map” and setting goals — such as applying for a job, going back to school or communicating better with family. They meet with facilitators who, unbeknown to the young men, are psychologists or sociologists. Together, they talk through issues in what amounts to stealth therapy.
Youngsters attend a life-skills class at the Office of Neighborhood Safety in Richmond, Calif., to discuss goals. (Jahi Chikwendiu/The Washington Post)
If they remain engaged for six months, meeting with mentors several times a week, they start to receive monthly payments between $1 and $1,000, depending on their level of participation. The maximum amount paid is $9,000 over the 18-month fellowship.
The program has handed out $70,000 a year, on average, since 2010, Boggan said.
Boggan believes that travel is another key to the program’s success. He sets aside $10,000 per fellow for trips that are often the first time participants have left the state or the country. But fellows must agree to partner with someone they have either tried to kill or who attempted to kill them.
“Wild, right?” Boggan says. “But they get out there and realize, ‘Hey, this cat’s just like me.’ ” Boggan’s measure of success: No fellows who have traveled together have been suspected in subsequent shootings against one another.
Boggan and his staff are used to questions — and criticism — about the money. How do they know it doesn’t go to drugs? Or bullets?
They maintain that the money is an indispensable tool, a way to keep kids engaged long enough to make a difference in their lives.
“This is controversial, I get it,” Boggan said. “But what’s really happening is that they are getting rewarded for doing really hard work, and it’s definite hard work when you talk about stopping picking up a gun to solve your problems.”
Sam Vaughn, a senior mentor, is more direct as he sits behind the wheel of a city-issued sedan on a recent morning, cruising a neighborhood looking for those who are in the program.
“We don’t know where it goes, and I’m not sure we always would want to know where it goes,” he said. Program managers, such as Vaughn, say they hope that the young men come to realize that the money is best spent on bills and making progress toward a safe, secure livelihood. He offers his own past as a cautionary tale: He beat a man into a vegetative state with the barrel of a gun and served 10 years in prison.
Sam Vaughn, left, and James Houston are “neighborhood change agents” with the Office of Neighborhood Safety in Richmond, Calif., who are trying to curb shootings. (Jahi Chikwendiu/The Washington Post)
Vaughn turns a corner and stops at the sight of a black car parked in front of a row of vacant houses pockmarked by bullet holes.
Holmes rolls down his window upon seeing Vaughn. A cloud of marijuana smoke escapes into the rainy morning.
So far, the attention — and money — seems to be working for Holmes. Although the $1,500 he has received since getting out of prison last fall has not led to a miraculous transformation, it enabled him to make a down payment on his black 2015 Nissan Versa — something meaningful for a young man who for many years was homeless.
He now spends hours each day in the car, driving around with friends, often smoking pot but not “hunting” — Vaughn’s term for seeking conflict with rivals.
Holmes is worried about how he’ll afford the $500 monthly car payments and insurance once the program ends. He has applied to get a job as an Uber driver.
Money from the program has helped Holmes stay straight, he said.
“The money is a big part,” Holmes says. “I can’t count the number of times it has kept me from . . . doing what I’ve got to do. It stopped me from going to hit that liquor [store] or this, you feel me, it’s a relief to not have to go do this and endanger my life for a little income, you feel me?”
Holmes hits up Vaughn for $5 for a quart of oil. Vaughn tries to use it as a teachable moment and reaches into his pocket. “You’ve got to protect your investment — you need an oil change,” Vaughn explains.
Lonnie Holmes, 21, left, says “If they do this in D.C., definitely, I think it will keep robberies down.” Next to him is Tommie Woods, 19. (Jahi Chikwendiu/The Washington Post)
Lonnie Holmes, 21, chats with “neighborhood change agents” with the Office of Neighborhood Safety. Four of his cousins have died in shootings. (Jahi Chikwendiu/The Washington Post)
Holmes settles back in the car and picks up a new blunt passed from a buddy in the back seat. He paused before inhaling. “If they do this in D.C., definitely, I think it will keep robberies down,” he said.
Nothing in the Richmond approach is black and white. Mentors operate with the support of the city in an ethical gray zone, often trying to anticipate the next shooting before it happens and then using the levers of the stipend and relationships to defuse conflict before it turns violent.
Success one day can morph into a setback the next, and consequences can be fatal.
On a recent day, three of the program’s 20 fellows sat in jail, charged with violating parole restrictions after they gathered with suspected gang members. One of them also was carrying a gun when police descended on the hangout, which means he could face a long term if convicted.
There have been worse failures.
Four of the program’s fellows have died since 2010, including two who were killed by other fellows, said Boggan and Vaughn. The suspected killers have not been charged and remain in the program.
“We’ve still got to deal with that fellow,” Vaughn said. “Because who’s to keep him from killing another one . . . ?”
Although the program appears to largely be working for its small group of recruits, homicides citywide are rising again, raising questions about its wider impact across Richmond.
After reaching a record low 11 homicides in 2014, killings nearly doubled in Richmond last year and are on pace to match that again this year.
And Boggan, 49, and Vaughn, 39, say their fourth class of recruits, younger than the first three — are progressing surprisingly slowly, and the mentors acknowledge that they are having a harder time connecting with the class of “youngsters.”
Vaughn and other mentors gather each morning to scour fellows’ Facebook and Instagram accounts, noting emojis of guns and bullets and references to past killings for signs of brewing conflict.
Family and friends leave the burial place earlier this month of a 14-year-old boy who was fatally shot at close range. He was two months shy of his birthday. (Jahi Chikwendiu/The Washington Post)
But two killings in the past month — of a 14-year-old and 15-year-old — have pierced the aura of success. For all the efforts by the mentors to identify the most likely to be caught in violence and bring them into the program, they weren’t aware of either of the victims.
Many details of how the District would replicate Richmond’s program have yet to be determined, but one aspect is clearly more complicated than in Richmond.
While the California strategy relies on private donors to fund the stipends and travel, the District would probably use roughly a half-million dollars annually in taxpayer money.
Asked whether he could justify the expense if it came from the city’s general fund, Richmond Mayor Tom Butt was uncertain. “I’d try really hard to find outside funding,” he said.
Vaughn applauds the District for proposing to use tax dollars, because he said it would give city residents and leaders a stake in the program’s success. The proof of whether it’s working will be seen in the city’s homicide tally, he said.
“We don’t have any model fellows — we’re not graduating law school students here,” said Vaughn. “All we’re trying to do is to get these guys to stop killing each other.”
Paying Offenders to Obey the Law
Incentive, bribe, or extortion?
Washington, D.C.’s City Council recently unanimously supported a plan to pay some of the city’s most violent offenders approximately $9,000 a year to not break the law. These offenders would be required to complete a program of education, vocational training, and counseling. It is unclear at this point what the criteria for success would be. In Richmond, California where such a program was instituted, killings dropped. That is certainly a plus. However, it is unclear whether the violent offenders who participated in the program committed other crimes for which they did not get caught. The most frequently used criterion for evaluating the success of a program is whether a person gets arrested. Yet we know that whether a chronic offender gets rearrested is a woefully insufficient indicator of whether he has reformed.
To know whether a criminal has become law-abiding, one would have to obtain more information than simply gathering arrest statistics. The question is what would a film of that person’s day to day life reveal? I have interviewed men, women, and juveniles who had committed many crimes in a single day, amounting to hundreds of offenses in a year without ever coming to the attention of law enforcement authorities. In a study like the one in California would participants be considered “successes” (i.e., reformed) because they lived for a prescribed period without killing anyone.
One might ask whether paying offenders to stop committing crimes is not actually a bribe. Or to look at it another way, isn’t the individual extorting the system in essence pledging, “I’ll be law abiding and not kill anyone as long as you pay me.” And so taxpayers hand over their hard-earned money to pay lawless people to obey the law.
Most parents do not pay their children for doing what is required – getting up in the morning, attending school, completing homework, and so forth. Mothers and fathers most certainly do not offer their offspring payment to refrain from stealing, to avoid physical fights, and not to vandalize property. Fulfilling obligations, treating people decently, and obeying the law are expected. As adults, we aren’t paid to obey the speed limit, file income tax returns, and pay bills.
What message do we give our children, teenagers, and fellow citizens by paying anyone (much less criminals) to be law abiding? Moreover, are we to pay chronic lawbreakers forever? Are they to anticipate an indefinite handout for doing what most people do routinely everyday of their lives? A program of paying chronic offenders not to commit crimes reveals incredible naïveté because the basic personality of the criminal is highly unlikely to change. It is a temporary measure, born of desperation, the success being unverifiable because there is no reliable way to adequately monitor how offenders are living. Such a program is immoral, sending the wrong message. It fails to instill conscience in people who have little in the way of conscience and fails to promote behaving responsibly simply because it is the right thing to do. Paying criminals not to kill and to obey the law undermines fundamental principles of civilization.
Law and Crime
The question of why people choose to commit crimes—often in the face of severe consequences—is at the root of criminal psychology, a branch of study that focuses on the intentions and behaviors of those who plan and carry out criminal acts. On the other hand, psychology itself has, over the years, engendered significant changes in how legal experts think about the crime and the law, as well as changes in how the mentally ill are treated by the criminal justice system.
Understanding Criminal Psychology
Criminal psychology does more than provide a glimpse into a criminal’s psyche. It also plays a role in how the law is applied. In the courtroom, legal practitioners require a grasp of defendants’ motivations and actions in order to render fair judgment. Forensic psychologists, as well as other mental health professionals, are often called upon to help clinically evaluate the mental states of people who break the law.
Psychology plays a role in police work as well. Criminal profilers—who aim to determine likely suspects through a mix of crime-scene analysis, investigative psychology, and other behavioral sciences—are often forensic psychologists or criminal anthropologists. Law enforcement agencies often rely on these experts to get inside the head of a potential culprit by identifying the perpetrator’s likely personality type, lifestyle habits, and quirks.
What does a criminal psychologist do?
Criminal psychologists study the behaviors and motivations of criminals. As such, they may conduct research to determine why crimes occur, consult with police departments to identify suspects, or provide expert testimony in court cases. Criminal psychologists may also engage in criminal profiling.
Why is criminal psychology important?
Criminal psychology findings may help identify suspects, potentially allowing authorities to prevent future crime or catch a serial criminal. On a larger scale, understanding what motivates criminals to break the law—whether poverty, personality, or otherwise—is necessary for creating the societal conditions that may allow them to stop.
How do the police use psychology to identify suspects?
The Psychology of Crime
Exactly why people commit crimes, and what could deter them from doing so in the future, is of great interest to psychologists and law enforcement officers alike. So far, extensive research points to a complex mix of genetics, personality, life circumstances, and environmental factors.
Psychologists also undertake research—often working with individuals who have committed crimes or are the victims of crimes—to understand how criminals choose victims, whether it’s possible to protect oneself from certain types of crime, and what legal professionals and policymakers can do to stop crimes before they occur. But though great progress has been made in understanding the criminal psyche, there’s much that remains unknown about certain criminals’ motivations, as well as an element of randomness in who is victimized and who isn’t.
What causes a person to commit crimes?
Some individuals commit crimes out of necessity; others are driven by anger, rejection of authority, a manipulative personality, or psychopathic tendencies. While stereotypes that all mentally ill people are prone to crime is not accurate, there are instances where mental illness—such as psychosis, substance abuse, or severe bipolar disorder—could influence someone to break the law.
How do criminals choose victims?
There is some evidence suggesting that criminals choose victims, at least in part, based on how they look or move. One study, for instance, found that criminals were more likely to label someone a potential victim if they appeared noticeably different from those around them or was moving in distracted, unusual ways.
How can you prevent being the victim of a violent crime?
How Psychology Influences the Law
Psychological and psychiatric findings have had a significant influence on the legal system, particularly since the beginning of the 20th century. Among significant changes include the push towards deinstitutionalization of the mentally ill, which coincided with the development of more advanced psychiatric medications and a greater understanding of the causes and potential treatments for mental disorders. In addition, the decriminalization of homosexuality in the U.S. was likely significantly influenced by the growing psychological acceptance that homosexuality—and more recently, being transgender—are not mental disorders.
In addition, legal professionals—including lawyers, police officers, and judges—now regularly consult with psychologists to assess defendants’ state of mind and provide treatment if necessary. This branch of psychology, known as forensic psychology, has grown exponentially in recent years.
How are psychology and the law related?
Psychology and the law both examine human behavior—the first seeks to understand it, and the second seeks to regulate it where necessary. Psychologists study people’s needs and desires, why they follow laws, and how they understand fairness and justice—and these findings, in turn, can help policymakers write laws that are in the public interest.
Why do most people obey the law?
They may be deterred by possible consequences, see the law as a legitimate authority, obey the law so as to better coordinate with others around them and society at large, or they may do it to signal their beliefs or morality. For most law-abiding people, their reasoning is likely a combination of the above factors.
Are Vaccine Mandates even Constitutional? What about protracted lockdowns?
- We The People Podcast:
- Are Vaccine Mandates Constitutional?
ugust 05, 2021
As students return to school, hundreds of colleges and universities are requiring those returning to campus to get coronavirus vaccines. Recently, a federal appeals court declined to grant an injunction against Indiana University’s vaccine mandate after it was challenged in a lawsuit by students who say it violates their constitutional rights. On this week’s episode, we discuss the Indiana case as well as the constitutionality of vaccination mandates issued or being considered by different institutions including schools; discuss whether states or the federal government may also have the power to issue vaccine mandates; and explain how Supreme Court cases, including those from over a century ago, might impact this question. Wendy K. Mariner, professor at the Boston University Schools of Public Health, Law, and Medicine, and Josh Blackman, constitutional law professor at the South Texas College of Law Houston, join host Jeffrey Rosen.
This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Amy Lu, Olivia Gross, and Lana Ulrich.
Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the President of the Harlan Institute. He has blogged on vaccination mandates at the Volokh Conspiracy and is the author of the forthcoming article “The Irrepressible Myth of Jacobson v. Massachusetts.”
Wendy K. Mariner is Professor Emerita, Health Law, Ethics & Human Rights at Boston University School of Public Health and holds professorships in the School of Law and the School of Medicine. She is the co-author of numerous works on public health and constitutional rights including Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
[00:00:00] Jeffrey Rosen: I’m Jeffrey Rosen, President and CEO of the National Constitution Center. And welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. It’s back to school time and more than 500 institutions have started requiring coronavirus vaccines. Indiana University’s vaccine mandate was recently upheld by a federal appeals court. And just a few days ago, a law professor sued George Mason University for requiring unvaccinated faculty and staff to wear masks and undergo frequent testing. On today’s episode, we will explore the question, “Are vaccine mandates constitutional?” I’m joined by two of America’s leading experts on this question and on the US Supreme Court case that is at the heart of the legal arguments, which is called Jacobson versus Massachusetts. Josh Blackman is a Constitutional Law Professor at the South Texas College of Law Houston, an Adjunct Scholar at the Cato Institute and President of the Harlan Institute.
He’s blogged on vaccine mandates and the Volokh Conspiracy, and is the author of the forthcoming article, The Irrepressible Myth of Jacobson. Josh, it is wonderful to have you back on the show.
[00:01:21] Josh Blackman: Good to be back, Jeff.
[00:01:24] Jeffrey Rosen: And Wendy. K. Mariner is the Edward R. Utley Emeritus Professor of Health Law at Boston University School of Public Health and holds professorships in the school of law and the school of medicine. She is the co author of many works on public health and constitutional rights, including Jacobson versus Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law. Wendy, thank you so much for joining.
[00:01:48] Wendy K. Mariner: Delighted to be here.
[00:01:50] Jeffrey Rosen: Let us begin with the challenge to Indiana University’s vaccination mandate. The case is called Klaassen v Trustees of Indiana University. The university required all faculty, students, and staff to have a COVID vaccine and be fully vaccinated or have an approved exemption before returning to campus. And the mandate was upheld by a district court and by the Seventh Circuit. Wendy, tell us about the core holding of the courts below namely that vaccination mandates are consistent with the Supreme court case Jacobson versus Massachusetts.
[00:02:32] Wendy K. Mariner: Well, the plaintiff’s raised students raised a a kind of argument that Jacobson might’ve raised, which was that the mandate violated their 14th Amendment, “Rights of personal autonomy and bodily integrity and the right to reject medical treatment.” Both the district court and as you pointed out, the Seventh Circuit rejected that claim on several grounds. The district court judge said, “Well, there was certainly no coercion here. The students were not being forced to get vaccinated. They could find a new school or get a job elsewhere for the staff.” Seventh Circuit agreed saying that while the plaintiff’s claim that Jacobson used a rational basis standard, of course, didn’t that was before the Supreme Court developed the tiers of scrutiny. But the Seventh Circuit Judge Easterbrook interestingly pointed out that universities require students to read and write things they would prefer not to.
And that that’s not a First Amendment violation and he noted, and I quote, “It’s hard to see a greater problem with medical conditions that help all students remain safe while learning. I think they emphasize that there was no constitutional right to attend a particular institution and that vaccination is simply a condition of entry onto the campus. They have… Universities have eligibility standards, and this is one.”
[00:03:46] Jeffrey Rosen: Thank you so much for that. Josh, as Wendy points out there were holdings by the district court, which said that the vaccine mandate is a neutral rule of general applicability. And by the Seventh Circuit where Judge Easterbrook wrote that the case is easier than Jacobson, Massachusetts for two reasons, Jacobson had no exception for adults. The Indiana University has exceptions for those who believe vaccinations are incompatible with their religious beliefs. And second, this is not a requirement for every adult member of the public, only those who attend the University of Indiana. People who don’t want to be vaccinated can go elsewhere. What else can you tell us descriptively about what the district court and the appellate court held about Indiana’s vaccination mandate?
[00:04:48] Josh Blackman: Well, let’s take a step back a little bit further to go to 1905. Constitutional law was in a very different place in 1905. The entire modern edifice of due process and equal protection and tiers of scrutiny simply did not exist. Cambridge, Massachusetts enacted a policy that said, “”f you fail to vaccinated, you have to pay a $5 penalty.” That was a criminal offense. There’s no actual requirement to get vaccinated. If you pay the $5 penalty, you could go on spreading small pox in your community be at this $5 penalty. At the time, many states had upheld school vaccination requirements. And if you want to attend a public school, you had to be vaccinated. But at the time it was fairly novel for there to be a community wide requirement. There’ll be decisions from North Carolina and Georgia upholding this. Jacobson became the test case, so to speak to the Supreme Court and in a decision that’s put seven to two by Justice Harlan, the judge that both you and I admire deeply the court upheld the Cambridge policy.
And this was very much a decision in the early 20th Century. The court said, “Unless there is a clear and palpable violation of the constitution the, the, the courts will not get in the way.” I think we should be very careful not to put too much weight onto Jacobson. This is a case that has not aged well, and it’s inconsiste… It consisted a lot of precedent. The Supreme Court also recognizes in Calvary Chapel Roman Catholic Diocese, that this is not a case you want to put a lot of weight on. But for Indiana, you don’t need to, right? Even before Jacobson courts across the country upheld vaccine requirements as a condition of school, right? “You’re attending a school, it’s a privilege. It’s not a right.” I think Wendy said that quite correctly and the school can have various requirements. So I don’t think you need any sort of complicated issues.
It’s also worth noting the Indiana policy had exemptions for disability and for religious exercise. I think there were nine plaintiffs, eight of the met religious exercise exemption. So there’s only one person who sought to sue who didn’t meet either exemption. And he unfortunately did not prevail. He asked to perhaps go somewhere else to get the shot. But I don’t think Jacobson is necessary for the Indiana case as sort of just cited as background material, but it’s, it’s the state conditions for attending a school.
[00:07:00] Jeffrey Rosen: Yeah. Thank you so much for that. Well, Wendy, Josh has put squarely on the table, the Jacobson case, which both of you have written about and in your article, It’s Not Your Great-Great-Grandfather’s Public Health Law, you argue that invoking Jacobson, a law that authorizes mandatory vaccination during an epidemic of a lethal disease with refusal punishable by a monetary penalty, like the one in Jacobson would be found constitutional. A law that authorizes mandatory vaccination to prevent dangerous contagious diseases in the absent of an epidemic like a school immunization requirement upheld in 1922 by Justice Brandeis of all people also would probably be upheld under certain conditions. But you say that the legitimacy of compulsory vaccination programs depends on the scientific factors and constitutional limits. Tell us more about those important arguments that you make in your article about Jacobson.
[00:07:52] Wendy K. Mariner: Well, it’s not simply the constitutional doctrine that governs, constitutional doctrine has to be applied in the context of the disease. And so what you find is if you… Are vaccine mandates constitutional, you ask law professors and they say, “It depends.” Some are, and some may not be, it depends on really scientific factors. The, you know, the, the justification for requiring vaccination depends on several things. One is the prevalence of a contagious disease. A second is how easily it’s transmitted, for example, through the air or by something that you touch as smallpox was the severity of disease symptoms that arise if someone is infected no cure, if there’s no treatment available to provide it. And obviously the availability of an effective vaccine that can prevent transmission or serious disease.
And in that case, in this case, the coronavirus meets all these conditions. At the time, Jacobson was decided vaccine development was in its infancy, of course. And there were some concerns and the [laughs] FDA wasn’t even established until 1938. So we ha… We had a long way from the situation scientifically and medically in 1905 from today. We have a lot more tools to protect people and prevent the transmission of illness.
[00:09:28] Jeffrey Rosen: Thank you so much for that. Josh, do you agree with Wendy’s argument that the constitutionality of various vaccine requirements turns on contextual factors, including the effectiveness of the vaccine and, and health tests, and then tell us about your forthcoming article, The Irrepressible Myth of Jacobson, which is so buzzy that it may have been read at the Supreme Court where Justice Gorsuch invoked similar arguments in his recent piece about religious exemptions.
[00:09:59] Josh Blackman: Sure. I’ll be frank, I don’t think Jacobson stands on very strong legs. And with respect to Wendy, I think it’s an old decision. Just to give you a sense Jeff, Jacobson was decided two months before Lochner was decided. This was decided by basically the same core as Lochner. Of course Lochner split five to four, this was seven to two, but constitutional law was in a very different place in 19, teens. It was just a very different world. In the modern sense, substantive due process, the due process clause protection rights is read differently. We ask, “Is there a fundamental right? Are there rights that are deeply rooted in tradition and history? Is there a violation of dignity?” To Justice Kennedy’s favorite word?
There are lots of tests simply are not there in Jacobson. I think the outcome’s probably the same, I think under modern decisions like Washington v. Glucksberg and Cruzan and others, a substantive due process claim would probably fail. But let me just give you one caveat. I think the penalty has to be low. If this was a regime that re… That maybe Wendy has thoughts that, that resulted in endless incarceration. I imagine you were put in jail until you submitted to a shot. I think that will be harder to justify. I mean, maybe Wendy has thoughts the fact that you only had a $5 penalty, I think a significant. There’s another case I mentioned, I think it was in North Carolina Supreme Court decision from the late 1800s where person who basically kept in jail for 30 days until they got their shot would be extended indefinitely. That I think will be tougher to justify. In other words, you’re putting a person who’s not vaccinated in a closed environment where they can spread COVID to the prisons not that’s a good idea either, right?
So I think there are actually some, some serious issues of how the mandate’s enforced. I think you should also consider people who have natural immunity. This is the issue that is raised in the Virginia Case. People who might plausibly claim to have natural immunity may have better protections than what gets, you know, the Chinese vaccine, the Sinopharm, right?
So th-there are some preps plays in the joints over how those enforced, right? All laws must be rational if the policy lacks rationality and even courts might be skeptical of it. I hope it doesn’t get to it. I hope no jurisdiction acts a vaccine mandate because it’ll just be held up in court forever. But I don’t think that Jacobson holds, I do think there’s a bit of a myth surrounding the case that, that just will not seem to seem to fade.
[00:12:12] Jeffrey Rosen: Thank you so much for that. Wendy do you agree with Josh that although Jacobsen might allow for low level fines, it would not allow for coerced vaccinations. And then Josh introduces this Virginia Case where Professor Todd Zwicky has said that he already had COVID he has antibodies against it and therefore the George Mason Policy requiring unvaccinated faculty and staff members to wear masks and physically distance themselves is coercive and can’t be considered anything other than an unlawful mandate. There’s no compelling interest in overriding his personal autonomy rights and it’s poorly calibrated to protect public health. What do you think of the contextual claims that Professors Zwicky raises in the Virginia Case?
[00:12:59] Wendy K. Mariner: Well, let me take your first question first and deal with the question of natural immunity second. You might be surprised that I agree with Josh that perhaps that it is that the Jacobson case is not what many people assume it to be, and that particularly people in public health often assume that it provides justification for almost any kind of law governing that has a goal ultimately of governing public health or improving public health. It is a really a case of first impression. It was really perhaps the first case before the United States Supreme Court that actually dealt with mandatory restrictions on an individual’s personal liberty for public health purposes. There have been cases about police power. That was really where we really jurisdictional disputes between the federal and state governments and a few cases involving regulation of businesses, imposing health and safety regulations in places like mining.
But this was really an issue of individual regulating an individual. And I do think that it has been bandied about usually in a string site without much attention to the context. And it may be, I think what Cass Sunstein has called, “A narrow and shallow case,” that it applied to a narrow set of circumstances, and it didn’t have a, of doctrinal underpinnings that could be applied elsewhere. It’s just too general, like almost any case of first impression. That said, I think it does raise questions that are timeless about the scope of state power and the scope of individual liberty. The hard question in these cases that we talk about in class a lot is, “So what would your enforcement mechanism be?”
It, Jacobson must have been a very easy case actually since no one was forced to get vaccinated. And there certainly is an enormous amount of reluctance, both in that, in the population and in the judiciary to forcibly impose medical conditions and, and, you know, shots and drugs on people with some exceptions in psychiatric institutions and often with… Well, I’ll leave that for another day [laughs].
[00:15:21] Jeffrey Rosen: Josh, so we’re talking about a bunch of different constitutional cases, and maybe you can desegregate them for our listeners and tell us what you think about them. You’ve said that the Jacobson case, which said that this Massachusetts could fine the individual for not being vaccinated no longer it would be at the center of the Supreme Court’s considerations. And instead invoked cases like the Cruzan case, which said the people do have a right to refuse unwanted medical treatment and the Glucksberg case, which said that in deciding whether or not there is a right to die, the court will carefully look at history and tradition in evaluating whether there should be new substantive due process rights. Those are rights protected by the Liberty Clause that protects substantive liberties. So, so given all that, how do you think the current Supreme Court would, and should analyze the constitutional claims about various vaccination requirements?
[00:16:17] Josh Blackman: Well, again, I think we have to be very careful to distinguish different categories. If we’re talking about the privilege of attending a school I think there’s going to be more deference because people aren’t required to attend a particular school. Tenured employees may have a different situation because they have a right to teach and they’re being penalized for something that was not in their employment contract may actually be a greater claim for professor than for a student. Professors, you know, we’re kind of stuck at our universities, but if there’s actually a jurisdiction that mandates vaccines, I think those are very vulnerable that you have to get it. You know, they’ll strap you to a gurney and put a needle in your arm. And there’s also sort of a middle area. Look at New York City Mayor de Blasio has instituted a new policy. Unvaccinated people cannot go to restaurants, theaters, gyms, or any other public places.
This is severe. Historically we’ve said people have a right to travel, that is people don’t need paper so to speak, to go from point A to point B and now they very well may. There’s long been a policy of quarantining those who are sick and restricting people, for example, come on a boat or otherwise, but now a person can’t walk across the street to a restaurant if he’s fully masked and un-vaccinated there will probably be constitutional litigation over this policy as well. I, I am skeptical the Mayor of Boston actually compared the sort of policies to, to slave traffickers. I get to show your papers, move from point A to point B. There’s a dark history here. So I, I think this policy might be vulnerable.
[00:17:41] Jeffrey Rosen: Wendy Josh raises the possibility of restrictions on travel at the end of July. President Biden reportedly considered requiring all civilian federal employees to be vaccinated or be forced to submit to regular testing, social distancing, and restrictions on most travel. And Josh also mentioned some restrictions in New York as, as you look at the range of vaccine requirements that states and the federal government are considering. Are there any that you think might come close to the constitutional line?
[00:18:16] Wendy K. Mariner: Well, I think we have to look at what the alternatives are. We are, we have been and continue to be in a very severe epidemic and pandemic around the world. The United States has had 630,000 deaths from COVID. That’s dramatic, that’s remarkable. What are our options? Our options are basically to try and prevent transmission anyway that’s, that is feasible and fair. And our options are essentially vaccination, social distancing, masking, ma-mask wearing, or quarantine. You want to go back to the ancient use of quarantine, which has never been terribly successful except on an island which may be the only alternative to restrict the ability of a person to interact with the public and perhaps get infected and put others at risk. We really do have a problem with with options, if we can’t use the best option that we have, which is vaccination.
[00:19:22] Jeffrey Rosen: Josh would a federal vaccine mandate of any kind be unconstitutional and which constitutional provisions might it violate?
[00:19:30] Josh Blackman: So far, we’ve been talking about state mandates and states have something called the police power, which is this sort of broad brooding omnipresence in the sky. So to speak that they can do a lot of things, sorry, I couldn’t help it. I’m on the podcast with Jeffers and I have to make a Holmes reference. The federal government does not have a general police power. They have a what’s called enumerated powers, only those powers given. If Congress wants to do something, they have to find a specific grant and article on the constitution. Perhaps they might look to the International Foreign Commerce Clause and the Necessary and Proper Clause. I think they’ll be looking in vain. We know from the Obamacare case that mandates are unconventional. They’re not many federal mandates to buy a product. There are no mandates I’m aware of to make regular people get a shot in their arm by virtue of simply existing.
Even though it would prevent the spread of disease from state A to state B, I am not confident this sort of mandate would survive constitutional review. I think it will be very vulnerable. But let’s be frank, you, we don’t have that statute, right? If President Biden wants to actually enact this policy, you would have to rely in general CDC authority to restrict pandemics. And I don’t think these, the, the statute exists could stretch quite that far. This is actually the same law that supports the eviction moratorium, which a majority of the court thinks is on, is illegal. So I think a federal vaccine mandate is a non-starter. Biden said he had asked DOJ for an opinion on one, then he quickly walked that back. So I think we’re, we’re not going to see it.
[00:20:59] Jeffrey Rosen: Wendy, do you agree that a federal vaccine mandate would be a non-starter constitutionally and under existing statutory authority? And then tell us about the statutory authority that does currently exist. On July 26, the office of legal counsel issued an opinion saying that COVID vaccination emergency use authorization status under the Federal Food, Drug, and Cosmetic Act doesn’t prevent public and private entities from imposing vaccine requirements. The legitimacy of that opinion is an issue in the Virginia Case. To what degree does the Emergency Use Authorization act provide authority for public and private entities to impose vaccination requirements?
[00:21:41] Wendy K. Mariner: Well, the, the Emergency Authorization does not impose any requirements as to use. It simply authorizes its sale and distribution. So I don’t think that, that’s terribly but that would not be a basis for requiring anyone to take the vaccine. It simply authorizes its, its, its distribution and it simply does so by authorizing production at the same time that the studies are being carried out. So it’s a faster method, it’s a faster route to getting the vaccine out once it is established as safe and effective, which it has been under that category. The constitutionality of a federal requirement for vaccination, I think would depend greatly on who it imposed on. Certainly the commerce power could authorize some kind of a condition with respect to businesses that could pose a risk of transmission. I think that would be possible.
Posing on individuals I think is on slightly shakier ground, although in the Comstock decision there, there, there was a citation that in cases of epidemics, perhaps we could impose that kind of obligation on, on an individual. So I think it’s, I think it’s an open question. I do think that we do have a tradition of lodging these kinds of requirements at the state level, that does make a mess of things however, as we see today with varying kinds of requirements and resistance or acceptance in different legislatures, in different governor- governor’s offices in different states.
[00:23:13] Jeffrey Rosen: Josh, there are other constitutional complaints at issue in the Virginia Case involving George Mason University, including unconstitutional conditions. Tell us about those and what you think about those arguments.
[00:23:25] Josh Blackman: Sure. And I should note that I attended George Mason about a decade ago and I know Todd Zwicky very well, although I haven’t actually talked to him about this case. There’s a doctrine in constitutional law called unconstitutional conditions. And the idea is you should not have to surrender a constitutional right to get some sort of government benefit. You know, for example, if you want to live in public housing, could you waive your Fourth Amendment rights? That is they could drug test you any time, they could search apartment for contraband, right? If I live in public housing. And the general rule is that’s not a good idea, that, that the government can’t make you surrender your constitutional rights as a condition of some public benefit. And Zwicky argues that he has a constitutional right to avoid these sort of vaccines, given his immunity, his natural immunity, and in light of these facts, the government can’t force him to give up those rights as a condition of his public employment.
It’s a very unique argument and I don’t think I’ve seen it in this exact context before because he’s a public employee. He’s tenured, which is a effectively a binding contract, which we all have as professors. And he’s saying that as a condition of employment, he’s being asked to surrender his constitutional rights. That professors have the rights of bridge all the time. You know, I can’t go up from the classroom and start, you know, projecting child pornography on the board, right? I can’t go for my classroom libeling people, right? Those are not protected activities. It’s a tougher call if there’s something that is protected by the constitution and then my employer says, “You cannot do that.” in terms of my speaking and publishing I suppose a countervailing argument is that there might be students in, in Zwicky’s class who are hesitant to enter the building if they know he’s not vaccinated.
And also Zwicky said, he doesn’t think he can teach effectively with a mask on which impedes the ability to perhaps for him spread. I, I don’t know how this case will shake out. You know, it, it’s, it’s a fairly fast moving issue and who knows by the time this goes to summary judgment the Delta pandemic is subsided and, you know, we-we’ve sort of moved on. It’s also possible Zwicky’s immunity drops at some point in and the case gets mooted out, so to speak. So I don’t know how this one shakes out. I think it’s, it’s, it’s a heavy lift, but I do think he does raise fair points about the rationality of a policy that sort of a one size fits all. You know, one argument he raises the single Johnson&Johnson shot might be less effective than say two shots of Pfizer, right? If all vaccines are treated equally.
You may have a foreign student has a Chinese vaccine, which is not very effective at all. And that’d be… The Chinese vaccine might be less effective than natural immunity. So this sort of one size fits all policy, is not actually consistent with science as people like Wendy actually know, they know science, I don’t know science, but there might be some difficulties, but is it for the courts or the elected branches to make those calls?
[00:26:09] Jeffrey Rosen: Wendy, what do you think about the argument about unconstitutional conditions in the Virginia Case, and then walk us through how you imagine constitutional litigation about the vaccines playing out over the next couple months, including issues involving religious exemptions. In Indiana there was an exemption for those who believe that vaccinations are incompatible with their religious beliefs. This Supreme court is sensitive to claims of religious exemptions. Do you imagine that any of those claims might be successful for vaccine requirements that don’t have religious exemptions?
[00:26:42] Wendy K. Mariner: Well, first to the to the claim about natural immunity. That’s, that’s a very interesting question because it is, it is a question for science and not necessarily one that can be decided by the by the judiciary and the basis of knowledge of constitutional law. It’s not at all clear to me that natural immunity is established permanently once one has had COVID. In fact, there’s a lot of question about that and about fading immunity. So it’s, it’s a question. I think that it would be very hard to base a win on the claim that one need not be when need not be vaccinated because one has already had COVID.
Secondly, the idea that all vaccines are equal, may not last. This is a fast moving pandemic, and there are places in which the Chinese version of the vaccine is not accepted as adequate for entry into a university or a business. So it, again, depends on the reality on the ground. So how, how would, how would that matter? Well, you can, I mean, one of the, one of the problems that we have, I think in this country is that most of the statutory bases for emergency action have been written for short-term emergencies like hurricanes or floods or explosions and things like that. Often giving, giving a governor a 30 day period for you know, for exercising emergency authority.
We really haven’t confronted how to deal with a longstanding pandemic for over 100 years. And we’re in a much better scientific and constitutional position for that. So it means that we really have very, very little in the way of adequate precedent that fit what’s going on now. We have a, a pandemic that has waxed and waned and is waxing again. And we may have a need for re-vaccination of people who have been vaccinated in order to keep to keep the population safe. So th-th-the questions that are confronting us are really quite, I think, new in many respects and relying on the idea that either one individual can refuse, because he thinks he has natural immunity or another individual can refuse because he just doesn’t like, it tends to turn the whole purpose of society on its head. We need to be able to take action that indeed protects the whole population as long as we don’t ultimately harm the individuals that we’re trying to protect.
[00:29:24] Jeffrey Rosen: Josh, tell us your view about the future of religious exemptions and COVID. You wrote a post about Jacobson and Massachusetts based on your Harvard Journal of Law and Public Policy article, the essential Free Exercise Clause. You subsequently blogged that Justice Gorsuch’s reading of Jacobson seemed to track your posts when, when, when he found religious exemptions in the Roman Catholic Diocese of Brooklyn case. So unpack for our listeners, what that debate was about, and then tell us whether you imagine any claims about religious exemptions being successful moving forward.
[00:30:04] Josh Blackman: Well, who’s Jacobson? He was a Swedish minister who lived in Cambridge at the turn of the century. He had actually been vaccinated earlier in his youth and he had an adverse reaction to it. And also Jacobson’s son had a vaccination, apparently who had an adverse reaction as well. There’s basically Wendy correct me. I think he basically got a, a version of cowpox, which was a variant of smallpox, and that’s how it was done. It was basically a different disease that could, could inflict harm to people, perhaps in the aggregate it was worthwhile. During the COVID-19 pandemic governors across the country, cited Jacobson in the various challenges to house of worship restrictions. And a lot of people simply assumed that this was a religious case, he was a minister after all. I’ve gone back, I read the trial record, I read the appellate record or the Supreme Court record, there was no reference whatsoever to the religion clauses. With good reason, they weren’t incorporated yet.
The Free Exercise Clause had no bearing on the case. It was based entirely on the Due Process Clause of the 14th Amendment, as well as the Massachusetts State Constitution. He also had some Takings Clause issues that were rejected out of hand, but it was almost all based in the 14th Amendment. During the COVID pandemic, lots of judges had a, “Aha, we have this case Jacobson, which says that religious claims have to be subjugate to public health.” Wrong, wrong, wrong, wrong, wrong, it had nothing to do with religion. And it was woefully consistent with modern Free Exercise Clause jurisprudence.
Chief Justice Roberts cited Jacobson in South Bay, a very prominent case upholding California’s lockdown measures. And then a few months later, we get to Roman Catholic Diocese and Robert sort of tiptoes away sort of back to saying, “Well, I didn’t really mean Jacobson had much to do with it.” And then Gorsuch had an opinion that was very consistent with what I wrote. And he said, “This is not a case effecting Free Exercise Clause.” So even if you have Cruzan and case like Glucksberg substantive due process, those cases might be weak. But if we exercise clause case is much harder to prevail. Judges cited Jacobson of a case involving the 2nd Amendment, right? You had states say to shut down all gun stores that prevent spread of COVID and it said, “Oh, Jacobson,” but that’s not a case about an enumerated right. Governors cited it for abortion. They said, “We need to stop all forms of certain types of abortions because we have to save surgical supplies,” you know, the modern abortion jurisprudence postdates Jacobson by, you know, eight decades or so.
So these are, these are very contemporary issues of the large body of case law and judges sort of just reached to Jacobson as panacea saying, “Yes, we defer, we defer.” I blame John Roberts in large parts for a lot of things, but I blame him for this. His, his, his citation of Jacobson was, was repeated 100s of times in the country. So look there, we have a lot of case law, the Supreme Court will have to address it at some point. I think a lot of judges just sort of, “What’d you say when you string cite?” They sort of cited Jacobson as string cite and just called it a day. And I think was, was not a good exercise in jurisprudence.
[00:33:01] Jeffrey Rosen: Wendy, can you imagine any challenges to vaccine requirements o-of any kind on, on religion grounds being successful moving forward and looking forward to the next couple of months are there any other vaccine challenges that you imagine being successful under the constitution?
[00:33:17] Wendy K. Mariner: Well, yes. I, I think that is entirely possible what the Supreme Court has done even in the shadow docket, but certainly in the Tannin case and the Cuomo case and in South Bay cases has been to elevate the, the idea of religious free exercise above all other, it seems constitutional protections. And I find that a little disturbing only because the Supreme Court refuses to decide what counts as a religious belief, which is understandable, but that leaves the court in the position of essentially acquiescing to an individual’s perception of religion that can indeed undermine, you know, regulations that help the entire public.
I’m thinking of what the implication of these cases precedent are for all kinds of health and safety regulations from inspections to you know, to protections for workers, all of these kinds of things. These cases have, have essentially shifted the standard of review for religious exceptions to probably all kinds of regulation. And that I think is a far more far more concern than might be a simple exception to a vaccine mandate.
[00:34:38] Jeffrey Rosen: Thank you very much for that. Josh, as you look forward over the next couple of months, this is a fast moving situation, of course, but what, if any challenges to vaccine requirements, do you imagine being successful and, and which constitutional legal provisions do you think they’d be based on?
[00:34:53] Josh Blackman: I think the only institutions that will have constitutional challenges are public universities. And I think they’re probably going to lose, I think the Eastbrook opinion’s probably right. If private employers impose vaccine mandates, they’ll have to deal with the Americans with Disabilities Act. And the, if it’s a state with, the refer of Religious Restoration Act, maybe issues there, but I think those claims are going to probably fall away as well. The federal government that’s imposing a the vaccine mandate may be trickier, maybe some organized labor cases, unions may oppose it, which has nothing to do with the constitution. But again, I think as a condition of employment, it’s harder, right?
The, the policy may, may be a problem. So I, I don’t think we’ll see any sort of one size fits all challenge. I think the most likely case will get actually concerns the eviction moratorium, which will perhaps scale back the CDCs power. And once that power is scaled back, the idea of a national vaccine mandate’s not gonna take off. We may see litigation over the New York City travel passport issue. That one is curious ’cause right to travel has never been clearly defined. I think that actually may have some legs.
[00:35:59] Jeffrey Rosen: Thank you very much for that. Well it’s time for closing arguments in this illuminating discussion. If any of those cases, Josh mentioned materialize, we will podcast on those, but let us close by returning to the Indiana case. Wendy tell We The People listeners whether you believe that the lower courts were correct to hold it Indiana’s requirement that all students, faculty and staff have a COVID vaccine and are fully vaccinated violates the constitution or not.
[00:36:29] Wendy K. Mariner: I, I think it does not. I, I’m not convinced that the, the decision was terribly well-reasoned, but I think the result was correct. And I think that the Seventh Circuit should uphold it perhaps with better writing.
[00:36:44] Jeffrey Rosen: Thank you for that. And Josh, same question to you as you have the last word in this, in this good conversation. Should courts uphold the Indiana vaccine mandate or not, and why?
[00:36:56] Josh Blackman: I think the ulti… The Indiana law passes must have had religious exemptions, had disability exemptions. And I think given those exemptions, it’s hard to challenge under modern doctrine.
[00:37:08] Jeffrey Rosen: Thank you so much Wendy Mariner and Josh Blackman for a civil illuminating and collegial discussion about the hotly contested question of vaccine mandates and the constitution. Wendy, Josh, thank you so much for joining me.
[00:37:24] Josh Blackman: Thanks Jeff.
[00:37:25] Wendy K. Mariner: Thank you.
[00:37:31] Jeffrey Rosen: Today’s show was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Amy Lu, Olivia Gross and Lana Ulrich. Please rate, review and subscribe to We the People on Apple Podcasts and recommend the show to friends, colleagues, or anyone anywhere who is eager for a weekly dose of constitutional education and debate. And always remember, dear We the People friends that the National Constitution Center is a private nonprofit. We rely on the passion, the generosity and the dedication to lifelong learning from people from across the country who are inspired by our nonpartisan mission of constitutional education and debate. You can support the mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support our work, including this podcast at constitutioncenter.org/donate. On behalf of the National Constitution Center, I’m Jeffrey Rosen.
Current constitutional issues related to vaccine mandates
The Covid-19 delta variant’s spread may force federal and state authorities to re-examine public safety policies related to vaccine requirements. Here is a brief review of the constitutional precedents and laws related to mandates at the federal and state levels.
Justice John Marshall Harlan, writing for court’s majority, concluded that states under their general police powers had the ability to enact vaccine laws to protect citizens. Police powers allow a state to pass laws to protect the health, safety, and general welfare of the public. “It is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health,” Harlan wrote.
The second decision, Zucht v. King in 1922, arrived at a similar conclusion. San Antonio, Texas, excluded students from public and private schools who were not vaccinated for smallpox. This included the challenger in the case, Rosalyn Zucht. Her attorneys argued the vaccine policy violated Zucht’s 14th Amendment due process rights. Justice Louis Brandeis wrote in the Court’s decision that “long before this suit was instituted, Jacobson v. Massachusetts, had settled that it is within the police power of a state to provide for compulsory vaccination.”
According to the Congressional Research Service’s most-recent analysis, the general principles in Jacobson and Zucht form the basis for modern vaccine mandate policies, even though the Court’s interpretations of the 14th Amendment have changed since 1922.
In a recent lawsuit, a federal court declined to grant an injunction against a public university’s vaccine mandate. Eight Indiana University students had sued the school over a mandatory vaccine policy that blocked students from registering for class if they were not vaccinated. Under the university policy, students could apply for a medical or religious exemption if they agreed to wear masks and undergo Covid-19 testing. On August 2, 2021, a federal appeals court upheld a lower court ruling in favor of the university, finding there was not enough evidence that the students’ constitutional rights were being violated; the decision may be appealed to the U.S. Supreme Court. Another recent lawsuit filed by a law professor at George Mason University has challenged that school’s vaccine mandate as well.
Related We The People Podcast: Are Vaccine Mandates Constitutional?
However, the broad powers held by states to control vaccine policy can also be used by state governments to block vaccine mandates, in certain situations, at lower government levels and in the private sector. As of August 2, at least 14 states had enacted Covid-19 related laws that barred employer vaccine mandates, school vaccine mandates, or vaccine passports.
At a federal level, the vaccine mandate question is more complicated. With few exceptions, the CRS says there are no laws that allow the federal government to issue a vaccine mandate to the general population. These exceptions include requiring proof of vaccination for immigrants requesting permanent resident status and vaccine mandates for military service members—allowing for certain exemptions. Recently, President Joe Biden ordered federal employees and contractors to attest to getting vaccinated or undergo weekly testing and other safety protocols.
According to the CRS, several federal vaccine mandate actions are theoretically possible. The Executive Branch could cite Section 361 of the Public Health Service Act (or PHSA), which allows the Department of Health and Human Services or the Centers for Disease Control and Prevention (CDC) to make necessary measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”
Under the Constitution’s Spending Clause, Congress could provide financial incentives for states to enact mandates. It could also regulate vaccine requirements related to interstate travel under the Commerce Clause. But any federal actions to enforce or incentivize vaccine mandates may face legal challenges based on the 10th Amendment’s prohibition on commandeering or forcing states to use their own resources to carry out federal policies.
In addition, several federal laws allow for vaccine exemptions for employees based on religious beliefs (under Title VII of the Civil Rights Act of 1964) and disability status (under Title 1 of the Americans with Disabilities Act). The U.S. Equal Employment Opportunity Commission confirmed these exemptions in May 2021. “Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations,” the commission said in a statement.
The allowance of vaccine exemptions based on religious beliefs, in particular, will remain an important question as the debate grows over vaccine mandates at the federal and state levels, as well as in the private sector. As of May 2021, 44 states and the District of Columbia had laws that allowed students to claim a religious exemption to immunizations, while 14 states allowed for philosophical exemptions.
In the Indiana University case, state attorney general Todd Rokita protested the school’s initial policy, which required proof of vaccination. Rokita said the policy conflicted with a new state law that now bars vaccine passports in the state. The university then changed its rules to allow students to attest to their vaccine status online without presenting proof.
To be sure, there will be more controversy over vaccine policies, especially as they apply to schools and businesses as the Covid-19 situation remains unsettled.
VACCINE MANDATES ARE CONSTITUTIONAL; RELIGIOUS EXEMPTIONS ARE UNNECESSARY AND HARMFUL
The Spirit of 1776 was as much about science as it was about freedom. George Washington required the entire Continental Army to get inoculated against smallpox—the first army-wide vaccination in history. Mortality dropped from 30% to 1%. Mandatory vaccinations just might have won America its freedom. From that auspicious beginning, Americans have let vaccine science protect our soldiers in the military, our students in school, our healthcare workers on the front lines—everyone.
Vaccine mandates are undoubtedly constitutional. The Supreme Court explained back in 1905 that freedom can be limited, especially when wielded to harm others’ rights: “The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint…”
During WWII, the court specifically said that religious freedom is no excuse to shun vaccines: “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Even the late, uber-conservative Justice Antonin Scalia singled out religious exemption from “compulsory vaccination laws” as not required by the First Amendment. Most state courts have independently reached the same conclusion.
In hundreds of cases across more than a century, the law is clear: vaccine mandates are constitutional and religious exemptions are not constitutionally required.
People are fond of saying that freedom isn’t free, but nor is it absolute. And thinking in constitutional absolutes is killing Americans. Literally. The claim that the Second Amendment protects a sacred and unlimited right is a legal narrative recently invented, deliberately advanced, and grossly manipulated by the NRA—and it’s killing Americans. The Supreme Court’s political manipulation of the constitutional right has allowed guns to become as much of a public health crisis as Covid and has thwarted sensible gun regulation. This Supreme Court is considering another Second Amendment case this term (oral argument is on Nov. 3) that will likely entrench the absolutist misunderstanding of the right further.
There is currently a crusade, much like the NRA’s, to weaponize the religious freedom right guaranteed by the First Amendment. To make the right to act on a religious belief as absolute as the right to believe. This has never been true under our Constitution.
Drawing these lines is not difficult, though in this case it’s a matter of life and death. You are free to believe whatever you want. But your right to believe does not include the right to risk the lives, health, and safety of anyone else. You might believe you can safely operate a car while drunk; but if you get behind the wheel we punish that reckless behavior. Vaccine refusal is reckless in the same way drunk driving is. Whether the belief is religious or not doesn’t change the calculus.
If you need an easier example, just think of ritual human sacrifice. Is murder permitted if the murderer believes his god commands it? If religion were a license to violate another’s rights, that would not be religious freedom, but religious privilege—your right to believe would trump my rights. This version of religious freedom is inherently unequal.
No major religion has a theological objection to vaccines. In one recent NPR story, a pastor admits that there’s no religious objection to vaccines, but also confesses that he’ll sign off on religious exemptions, not because of theology, but because a vaccine mandate “just seems a little harsh right now.” He may be well-meaning, but rarely do we get such a clear example of the rampant abuse of religious freedom. He admits religion isn’t the issue, but is using religious privilege to recklessly risk other people’s lives. As Chrissy Stroop recently pointed out here on RD, “sometimes religion is the problem.”
This Supreme Court hasn’t yet ruled on religious exemptions to mandatory vaccinations in the Covid-era, but it’s almost certain that the five Covid justices will side with Christian privilege. They’ve already weaponized religious freedom against public health orders, among other things. I’d bet on a decision in favor of mandatory religious exemptions from vaccine mandates whenever the shadow docket presents an opportunity for the court to decide such a case.
The difference between the decades- and even century-old Supreme Court cases mandating vaccines and today’s, isn’t just the recently weaponized religious freedom, but also because “in most instances, communities had achieved the luxury of herd immunity,” as Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation (where, full disclosure, I’m the Director of Strategic Response) put it recently. Once the hard work of getting to herd immunity is done, a religious exemption might not seem like a big deal. But we have to get there first.
“We don’t have that luxury when it comes to Covid-19,” Gaylor told me, “and even before this pandemic, we’ve seen the health and fiscal cost of vaccine exemptions, especially religious exemptions, for decades in this country.” Gaylor is right: in 2015 alone, unvaccinated people cost the country $7 billion. The only exception to this mandate should be medical—those people who are, for instance, immuno-compromised. Herd immunity protects these vulnerable people.
Herd immunity for Covid-19 is far away because a lethal virus was politicized by Christian Nationalists. Professors Andrew Whitehead and Sam Perry, leading scholars on Christian Nationalism, have so many receipts. They’re not alone.
Today’s anti-vaxxers, be they religious or political, are accustomed (and inured) to the benefits of modern medicine. They want life to get back to normal but fail to realize that that normal was achieved with mandatory vaccination and no religious exemptions. If we’re to be free of the pandemic that’s killed 710,000 of our friends, brothers, sisters, and parents—more Americans than all our wars combined—we need to recover that spirit of 1776. Mandatory vaccination now. Religious exemptions be damned.
The Biden Administration’s proposed vaccine mandate on the federal level is almost guaranteed to be unconstitutional
In the early 1900s, we created a smallpox vaccine that prevented both transmission and infection. The Board of Health in the city of Cambridge, Mass., adopted a regulation forcing free vaccinations of its residents. If they did not want to take the vaccine, they had to pay a one-time fine of $5 (roughly $120 today). A man challenged the regulation, in part because he had bad experiences with prior vaccines.
While his case was pending, he continued traveling, public speaking, and living life normally. At the end of the day, the court ruled against him, and he had to pay the $5 fine. Jacobson v. Massachusetts, 197 U.S. 11 (1905).
The facts under Jacobson are like what we have with COVID because we are in a pandemic, and we have a “vaccine” that various levels of government are trying to mandate.
However, today’s vaccine mandates on the state level go much further than Jacobson. For starters, we are seeing restrictions on conducting everyday life like travel, eating at restaurants, working, and shopping unless vaccinated. Second, the fine for not taking the vaccine is not a relatively inexpensive, one-time charge. Rather it is invasive and expensive testing that is ongoing.
Now that the courts are beginning to hear challenges to state vaccine mandates, we can hope that they will recognize the differences between a one-time fine and being ostracized from society. One such case is based in Oregon and is being litigated in part by the Freedom Foundation. In Williams v. Brown (Case Number 6:2021cv01332), the challengers are either working in the medical field or in state government, and they all have natural immunity and antibodies. More plaintiffs are joining the action every day. They are challenging the state vaccine mandate because there is no natural immunity exemption.
The Biden Administration’s proposed vaccine mandate on the federal level is almost guaranteed to be unconstitutional.
First, the separation of powers prevents the executive branch from creating legislation. Here, Congress has not passed any legislation mandating vaccines. The Biden Administration is using a work-around by using the Occupational Safety and Health Administration (OSHA) by telling OSHA to write the rule that any business with at least 100 workers must force employees to get vaccinated or produce weekly test results showing they are virus free. If a company refuses, the fines reach up to $13,600 per violation. OSHA will attempt to use its “emergency temporary standard” (ETS) to fast-track the rulemaking process. Most of OSHA’s emergency rules have been struck down by the court. Of the 10 total rules under ETS ever, courts overturned four and partially blocked the fifth.
Second, even if the OSHA rule survives legal challenges (a BIG “IF”), we have a commerce clause problem. The commerce clause states that states have general police powers for health and safety, not the federal government. Recently, the Supreme Court ruled that health insurance mandates are NOT covered under the commerce clause. A vaccine requirement is arguably further removed than a health insurance mandate, and it affects employees.
Third, the government is trying to force businesses to do its dirty work. It is unconstitutional to make businesses force mandates on individuals that the government can’t do itself.
So, are vaccine mandates constitutional? It depends on who is telling you to take them, and under what authority. Will businesses go ahead and force their employees to take the vaccine anyway, and before the court hears OSHA and Jacobson challenges? Now, that is a different question, altogether.
Federal Vaccine Mandates Pose a Constitutional Triple Threat
Although much of the rhetoric surrounding the new federal vaccine mandates focuses on individual rights—“how dare they force me to inject something into my body?”—the government can generally regulate its own employees, or those it funds with Medicaid/Medicare dollars, so the strongest legally cognizable claims there are for people with valid religious or medical objections. And the latter has to include natural immunity, which provides more robust and durable protection against COVID-19 than any vaccine.
But the more systemic problem comes with the mandate imposed on businesses, requiring all those that employ more than 99 people to have their employees vaccinated. That private‐sector mandate, which potentially affects more than 100 million people, presents a constitutional triple threat.
First, there’s a separation‐of‐powers issue in that this sweeping new regulation is being imposed by presidential diktat, with related claims about the proper scope of OSHA’s statutory authority and whether Congress can even delegate such broad power to the executive branch. There’s also a further related administrative‐law claim regarding President Biden or OSHA acting in an “arbitrary and capricious” manner given the serious questions about whether the mandate is drawn with enough care given the science regarding viral spread and harm, the threat to the vaccinated population from the unvaccinated, whether the testing‐regime alternative does anything other than create burdens in an attempt to coerce vaccination, the failure to consider natural immunity (again), and other policy details.
Second, even if the executive branch is permissibly interpreting the relevant federal laws, these kinds of impositions are hardly a regulation of interstate commerce (or the use of any other constitutionally enumerated power): states have general police powers to regulate for public health and safety, but the feds don’t. A vaccine mandate as a condition of running a business is even further removed from commerce than a mandate to buy health insurance, which the Supreme Court held wasn’t justified by the Commerce Clause. And remember that the mandate is being forced even on businesses that operate wholly in‐state, and on employees as employees, not as travelers or users of the channels of interstate commerce.
Third, forcing private businesses to do the government’s dirty work isn’t a “proper” means of effectuating the goal of limiting the pandemic. Again as in the Court’s ruling in the first Obamacare lawsuit, which found no independent power to compel noncommercial intrastate activity as part of a larger regulatory scheme — what Randy Barnett eloquently called “commandeering the people” — the federal government can’t now commandeer businesses to impose mandates on individuals that it can’t impose directly.
To be clear, the above constitutional‐structure issues with the new federal mandates are generally different than the issues that we’ve already seen litigated (and will see even more) with state, municipal, and private vaccine mandates. As a matter of law even more than as a matter of philosophy or policy, it matters what level of government, or more broadly what kind of actor, infringes on individual liberty, in what way, and for what reason. Accordingly, the Biden administration is about to face a tsunami of legal filings.
To be further clear, like my colleague Jeff Singer, I’m pro‐vaccine but anti‐mandate, which may make me unpopular coming and going, but so be it.
While there is legislative precedent for vaccine mandates, other strategies could help U.S. states achieve widespread vaccination for COVID-19.
AN INTERVIEW WITH JOANNE ROSEN
The legal precedent for mandatory vaccinations dates back to a 1905 Supreme Court case after a smallpox outbreak in Massachusetts.
In this Q&A adapted from the November 17 episode of the Public Health On Call podcast, legal and public health expert Joanne Rosen talks with Stephanie Desmon about this precedent as well as other strategies states could consider to achieve widespread vaccination for COVID-19.
ONCE A COVID VACCINE OR VACCINES ARE MADE AVAILABLE, COULD STATES MANDATE THAT PEOPLE GET THEM?
The short answer is yes. States have the legal and constitutional authority to require that the people who live in that state be vaccinated, or to introduce a vaccine mandate.
The authority for the state being able to compel vaccination—the affirmation of that authority—goes all the way back to a U.S. Supreme Court case in 1905 called Jacobson v. Massachusetts. That case arose in the midst of an outbreak of smallpox in Cambridge, Massachusetts, in 1902. Cambridge introduced an ordinance requiring all adults be vaccinated or revaccinated against smallpox. If they didn’t [get vaccinated], they would have to pay a fine of $5.
Jacobson was a resident of Cambridge who, for a number of reasons, objected to the vaccination mandate and brought a lawsuit against Massachusetts for the mandate. He raised a number of arguments, including one that his constitutionally protected liberty interests were being infringed by this mandate.
In that case, the Supreme Court—and —said that states have under their police powers, which is under the Constitution, the authority to enact reasonable regulations as necessary to protect public health, public safety, and the common good. Vaccination mandates constitute exactly that kind of permissible state action to protect the public’s health. Even though it’s 115 years old, this continues to be the benchmark case on the state’s power to mandate vaccination.
In response to the argument about this individual liberty interest, the court said that sometimes individual interests might have to yield to state laws that endeavour to protect the health of everybody—the “common good.” The court said: “The rights of the individual may at times, under the pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations as the safety of the general public may demand.”
So, yes: Once COVID vaccines are available, states could elect to require that people who live within that state be vaccinated.
HOW MIGHT STATES ENFORCE VACCINATION OF ADULTS?
By and large, our immunization schedule begins as children, and we have to show proof of vaccination to go to school. It is a more complicated administrative manner to have a vaccine mandate that applies to adults because there isn’t a point of common intersection with the state or with some agency of the state the way we have with children. I don’t have a clear idea of this, but that would be something that states would have to work into a mandate. A requirement that people be vaccinated is only as effective as the way of ensuring that they are.
That also raises issues that the vaccine has to be made available without charge or in a way that allows people to get coverage for it if it’s not covered by their insurance. Again—how are we able to keep track?
The other advantage that school-based proof of vaccination offers is for people who have some medical reason to not be vaccinated. All vaccine mandates include a medical exemption for people whose health would be imperiled because of an allergy to something in the vaccine or because they are immunocompromised or any other reason. When you go to school and show your proof-of-vaccination certificate or show that you’ve been exempted and you’re not vaccinated, it means that public health offices have a record of who is and who isn’t vaccinated. In the event of an outbreak of one of these vaccine-preventable diseases, we can identify and isolate the people who haven’t been vaccinated and who are obviously at higher risk for being infected.
THE GOAL OF A VACCINATION CAMPAIGN IS TO HAVE AS MANY PEOPLE AS POSSIBLE VACCINATED. THE EXEMPTIONS THAT YOU SPOKE ABOUT WOULD KEEP A NUMBER OF PEOPLE FROM BECOMING VACCINATED. THIS WAS AN ISSUE WITH MEASLES IN RECENT YEARS—THERE WERE TOO MANY EXEMPTIONS AND THAT’S WHAT CAUSED OUTBREAKS. IS THAT SOMETHING WE MIGHT BE UP AGAINST WITH COVID-19?
Yes, absolutely. The measles outbreak in New York was about a year or two ago and, in California, it was traced to Disney World in 2014 or 2015.
The reasons for these outbreaks were religious exemptions in New York and personal belief exemptions in California. The legislators of California and New York revoked nonmedical exemptions as a result so that they could ensure higher rates of people immunized against measles. And, guess what? The rate of measles immunizations did go up when those exemptions were removed.
One of the reasons that nonmedical exemptions were introduced in the first place was to try to respond to and prevent vaccine-related backlash. There’s a very strong culture in this country and others of personal autonomy and not wanting the government to force you to do something or tell you what to do. People wanted to be able to make their own decisions about the risks they’re willing to take,. . The introduction of these exemptions, in part, was kind of like a safety valve to let some of the pressure out of the system so that people could feel that they had some choice.
Although it seems counterintuitive, providing some opt-out mechanism in fact can protect the overall integrity and legitimacy of the vaccine regime and public health. Yes, the goal of public health is to ensure that as many people as possible are vaccinated to prevent further transmission of disease. This leaves the question of “How best do we achieve that goal?” A vaccine mandate looks like it’s the most straightforward way to do it. But, if we have a lot of backlash and resistance to it, how do we then bring those folks onside?
One approach might be to start with a strong recommendation and education campaign. Physicians and health care providers can be part of this effort to educate people about the safety of vaccines. A particular issue that we may face with a COVID-19 vaccine that does arise with other vaccines, but not to the same degree, are questions about [safety] because it’s brand new. Measles, mumps, rubella, polio, and smallpox vaccines have been around for decades, if not even longer. They are regarded as safe and we have decades of data. But COVID-19 vaccines are brand new, so there will probably be more concerns—even among people who are fully vaccinated against other diseases and who have vaccinated their children.
One approach, perhaps, to start is strong recommendation, and being transparent—as drug companies are doing their best to do—about what they know about safety. Then, once the vaccines are available, states can make it as easy as possible to get vaccinated. Even in the absence of a mandate, when you’re vaccinated, there are public records kept and they can see what percentage of residents have voluntarily been vaccinated. If the percentage is high enough to ensure that the whole community is protected, there wouldn’t be a need for a mandate.
CAN PRIVATE EMPLOYERS MANDATE A VACCINE?
They can and they have. It’s very common in particular sectors. An employer has to have a “reasonable basis.” If you worked in retail, I’m not sure a corporate entity could require that. They may want you to and recommend it, but it wouldn’t be reasonably related to the requirements of their job.
But in sectors in which the employees are themselves at greater risk of contracting vaccine-preventable illnesses or who work with populations that are especially vulnerable if they do get sick, like hospital workers, health care workers, and people who work in [long-term care] facilities, employers have required that their staff be vaccinated against the flu each year.
Another thing that states could do, short of a requirement across the board that everybody be vaccinated, is they could begin with a mandate that focuses on those sectors—people who are themselves at greater risk or who work in proximity with vulnerable populations. We don’t want the employees themselves getting sick and being a bridge, or “vector,” to infecting others who are vulnerable. People may object, but some more targeted form of vaccine mandate may make sense and also be possible.
What Does The Law Actually Say About Vaccine Mandates?
Law Professor Explains What’s Currently Allowed And How Those Laws Might Change
Legislatures in some states, including Wisconsin, are seeking legal protections for people who aren’t vaccinated in the form of anti-discrimination laws.
But those against such measures say that choosing not to get a vaccine is a personal choice and shouldn’t be a protected status in the same way as race, gender and religion.
James Hodge, a professor of law at the Sandra Day O’Connor College of Law and director of the Center for Public Health Law and Policy at Arizona State University, says legislatures ultimately have to make that call, though the decision is clear to him: those who are unvaccinated should not be made a protected class.
“You’re only going to have preventable deaths and morbidity related to it,” he said in an interview with Rob Ferrett on WPR’s “Central Time.” “It’s a horrendous outcome, and it’s totally due to that level of protection for persons who just don’t want to have to take the vaccine.”
As Republicans push for such protections for the unvaccinated, Hodge clears up what the law says regarding vaccine mandates.
This interview has been edited for brevity and clarity.
Rob Ferrett: From a legal standpoint, do we have a lot of precedent for these kinds of vaccination restrictions and laws restricting them?
James Hodge: We’ve got dozens of years of precedent. There’s a lot of cases and a lot of litigation around vaccination policies leading up to COVID-19 and will continue to be throughout the remainder of the pandemic.
And what those actually go on to say is that we can and will, under circumstances, require vaccination among specific persons and set specific limits on who can do what based on whether they’re vaccinated.
RF: It seems like a lot of the questions now center around whether institutions can set their own vaccination requirements. What does case law tell us about whether they can do that?
JH: There are specific entities that can set vaccination mandates in the U.S. that will have strong legal support for doing so.
An example is a hospital, in relation to what and how they may actually have to require or at least expect their employees to be vaccinated prior to being engaged with patients. Federal standards all but require that to provide a safe workplace.
Now, contrast that with a retail enterprise that might set a vaccine mandate just to make sure that their employees and customers don’t potentially spread COVID-19 within that specific setting. It’s a little different environment, as is a cruise ship, as is an airplane, as is a train.
That’s why we have different mandates and different requirements around vaccines that start to look very dissimilar. But there are different risks in each of those environments. And the vaccine policies that have been built up over time reflect those key differences.
RF: Now, let’s look at the government itself. To what extent can the government mandate vaccines?
JH: Well, this is such an important point. Let’s make a critical distinction.
Can government forcibly require you to get vaccinated in the U.S.?
The reality is, legally, no, you can’t be forced to take a vaccine. You’re not going to be physically restrained and given a vaccine by any legitimate public health authority in the U.S. at the federal, state, tribal and local levels.
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But that’s not the same as a vaccine mandate.
A vaccine mandate means we’re setting a condition on you returning to society or participating in a particular activity. And that condition is you’re vaccinated.
States are setting vaccine mandates and private employers are doing the same because they can, legally. That’s very distinct from a compelled vaccine.So you want to return to work. You want to go to the University of Wisconsin-Madison. You want to attend your school (if you’re eligible for a vaccine). States are setting vaccine mandates and private employers are doing the same because they can, legally. That’s very distinct from a compelled vaccine.
Now, how far can we go with that? Very far. The U.S. Supreme Court has even affirmed that we can set vaccine mandates at the state or local level. So right now, we have Supreme Court precedents allowing that to occur.
RF: Say I’m a business owner in a state where the state government bans discrimination based on vaccine status. But I think that vaccines are necessary to protect people’s health. If I challenge that in court, how likely is it that I’m going to be successful?
JH: The claim is, I’m an employer trying to operate a safe workplace for myself, for my employees, for my customers. And I can’t in some ways discriminate against persons who are unvaccinated. We’ve got state laws that say that right now.
But your ability to set other requirements may be part of what we’re anticipating.
Maybe you can’t keep unvaccinated people out of your business, but maybe you can require them to wear masks by requiring everybody to wear masks. You can create social distancing in your restaurant. It’s somewhat returning to some of those same norms we saw in the harshest parts of the pandemic.
We expect we’ll see litigation around what and how far employers go. It’s about to come to courthouses near you.
RF: Sometimes vaccination requirements will allow for religious exemption. Can you talk about that?
JH: Right now, most states would recognize some religious exemptions to a lot of different vaccines. Not every state, though — big ones like California and New York don’t any longer because of measles outbreaks there.
But here’s what’s neat about those specific exceptions: They’re not grounded in U.S. Supreme Court approval. The U.S. Supreme Court has never affirmatively said you have a First Amendment free exercise right to reject or accept vaccine mandates from a constitutional perspective.
The Supreme Court may be poised to change that. We think there may be a case before the court in the near future where the court has to actually issue a statement, and it may say you now have a recognized First Amendment free exercise interest to religiously object to specific vaccine mandates.
Now, that will get interesting very fast, because it would really make it difficult to implement a wider swath of vaccine mandates across the board.
RF: HIPAA, which stands for the Health Insurance Portability and Accountability Act, includes some privacy measures about when your health data is shared. When I walk into a store and someone asks if I’m vaccinated, is that violating my rights?
JH: Everybody thinks it feels like one. And they think the HIPAA privacy rule, which we’re all referring to here, certainly would stop that, it doesn’t remotely stop that, and it doesn’t protect you under that circumstance.
The privacy rule is about what a hospital has to do to protect your privacy — not what a store clerk has to do or what your neighbor can’t ask you or what you can’t disclose on Facebook or otherwise.
So, yeah, people can ask you about it. You just don’t have to respond if you don’t want to.
Covid-19 Lockdowns Violate the US Constitution
The extensive and continued Covid-19 restrictions on human activity throughout the United States over the past year is not only contrary to an honest examination of public health data and economic impact, but it also violates our freedoms outlined in the US Constitution. This is a vital issue that has been almost entirely ignored by the media.
During a December 4, 2020 virtual event of the Bastiat Society of Washington, DC, attorneys Robert Barnes of Barnes Law LLP and Patrick Wright of the Mackinac Center for Public Policy spoke on the heavy use of government emergency decrees in responding to the Covid-19 pandemic. Mr. Barnes made the case that the ongoing emergency decrees imposed on Americans are both unprecedented in American history and a violation of our constitutional rights. Mr. Wright focused more specifically on the current court challenges to various state emergency decrees, most notably those in Michigan imposed by Democratic Governor Gretchen Whitmer. Mr. Wright’s court updates will be covered in a subsequent article.
Mr. Barnes provided the following historical references in making his case against the imposition of emergency public health lockdowns:
America’s Founders saw no need for emergency exceptions to personal liberty. In the 12 years from 1775, when American colonists began contemplating a declaration of independence from Britain with a bill of rights, until 1787 when the new Constitution of the United States was signed, the 13 British colonies turned American states suffered no less than seven epidemics. These epidemics, comprised of smallpox and influenza, had mortality rates as high as thirty percent — the highest in American history.
Despite the devastating impact of these epidemics during the early years of the new American republic when the U.S. Constitution and the Bill of Rights were being deliberated and debated, no one ever proposed or suggested that public health exceptions or any kind of emergency exceptions be included. Furthermore, during the 19th and 20th centuries when the United States suffered through additional deadly epidemics (including the widespread Spanish Flu pandemic of 1918-1920), no public officials ever proposed that Americans’ constitutional rights be suspended, even temporarily, for public health reasons.
The historical norm of noninterference in American constitutional rights vanished over the past year after the first Covid-19 cases and deaths were reported in the United States in March 2020. By late April 2020, 43 of 50 states had issued stay-at-home orders and the closing of schools and “nonessential” businesses. While most stay-at-home orders were lifted within a month or two, the closing or severe in-person restrictions on schools and businesses arbitrarily considered to be “nonessential” has continued in many states. These lockdown orders are not only in violation of the US Constitution, but also of state constitutions that typically allow for short-term emergency decrees by governors of between 14 days to 60 days.
So, if these lockdown orders are unconstitutional, why were they imposed and how were they justified? As Mr. Barnes explained, government officials and courts across the United States have been using long discredited legal precedent as the basis for justifying lockdowns, particularly the infamous 1905 US Supreme Court decision of Jacobson v. Massachusetts. The Jacobson decision served as the foundation for two other notorious court decisions, the Buck v. Bell decision of 1927 and the Korematsu v. United States decision of 1944. Mr. Barnes refers to these three US Supreme Court decisions as the “Trilogy of Infamy,” because they unjustly violated the constitutional rights of American citizens.
- The Jacobson v. Massachusetts decision of 1905 concerned a Massachusetts state resident, Henning Jacobson, who sued his state for violating his 14th Amendment rights by prosecuting him for refusing to receive a smallpox vaccination. Jacobson stated that both he and his son had bad reactions to earlier vaccinations. The US Supreme Court ruled against Jacobson, because it considered the state’s vaccination order to be reasonable for the protection of the state’s public health. The court’s decision resulted in a national backlash with an anti-vaccination movement and the founding of the Anti-Vaccination League of America three years later. Nonetheless, this case has provided the precedent for justifying Covid-19 executive orders over the past year despite not being cited as a precedent in any other public health cases for almost 100 years.
- The Buck v. Bell decision of 1927 involved a lawsuit by a woman, Carrie Buck, and her guardian against John H. Bell, superintendent of the Virginia State Colony for Epileptics and Feebleminded, to prevent her from being forcibly sterilized by the state for being diagnosed as intellectually disabled. The state was empowered with this sterilization authority under a 1924 Virginia statute. The US Supreme Court ruled against Buck and upheld the Virginia statute. Virginia eventually repealed this sterilization law in 1974. Legal scholars have long commented that the Buck v. Bell case is one of the worst Supreme Court decisions ever rendered as a gross infringement on a person’s constitutional rights.
- Last but not least, the Korematsu v. United States decision of 1944. This case involved a Japanese-American citizen, Fred Korematsu, who refused to comply with President Franklin Roosevelt’s 1942 executive order directing the forced relocation of Japanese Americans living in certain areas into internment camps during World War II. Korematsu was arrested and jailed for refusing to comply with the order. Korematsu challenged his conviction in court by claiming that it was a violation of his constitutional rights under the 5th Amendment. The US Supreme Court ruled against Korematsu, because it held that Roosevelt’s order was valid in order to protect the US military against the dangers of espionage and sabotage by ethnic Japanese living in the United States. This decision has also been widely criticized in legal circles and Korematsu’s conviction was ultimately overturned in 1983 by a US district court.
Despite the above three cases being widely regarded as wrongly decided, unconstitutional, and long discarded legal precedents of the past, the Jacobson decision has been resurrected as a justification for current state governments to impose unprecedented control over human activity since the Covid-19 pandemic hit the United States in March 2020. In fact, over the past year, various courts have referenced the Jacobson decision to support the extensive and prolonged use of emergency orders by government executives. Both the Buck and Korematsu cases illustrate the dangerous path that courts have been willing to take to justify government emergency actions.
To reinforce the point about the dangers of government emergency orders, Mr. Barnes also referenced the constitution of the now-defunct Weimar Republic in Germany. During its existence from 1919 to 1933, the Weimar Republic was governed by the Weimar constitution. At the time of its inception, it was praised as a great new constitution establishing a representative democracy with a bill of rights. However, the Weimar constitution had a fatal flaw: it provided an exception for the president to issue orders without parliament’s approval in times of emergency. Since the Weimar constitution did not define an emergency, it eventually led to abuse of power and the Nazi Party asserting dictatorial control over Germany in 1933 on the basis of national emergency.
The heavy-handed use of government executive emergency orders issued over the course of the prior 12 months should give all Americans cause for concern about the protection of our personal liberties and constitutional rights. Americans need to be better informed about not only the economic consequences of government public health lockdowns, but also about the recent and unprecedented infringement on our personal liberties as decreed in the US Constitution.
Yes, All of the Coronavirus Closures and Lockdowns Are Legal
The right and necessary thing to do.
Fox News contributor Andrew Napolitano, a former judge, recently penned an article with the provocative title “Coronavirus fear lets government assault our freedom in violation of Constitution.”
Although Napolitano is right to be concerned, President Donald Trump and other federal, state, and local officials appear to be acting within the bounds of the Constitution in responding to the severe threat posed by spread of the new coronavirus disease, which health officials call COVID-19.
Napolitano first quotes from the Supreme Court’s 1866 opinion in Ex parte Milligan (“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.”).
Then he accuses government officials—federal, state, and local—of “totalitarian impulses” and argues that “no matter the state of difficulties—whether war or pestilence—the Constitution protects our natural rights, and its provisions are to be upheld when they pinch, as well as when they comfort.”
Citing various constitutional provisions that protect individual liberty, Napolitano ends his article by asking: “If liberty can be taken away in times of crisis, then is it really liberty; or is it just a license, via a temporary government permission slip, subject to the whims of politicians in power?”
In that same vein, Benjamin Franklin once famously said, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”
Although some have argued that Franklin was actually supporting the right of the government to act to protect the collective security of Americans, the quote clearly has a different connotation to modern ears.
Napolitano is certainly correct that during stressful times, such as we are experiencing now, it is vitally important that we adhere to the “supreme law of the land”; namely, the Constitution.
He is also correct that a few local officials may be infringing on our constitutional rights through some of the measures they have announced. But if that’s so, it’s only a small handful.
Let’s start with the basics.
As Supreme Court Justice Robert Jackson trenchantly noted in 1949 in his dissenting opinion in Terminiello v. Chicago, the Constitution is not a “suicide pact.”
In the Federalist Papers, Alexander Hamilton cited the need for an energetic executive who could act with “decision, activity, … and dispatch.” Those are the very qualities needed in a time of crisis, and the Constitution vests the president with many of the powers he needs to do just that.
The Constitution provides, among other things, that the president shall be the commander in chief of the military and of the National Guard, and has the duty to “take care that the laws be faithfully executed.”
The Constitution also vests Congress with the power to “regulate commerce with foreign nations, and among the several states.”
Pursuant to these authorities, Congress has passed several laws that Trump is using in a valiant effort to stop the spread of this disease.
Trump has invoked the Stafford Act, enabling him to tap into a $50 billion emergency fund for disaster relief. He has invoked the Public Health Service Act, enabling the government “to make and enforce such regulations as … are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or … from one state … into any other state.”
The president also has invoked the Defense Production Act, which will enable the president to direct private industry to allocate raw materials and prioritize the production of medical supplies, such as protective gear, ventilators, and other much-needed equipment and to direct the military to tap into its strategic reserves to accomplish these goals.
These authorities have been used in other, less dire circumstances. For example, in 2000, President Bill Clinton invoked the Stafford Act to respond to an outbreak of the West Nile virus in New York and New Jersey, and in 2019, Trump invoked that act to respond to flooding in Nebraska and Iowa.
For decades, federal health inspectors have relied upon the Public Health Service Act to inspect people, animals, plants, goods, and cargo entering our country.
The 10th Amendment reserves to the states broad police power to regulate behavior and enforce order within their territory in order to protect the health, safety, and general welfare of their inhabitants.
Significantly, the Supreme Court has held that states can invoke such authority—within reason—to respond to a health crisis.
In response to an outbreak of smallpox more than a century ago, the Massachusetts Legislature passed a mandatory vaccination law for adults, imposing hefty fines and potential imprisonment for those who refused.
Proclaiming the law to be an invasion of his liberty, Henning Jacobson, a pastor and community leader, refused to be vaccinated, was prosecuted and fined, and subsequently filed a lawsuit challenging the constitutionality of this edict.
Writing for the 7-2 majority in Jacobson v. Massachusetts (1905), Justice John Marshall Harlan rejected Jacobson’s argument, upholding the state’s right to vaccinate Jacobson against his will.
Citing precedent in which the court had upheld the authority of states “to enact quarantine laws and health laws of every description,” Harlan wrote that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”
Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
Adding that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” the court held that in response to a potential epidemic of a life-threatening disease, a state can subject its inhabitants “to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
Just a few years later, in 1918, in Arver v. United States (better known as the Selective Draft Law Cases), Chief Justice Edward White, writing for a unanimous Supreme Court, upheld the constitutionality of the Selective Service Act, which imposed compulsory military service for adult males to address an “existing emergency”—the shortage of military personnel needed to fight the “war then and now flagrant.”
The court rejected the challenge to the law, even though conscription clearly had a dramatic effect on the liberty of those who were marched off to war against their will, many of whom ultimately died on the field of battle from wounds they suffered or from diseases to which they were subjected.
So, when governors, using the police power under their respective state constitutions, restrict large public gatherings, enact quarantines, and take other prophylactic measures to suppress the transmission of the virus, they are not, under the circumstances, acting to satisfy their “totalitarian impulses,” but rather to defeat a public health crisis that is, unfortunately, very real.
Napolitano is right to highlight the importance of adhering to the Constitution, which has often been sorely tested and sometimes dishonored during stressful periods throughout our nation’s history.
While we should be ever-vigilant to safeguard our liberties, Trump and the overwhelming majority of state and local officials have, thus far, not transgressed their constitutional authority.
After doing extensive research, it doesn’t appear that their is a consensus on whether or not vaccine mandates or our protracted lockdowns are constitutional or not. Which is typical for our government of late. It seems that you can get away with anything you want as long as you have the power to do do it. How are lowly citizens going to stand up against the federal government or major corporations? Money and power talks. I have personally come across this on more than a few occasions at work in the last year or so. If you have money you can fight some of the decisions being made, if not, you are out of luck. Otherwise, you basically have to be willing to give up everything in your life, if you are to stand a chance at succeeding. How many people can do that?
What is going on with our borders?
Thousands of Central American migrant children fleeing poverty and violence are in detention facilities along the U.S.-Mexico border. The headline-making surge once again spotlights the debate on how the United States handles holding immigrant children and the facilities they are detained in.
Thousands of Central American migrant children fleeing poverty and violence are in detention facilities along the U.S.-Mexico border. The headline-making surge once again spotlights the debate on how the United States handles holding immigrant children and the facilities they are detained in.
The designated shelters that house these children are near capacity, forcing the Biden Administration to reactivate detention facilities such as one in Carrizo Springs, Texas. This move reignited the term “kids in cages” and calls to question the dignity in which these children are being detained.
Why can’t the United States free all children from these detention facilities?
The United States cannot simply release children into the country immediately after their arrival, an issue that becomes even more acute when ensuring the children remain in safe conditions that limit their exposure to COVID-19. Any solution must recognize these challenges when finding a way to treat children in government custody with dignity and attention to their needs.
What is immigration detention, and how does it work?
Entering the U.S. without permission violates the law and may carry criminal penalties. Under standard immigration processes, single adults detained at a U.S. border have a civil removal proceeding which leads to their deportation and ban from re-entering the country for several years. While waiting for their hearing, they are detained at a Customs and Border Protection (CBP) facility designed to hold single adults for a short amount of time. The spaces often resemble prison cells. They are not appropriate for holding children and families caught crossing the border.
Do we detain unaccompanied children, and do they remain in child friendly facilities?
Yes, the U.S. detains unaccompanied children, but in different conditions than adults. Unaccompanied children may be held temporarily in facilities run by the Department of Homeland Security (DHS) and are quickly transferred to the custody of the Office of Refugee Resettlement (ORR). ORR facilities are intended to be more child-friendly and for longer stays. In fact, these detention facilities must be licensed for caring for children. ORR detains children while it works to identify a family member in the U.S. who may act as a guardian for the child.
With the recent increase of children at the border, the facilities are overburdened and the Biden Administration is attempting to find a reasonable solution.
I’ve heard the term “kids in cages” when referring to unaccompanied migrant children. Does the United States put kids in cages?
In 2014, the U.S. saw a surge of migrant children. The Obama Administration used warehouses to construct overflow CBP facilities. Chain link fences were used to create partitions in the warehouses creating the phrase “kids in cages.” These facilities are not the standard form of detention for children and are not intended to be long-term.
The term caught fire during the Trump Administration’s Zero Tolerance Policy which saw parents and children separated by the U.S. government so it could criminally prosecute the adults.
The phrase has recently resurfaced due to the swell of migrant children at the border and the Biden Administration’s re-opening of the overflow detention facilities.
What is driving the current increase in unaccompanied migrant children at the border?
There are many reasons for the recent increase in unaccompanied migrant children, including a complicated mix of push factors (what drives migrants to leave home) and pull factors (what induces migrants to choose the U.S. as their destination).
First, El Salvador, Guatemala, and Honduras—the Northern Triangle countries of Central America— face corruption, lack of economic opportunity, lax rule of law, and violence— including gender-based violence. On top of those factors, two incredibly destructive hurricanes hit the Northern Triangle in 2020, wreaking havoc and wiping out livelihoods.
Second, due to COVID-19 the Trump Administration invoked Title 42, a law that allows CBP to immediately return any migrant crossing the border to the country of last transit whether they were trying to evade law enforcement or attempting to request asylum. The Trump Administration included migrant children in this order. While the Biden Administration has kept the restrictions in place for most migrants, it is allowing unaccompanied migrant children to remain in the U.S. rather than being quickly removed. The increase of migrant children seeking asylum reflects the pent-up demand that built up in 2020.
How is the Biden Administration responding to the arrival of children at the border?
The Biden Administration has reactivated overflow facilities and turned family detention facilities into rapid processing centers to make additional space for child migrants. On March 10, the administration also announced the resurrection of the 2014 Central America Minors program to open a new avenue for children to seek asylum in the U.S. The program will allow certain minors to apply for asylum in their home country reducing the incentive to travel to the United States to seek protection.
These efforts confront serious health and logistical challenges. ORR only has 13,000 beds for unaccompanied children, a number that cannot accommodate the swell at our border. Although the Biden Administration attempted to house children in facilities with reduced capacity in order to provide social distancing, the administration announced in early March that it would allow these facilities to reach pre-pandemic levels to address the lack of space.
In mid-March, the administration also announced that it would deploy Federal Emergency Management Agency (FEMA) staff and resources to assist with caring for migrant children. This could mark a pivot toward using the agency to assist with future migration events at the border.
What was the Zero Tolerance Policy? How has the detention of children changed with each administration?
The Trump Administration’s Zero Tolerance Policy invoked a section of U.S. immigration law that allows the Department of Justice (DOJ) to prosecute a migrant for “illegal entry,” which is a misdemeanor charge that carries a federal prison sentence. Individuals convicted of these criminal violations must serve their prison sentence before going through the civil deportation proceedings.
Under this policy, CBP officials were required to refer immigrants detained at the U.S.-Mexico border to the DOJ for criminal prosecution. Many of the adults referred for prosecution were traveling with minor children. When the adults were put into the criminal justice system, the U.S. government separated families, putting children in DHS custody. Once the children spent 20 days in DHS facilities, they were transferred to ORR facilities.
Many of the children under the Trump Administration traveled with their families. Under the Obama Administration and what we are currently seeing in 2021, children are overwhelmingly crossing the border without a parent or legal guardian. This current trend is most likely due to parents staying in Mexico as Title 42 is still in effect.
What about COVID-19 and migrants at the border? What is Title 42?
Protocols and policies are in place at the border to reduce the likelihood of bringing additional COVID-19 cases into the U.S.
One policy is known as Title 42. The Trump Administration adopted the Title 42 program in March 2020 providing CBP the authority to quickly send any migrant crossing illegally back to their last country of transit. The policy, which was introduced under the Centers for Disease Control and Prevention, became the principal vehicle for removing migrants from the border in the summer of 2020. The Biden Administration has continued Title 42 expulsions for most migrants, save for unaccompanied children, while also gradually expanding asylum access at the border.
Migrants released from federal custody are tested for COVID-19 at the state and local level with help from non-governmental organizations. Migrants who requested asylum and have been waiting in Mexico under the Migrant Protection Protocols program are tested before entering the U.S.
COVID-19 is a global pandemic; every nation has been affected. It will continue to be a challenge faced at the border until vaccinations have reached all of us. But appropriate public health protocols, including testing and isolation, can mitigate the risk.
What does this controversy say about the challenges of managing the U.S.-Mexico border?
The United States needs to adopt a border system that can adjust to major changes in immigrant arrivals like the one we’re seeing now. A good example is the use of alternatives to detention programs where children and their families check-in with non-profit organizations. More broadly, the George W. Bush Institute has released recommendations for creating a nimble, long-term vision for managing migration that aims to minimize incidents.
The pandemic also highlights the ongoing challenge all nations will face as vaccines continue to roll out. Whether the people crossing the border are conducting trade, traveling for pleasure, or migrating to another nation, COVID-19 will impact the ability of all of us to move around the world. This underscores the need for the U.S. to work closely across North and Central America to ensure that our entire region is protected through vaccination.
What’s Happening at the Southern Border, Explained
Since April 2020, the number of people apprehended by U.S. Customs and Border Protection (CBP) near the Southwest border has been rising steadily. In early 2021, these increases have become a touchpoint in the public debate, with growing concerns voiced about the humanitarian, public health, and security ramifications of increasing migrant arrivals.
The concerns echo those raised in the summers of 2014 and 2019, when influxes of migrant families and unaccompanied children (UACs) fleeing violence and poverty in Central America overwhelmed CBP’s capacity to process them effectively. In early 2021, there has been an influx of unaccompanied children, presenting a significant challenge for CBP and other agencies to process them safely and securely. But the rising overall apprehensions numbers are driven largely by an increase in single adults from Mexico, not asylum-seeking families from Central America. In fact, much of the recent uptick is the result of rising recidivism rates — or individuals who are apprehended, expelled back into Mexico, and then apprehended again upon attempting to re-cross the border. The continued use of a pandemic-era border policy called Title 42 is playing a key role in driving both the rising recidivism rates and the increase in overall apprehensions.
This explainer breaks down what is happening at the U.S.-Mexico border, analyzing CBP data on recent apprehensions, describing the impact and use of Title 42 expulsions as well as the treatment of arriving UACs, and providing additional context on reports of increased migration to the U.S. and releases of migrant families into the interior.
For additional information about what is happening at the border, watch a March 16 discussion covering the state of play between National Immigration Forum President and CEO Ali Noorani and Senior Policy Associate Danilo Zak.
What’s Driving the Increase in Apprehensions at the U.S.-Mexico border?
U.S. Customs and Border Protection (CBP) tracks — and regularly releases — general data describing the total numbers of “Southwest Land Border Encounters.” These total apprehension numbers are often viewed as a proxy for the rate of overall unauthorized immigration into the U.S. But there are a number of additional factors which might drive an increase in encounters, and further analysis of the CBP data provides additional insights on these factors.
Overall land border encounters have increased since April, and they have continued to rise after President Biden’s electoral victory in November.
The data show that encounters hit a low of approximately 17,000 in April 2020 at the start of the COVID-19 pandemic and have since risen to just over 188,000 in June 2021. What is driving this increase?
It is first important to put the overall encounter numbers in context. While we last saw a monthly number over 180,000 in 2001, numbers about this high were fairly common in the 2000s. In addition, total apprehension numbers tend to hit annual high water marks in the spring and early summer.
Recent increases in migration at the border, including in the spring of 2019, were driven largely by asylum seeking families and children from Central America. In 2021, the numbers of families and unaccompanied children (UACs) at the border have risen significantly after cratering at the start of the pandemic. But these account for only a portion of the recent overall increase in the apprehensions, and the numbers of families and UACs have begun to decline moderately in recent months. CBP encountered 71,227 family units, accompanied children, and UACs in June 2021. By contrast, in May of 2019, that number peaked at 100,518.
The number of arriving unaccompanied children and families tends to peak in May, in large part because of the summer heat. Rising arrival numbers in June 2021 — even if they remain far below the high point in 2019 — signals there are serious push factors at work forcing families and children to make the journey to the border in conditions that are even more dangerous than usual.
Instead of families and UACs, the increased apprehensions are largely the result of increasing recidivism rates of Mexican adults traveling alone. Pandemic era procedures called “Title 42” expulsions carry fewer penalties than traditional processing for repeat attempts of unauthorized entry. The result is an increase in single adults attempting to cross the border over and over again in an attempt to avoid apprehension. This is depicted in a sharply rising recidivism rate since Title 42 procedures began in March 2020, rising from 7% of apprehensions representing repeat crossers in 2019 to over 37% since March 2020.
The high recidivism rates are backed up by recent reporting on the border. According to one report, some individuals have attempted to cross as many as 30 separate times in one calendar year. In June, CBP reported that 34% of all arrivals were repeat crossers. Recidivism is concentrated among single adults, so the rate is likely far higher than 34% for this group. In its release on the data from June, CBP also noted that as a result of a high number of repeat crossers, the agency has encountered fewer unique individuals this fiscal year to date (454,944) than during the same period in 2019 (489,760).
The available CBP data depicts a situation in which a pandemic-era protocol implemented in March 2020 is continuing to incentivize repeated attempts by single adults to cross the border without authorization.
What are Title 42 expulsions and how are they being implemented at the border under the Biden administration?
In March 2020, in response to the onset of the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) issued a rule that gives the Department of Homeland Security (DHS) the authority to immediately expel or deport anyone who attempts to cross the border without authorization. DHS and CBP immediately started using the rule, issued under Title 42 of the 1944 Public Health Service Act, to expel almost everyone apprehended at the border, including vulnerable asylum seekers, pregnant women, and unaccompanied children.
Under these “Title 42” procedures, some individuals were expelled to their home countries via deportation flights, and others were summarily returned to Mexico just hours after they were apprehended at the border. Because of their expedited nature, these expulsions were not processed according to traditional border processing procedures, which occur under Title 8 of the U.S. Code. As a result, Title 42 expulsions prevent any access to due process for those seeking protection from persecution. These expulsions are also not documented in the same manner as Title 8 deportations, and while under Title 8 repeated attempts to enter without papers carries a felony offense, under Title 42 there are no additional penalties for repeat unauthorized crossers.
The Trump administration expelled over 200,000 individuals at the border under Title 42, including over 16,000 unaccompanied children. The Biden administration has continued to expel the majority (56% in June) of asylum seekers and others arriving at the U.S.-Mexico border under Title 42. The administration is not applying the procedures to unaccompanied children, who are instead subject to normal processing guidelines and referred to Office of Refugee Resettlement (ORR) shelters to be screened for human trafficking and to continue their cases in immigration court. The administration has also instituted exceptions to Title 42 for certain vulnerable individuals, particularly those in family groups. In June 2021, approximately 85% of arriving families were processed into the U.S. and allowed to pursue their asylum claims.
According to multiple reports, the Biden administration is considering exempting all families from Title 42 by the end of July, and rolling back the policy entirely by the end of the summer.
What is happening to unaccompanied children when they arrive at the border?
While Title 42 and rising recidivism rates are driving the uptick in overall apprehensions at the Southwest border, there has been a sharp increase in arriving unaccompanied children (UACs) as well. In March, for example, while UACs made up only about 11% of overall apprehensions, the number of arrivals doubled from the month before. The number of arriving UACs declined slightly in April and May before rising again in June.
When unaccompanied children are apprehended at the border, they are first taken to CBP holding centers. These facilities are not meant to house children, and by law minors must be transferred to the care and custody of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS) within 3 days. ORR shelters are staffed by trained childcare providers, and once transferred to ORR children must be further screened to determine whether they have been victims of human trafficking or have a credible fear of persecution or torture if returned to their home country. ORR works to process and release the children to vetted sponsors, including family members or foster homes, while their immigration proceedings continue.
ORR shelters have a capacity of approximately 13,600. But in February 2021, ORR shelters were at 40% reduced capacity (8,483 beds) due to safety protocols related to the COVID-19 pandemic. The increase in arriving children meant the shelters were quickly reaching their reduced capacity, and children were getting backed up in CBP holding facilities for longer than the maximum allowable 72 hours.
The Biden administration has taken a number of steps to address this challenge. As of July 15, the U.S. is operating six emergency housing sites under HHS, five “Emergency Intake Sites” and one “Influx Care Facilities.” These facilities are not state-licensed and are larger than typical ORR shelters, but the Biden administration has stated that it intends to treat children according to state licensing requirements even in the new facilities, including by providing mental health care, education, and legal services. Multiple recent court filings in an ongoing settlement concerning the treatment of unaccompanied children details the conditions at various facilities and shelters. On March 5, the Biden administration also directed existing permanent ORR shelters to try to return to their full capacity of 13,600 beds. As of May 13, HHS has increased state-licensed permanent shelter capacity to 10,543 beds.
The administration has also worked to expedite the processing of children who can be released to vetted sponsors. In the past, it has taken up to six months for many children to be released to sponsors, but due to recent efforts to expedite the process, the average time spent in ORR custody has dropped to 27 days.
All of these actions have allowed the administration to begin to reduce the number of children stuck in CBP custody. The administration had also made progress reducing the overall number of children in custody (including those held in the emergency intake facilities), although the number of children in HHS custody began to increase again in June.
Are immigrants being released into the interior?
Other than unaccompanied children and many families, most individuals apprehended at the border — including asylum seekers — are immediately expelled back to Mexico or put on deportation flights to their countries of origin. However, there are limited groups of migrants who are being held in detention facilities or released into the interior under Alternatives to Detention (ATDs), where they are supported and sheltered by nongovernmental humanitarian groups and border communities.
Beginning in early February, CBP began releasing some families into the interior at a small fraction of locations along the border. The families had initially been put into Title 42 procedures and were set to be expelled back into Mexico, but the Mexican government did not agree to accept them because migrant shelters in certain areas had reached capacity. The change was due in part to a series of reforms to Mexican law regulating the detention of migrant children and families, which were passed on November 12, 2020. In March, the Biden administration also stopped expelling families with children under seven years old or with particular vulnerabilities. According to CBP data, under one third of all individuals in family units were expelled under Title 42 in March, a drop from the over 60% of families who were immediately expelled in January. The families who are not expelled are processed under Title 8 or released with booking records after parents are photographed and fingerprinted. In early May, the administration further clarified exceptions to Title 42 for families, setting up a system in which NGOs on the Mexican side of the border could refer vulnerable families to be processed in at ports of entry. In June, approximately 85% of families were processed in to the U.S. and placed in immigration court proceedings.
Also in February, the Biden administration began slowly processing in 25,000 migrants that were caught in the Trump-era Migration Protection Protocols (MPP), also known as “remain in Mexico.” Under MPP, asylum seekers from Central America had been required to stay in Mexico’s dangerous Northern border region while awaiting their cases to be heard in U.S. immigration court. A regularly updated Human Rights First report has documented over 1,500 cases of publicly reported murder, rape, kidnapping, and other violent assaults experienced by those forced to wait in MPP. On June 22, the administration expanded the plan to those who had their asylum cases terminated while they were waiting in Mexico.
While the policy is not formalized, the administration also seems to be allowing individuals — including single adults — who are fleeing from particular countries into the U.S. to enter into immigration court proceedings and pursue their asylum claims. For example, according to a July 13 report, approximately 96% of Cubans were allowed into the U.S. in May 2021 and not expelled under Title 42.
Do asylum seekers at the border pose a public health risk during the COVID-19 pandemic?
According to numerous public health experts, with proper medical guidance and procedures, the U.S. can both safeguard public health and effectively offer protection to asylum seekers fleeing persecution at the Southwest border. In an August 6 letter to the Trump administration, 170 public health experts urged DHS to rescind Title 42 procedures, and instead implement standard border processing measures “grounded in the best available public health guidance.” The letter continued that the U.S. “may use health measures such as testing, or quarantine, as needed.” According to a March 10 Associated Press report, there is no evidence arriving migrants are a significant factor contributing to the spread of the virus.
The few asylum seekers who are being released into the U.S. are subject to more significant screening procedures than the millions of individuals who cross legally at ports of entry for work, trade, government business, and other reasons. In a given month during the pandemic, over 8 million individuals cross the border legally. These travelers are not tested or subject to quarantine procedures. The administration appears to be planning expanding exemptions for travelers at ports of entry.
There have been documented COVID-19 outbreaks in Immigration and Customs Enforcement (ICE) detention centers and in facilities for unaccompanied children. However, arriving asylum seekers and unaccompanied children are being vaccinated at very high rates compared to the rest of the U.S. population. Over 90% of all migrants at one large facility in Laredo, Texas are receiving COVID-19 vaccines, as are most unaccompanied children old enough to be eligible.
Can we expect migration at the border to continue to increase in the coming months?
Apprehensions may remain at high levels in the coming months, particularly as long as Title 42 is still in place and driving up recidivism rates. In addition, the root causes driving migration from Central America have not been addressed, and migrants are likely to continue to attempt the journey to the U.S., seeking protection and new opportunities. Past seasonal migration trends suggest annual peaks usually occur in March, April and May, so to see an increase in June signals there are significant, non-seasonal drivers of migration at work.
However, overall arrival numbers plateaued in April and May and only ticked up 5% in June. In addition, large migrant caravans from Central America continue to be stopped by Guatemalan and Mexican border authorities before they reach the U.S. A caravan of over 2,300 migrants from Central America was blocked by Guatemalan security forces in late January. On March 10, the Mexican government announced it stopped approximately 200 Central American migrants on two buses traveling towards the U.S. border. Vice President Kamala Harris has lead diplomatic engagement with Mexico and other countries in the region to combat smugglers and address the root causes of migration.
Even the limited number of asylum seekers being allowed to enter the border today are posing logistical challenges regarding orderly processing procedures. The treatment of unaccompanied children in government custody continues to raise humanitarian concerns. The administration is working quickly to respond, but the need for practical solutions remains urgent.
America’s Immigration Amnesia
Despite recurrent claims of crisis at the border, the United States still does not have a coherent immigration policy.
In the early 2000s, Border Patrol agents in the Rio Grande Valley of South Texas were accustomed to encountering a few hundred children attempting to cross the American border alone each month. Some hoped to sneak into the country unnoticed; others readily presented themselves to officials in order to request asylum. The agents would transport the children, who were exhausted, dehydrated, and sometimes injured, to Border Patrol stations and book them into austere concrete holding cells. The facilities are notoriously cold, so agents would hand the children Mylar blankets to keep warm until federal workers could deliver them to child-welfare authorities.
But starting in 2012, the number of children arriving at the border crept up, first to about 1,000 a month, then 2,000, then 5,000. By the summer of 2014, federal officials were processing more than 8,000 children a month in that region alone, cramming them into the same cells that had previously held only a few dozen at a time, and that were not meant to hold children at all.
As the stations filled, the Obama administration scrambled to find a solution. The law required that the children be moved away from the border within 72 hours and placed in the custody of the Department of Health and Human Services, so they could be housed safely and comfortably until they were released to adults willing to sponsor them. But HHS facilities were also overflowing. The department signed new contracts for “emergency-influx shelters,” growing its capacity by thousands of beds within a matter of months. Government workers pulled 100-hour weeks to coordinate logistics. And then, seemingly overnight, border crossings began to drop precipitously. No one knew exactly why.
“The numbers are unpredictable,” Mark Weber, an HHS spokesperson, told me in 2016, just as another child-migration surge was beginning to crest. “We don’t know why a bunch of kids decided to come in 2014, or why they stopped coming in 2015. The thing we do know is these kids are trying to escape violence, gangs, economic instability. That’s a common theme. The numbers have changed over the years, but the themes stayed the same.”
The cycle repeated itself under President Donald Trump in 2019, and is doing so again now. And as border crossings rise and the government rushes to open new emergency-influx shelters, some lawmakers and pundits are declaring that the Biden administration is responsible for the surge. “The #BidenBorderCrisis was caused by the message sent by his campaign & by the measures taken in the early days of his new administration,” Marco Rubio tweeted last week. The administration is “luring children to the border with the promise of letting them in,” Joe Scarborough, the Republican congressman turned cable-television host, told millions of viewers during a recent segment.
But for decades, most immigration experts have viewed border crossings not in terms of surges, but in terms of cycles that are affected by an array of factors. These include the cartels’ trafficking business, weather, and religious holidays as well as American politics—but perhaps most of all by conditions in the children’s home countries. A 2014 Congressional Research Service report found that young peoples’ “motives for migrating to the United States are often multifaceted and difficult to measure analytically,” and that “while the impacts of actual and perceived U.S. immigration policies have been widely debated, it remains unclear if, and how, specific immigration policies have motivated children to migrate to the United States.”
The report pointed out that special protections for children put into place under the Trafficking Victims Protection Reauthorization Act of 2008 may have shifted migration patterns by encouraging parents to send their children alone rather than travel as a family. But it found that blaming any one administration for a rise in border crossings ultimately made no sense—the United States has offered some form of protection to people fleeing persecution since the 1940s, and those rights were expanded more than 40 years ago under the Refugee Act of 1980.
This is not to say that President Joe Biden’s stance on immigration—which has thus far been to discourage foreigners from crossing the border while also declaring that those who do so anyway will be treated humanely—has had no effect on the current trend. Like other business owners, professional human traffickers, known as coyotes, rely on marketing—and federal intelligence suggests that perceived windows of opportunity have been responsible for some of their most profitable years.
For example, border crossings rose in the months before President Trump took office in part because coyotes encouraged people to hurry into the United States before the start of the crackdown that Trump had promised during his campaign. With Trump out of office, some prospective migrants likely feel impelled to seek refuge now, before another election could restore his policies.
But placing blame for the recent increase in border crossings entirely on the current administration’s policies ignores the reality that the federal government has held more children in custody in the past than it is holding right now, and that border crossings have soared and then dropped many times over the decades, seemingly irrespective of who is president.
Given, then, that the movement of unaccompanied minors has long ebbed and flowed—we are now experiencing the fourth so-called surge over the course of three administrations—why do border facilities still appear overwhelmed? The answer, in part, is that the current uptick is simply getting more media attention. When Trump took office, in 2017, 13,000 children were sitting in Health and Human Services facilities, about 1,000 more than are in federal custody today; he did not receive any questions about the detention of migrants during his first press conference, and an online search did not turn up a single news story citing that statistic. The federal government, across multiple administrations, has also chosen not to meaningfully improve the conditions in border facilities: Children are still held in the same concrete cells that were used in the early 2000s, and the few larger facilities that the Department of Homeland Security has acquired since then to help expedite processing of children are just as austere as previous ones. They became infamous almost as soon as they opened, known as the places where children are held in what are effectively cages.
As I’ve covered this issue over the years, federal authorities have often vented to me during cycle peaks, complaining that facilities built for law-enforcement purposes had been hijacked to shelter children. During one of the recent surges, a Customs and Border Protection commissioner lamented to me that offices at ports of entry along the border were being converted into nurseries with TVs playing cartoons, and that the agency was hemorrhaging money to keep up with the need for diapers, feminine products, and crackers and juice. When I asked him why CBP didn’t just build additional, more family-appropriate facilities, he replied that such a project could send a message that would encourage even more people to migrate to the United States.
With his comment, the commissioner reiterated what many other officials I’ve talked with over the years have said: The issue is not that the federal government is unable to handle the large numbers of children crossing the border now—rather, that it has been unwilling to spend the money required to process children more safely and comfortably, because of a concern about optics. But if, as the Congressional Research Service report concluded, American policies are not the primary driver of migration, then the federal government may be needlessly avoiding changes that could improve how the United States treats the most vulnerable migrants.
The current backup at the border stems from more than insufficient infrastructure. Most Central Americans hoping to escape crushing poverty, gang and gender-based violence, and the increasing ravages of climate change are not eligible to apply for any existing American visa. Under current immigration law, which dates back to 1954 and was last updated in 1996, the only legal route into the United States for most of them is via obtaining asylum. This requires getting in line behind literally more than 1 million other people, and waiting on an arcane, individualized legal proceeding that requires multiple appearances before a judge and takes, on average, more than a year to complete.
American asylum protections were first established as part of an effort to atone for the rejection of Jewish migrants who’d fled Nazi Germany during World War II, only to be turned away from American shores. The program was also seen as a tool for promoting democracy abroad, offering a haven to people escaping Communist governments during the Cold War. The messaging campaign worked. The United States became known, even more than before, as a place where people could find both freedom from persecution and material opportunity. The American economy has grown more robust with the addition of foreign workers, a trend that shows no sign of changing.
But current immigration law does not, for the most part, acknowledge that many beneficiaries of humanitarian protections also become students and low-wage workers, who are a major portion of the American economy and are consistently in short supply. Because of the demand, farmers in New York and restaurateurs in Miami poach undocumented workers from one another; without new immigrants, they say, their businesses would tank. Yet the law treats people who migrate for educational or financial gain and those who seek humanitarian protections as if they are separate populations, when that is often not the case. And because the rules generally require that people who apply to migrate for work or school be relatively wealthy, the Central American migrants crossing the border today, who are not, pursue the only legal route available to them—asylum.
“The asylum system isn’t the right path for most people, but it’s the only path,” a career government official who has served in the past three administrations recently told me.
Many of these migrants are genuinely escaping harrowing circumstances. The Congressional Research Service report found that almost all unaccompanied minors have experienced some form of gang violence, much of which fits the definition of torture. And in recent years, immigration judges have declared that people fleeing attacks based on their gender or sexual orientation should also qualify for asylum status in the United States. Last summer, when I traveled to a working-class suburb of Guatemala City, the deep poverty was immediately evident in the crumbling homes I entered, where multiple generations crammed together under only partial, if any, roofing. People I interviewed shared stories of recent murders in their neighborhoods as casually as if we were chatting about the weather.
But continuing to funnel hundreds of thousands of people a year through a broken, backlogged system does not appear to be working. The asylum process creates an incentive for people to exaggerate their stories, which harms the credibility of others’, and has resulted in people who needed protection being sent home to their death. The plodding asylum system, and the failure to acknowledge that its recipients are also part of the American economy, is the primary reason facilities along the border are full today, and will continue to get overloaded every time migration has one of its cyclical increases.
The Biden administration has begun to take steps to address this problem for young people by reintroducing the Central American Minors Program, which allows parents who are lawfully present in the United States to petition for their children to join them. But that program, created by President Barack Obama in 2014 and eliminated three years later by President Trump, has resettled only about 5,000 children, slightly more than half of the number who crossed the border just in the last month. Many of the children crossing the border now may not qualify, because they don’t have a parent already living in the United States.
The current fixation on whether the Biden administration will refer to what is happening at the border as a “crisis” reflects the general lack of perspective with which migration “surges” are generally treated. Moments at the border like this should by now be considered almost routine, but our collective short-term memory—sometimes exacerbated by media hyperbole—allows elected officials to capitalize on them for their own political gain. This misleading of the public also helps Congress dodge accountability for its role in retaining a system that has been outdated for decades. Every time migration spikes, federal officials must abandon their primary work to demand billions of dollars in emergency funds, in order to respond to events that were foreseeable.
In the past decade, Americans have come to take for granted that Congress is too divided to pass any meaningful legislation—but that forgone conclusion could be revisited. Setting immigration policy is a congressional responsibility. In recent years, when Barack Obama and Donald Trump each attempted to take control of the issue from the legislative branch, they ended up in court, facing state governments accusing them of executive overreach. Such presidential efforts amount to mere stop-gap measures, which inevitably give way and allow the cycle to continue.
President Joe Biden’s ‘big problem’ at the US border
When Joe Biden took the presidential oath of office in January, he faced two massive, related crises – the coronavirus pandemic and its resulting economic fallout.
Those were challenges as obvious as they were anticipated. Now, however, the president is confronting his first political and policy crisis from a different direction – on immigration, as the US-Mexico border experiences yet another surge in undocumented entries.
The nature of the crisis is hardly novel, as most recent presidents have grappled with some kind of immigration-related challenge during their time in office. For Biden, however, it comes at a moment when he would prefer to focus elsewhere.
Politics doesn’t care what politicians would prefer, however. The immigration situation has the potential to derail Biden’s other best-laid plans, as he is squeezed by criticism from Republican foes and some within his own party.
A ‘big problem’
Speaking to reporters in the White House briefing room on Monday, press secretary Jen Psaki acknowledged that the current situation on the US-Mexico border has become a “big problem”.
The overall number of undocumented migrants encountered on the US border is higher than at the same point in any of the previous three years – and growing at a faster pace toward the traditional peak entry time in late spring.ADVERTISEMENThttps://buy.tinypass.com/checkout/template/cacheableShow?aid=tYOkq7qlAI&templateId=OTBYI8Q89QWC&templateVariantId=OTV0YFYSXVQWV&offerId=fakeOfferId&experienceId=EXAWX60BX4NU&iframeId=offer_0e763acc7b457c03340a-0&displayMode=inline&widget=template&url=https%3A%2F%2Fwww.bbc.com
In particular, the figures for unaccompanied minors at the border have sharply increased in the past few months.
About 15,000 unaccompanied youth migrants have been detained at the border in January and February. The total for all of last year was 37,000. In 2019, before the coronavirus pandemic slowed migrant movement, it was 75,000. At this pace, that mark will be easily surpassed.
As of Sunday, US Customs and Border Protection were housing 4,200 children in detention facilities along the border and admitting an average of 565 children – most between the ages of seven and 13 – a day.
Some of this is the result of decisions made by Joe Biden early in his presidency. He reversed a Trump administration policy of turning away unaccompanied children at the border, instead opting to process them and place them with sponsoring families in the US.
Criticism and complications
Like many Democrats, Biden has been critical of Donald Trump’s since-rescinded decision in 2018 to separate the children of undocumented migrants from their parents – and the former president’s draconian immigration enforcement policies in general.
“Securing our borders does not require us to ignore the humanity of those who seek to cross them,” Biden wrote in an executive order reversing the unaccompanied minor policy and announcing an overall review of federal immigration procedures.
But with such moves come complications. Migrants travelling from Central America have told the BBC that they are doing so because they believe the Biden administration will give them amnesty. The president’s attempts to discourage the journey have, so far, had no appreciable effect.https://emp.bbc.com/emp/SMPj/2.44.0/iframe.htmlMedia caption,Risking everything for an American dream
In her press conference, Psaki also pointed her finger squarely at Trump.
“The last administration left us a dismantled and unworkable system, and like any other problem, we are going to do everything we can to solve it. So our focus here is on solutions… The president’s very focused on expediting what’s happening at the border at every step in the process.”
Blaming the previous guy for a current problem is an age-old political manoeuvre – and it’s one that tends to have a limited shelf life. If the situation on the border doesn’t improve, the “big problem” will be squarely in Biden’s lap.
Republicans sense an opening
The president’s political adversaries on the right appear to be relishing the chance to use the situation on the border to their advantage.
While Biden and top administration officials have criss-crossed the US to tout the benefits of the recently passed $1.9tn (£1.4tn) Covid relief package, Republican officeholders have been travelling to the Mexican border – and blaming Biden for what they see as an overburdened system and presidential actions that are encouraging more illegal entries.
“The sad part about that is this didn’t have to happen,” House Minority Leader Kevin McCarthy said at a press event in Texas. “This crisis is created by the presidential policies of this new administration.”
After Democrats attacked Trump for “children in cages” – a result of his family separation policy – Republicans are returning the favour, accusing Biden of implementing policies that put unaccompanied minors in similarly harsh situations.
Immigration and border security were the lynchpin of Donald Trump’s successful presidential bid in 2016, and some Republicans may see it as a pathway back to power in future elections, including the 2022 mid-term congressional elections. The former president himself has joined in the chorus, although he glossed over the fact that recent immigration trends began when he was still president.
“When I was president, our southern border was in great shape — stronger, safer, and more secure than ever before,” he said in a statement issued last week. “Our country is being destroyed at the southern border, a terrible thing to see!”
For conservatives, immigration is the quintessential “wedge” issue – engaging their base and exacerbating divisions within the Democratic Party.
Activists growing impatient
Those Democratic Party divisions have been on display in recent days, as Biden’s more liberal supporters have grown restless over the Trump-era policies and provisions that have yet to be rolled back by the new administration.
For now, the US border with Mexico remains largely closed. And while unaccompanied children have been permitted entry into the US, most others have been turned away – and their asylum requests delayed. While the Trump-era ban on entry from certain majority Muslim nations has been lifted, the visa-approval process for foreign workers is still suspended because of Covid restrictions, and temporary visas for students are facing significant backlogs.
Patience among some on the left is wearing thin.
“The longer we sort of slow-walk that restoration of normalcy and how we would address the issues at the border with migrants – whether they’re adults or children – the [worse] the problem gets,” Congresswoman Ilhan Omar of Minnesota – herself a former refugee – told Politico this week.
“Once we think of the humans at the border as humans … we will have policies that are just, humane, and give them dignity.”
Meanwhile, Democratic moderates – like Congressman Henry Cuellar, who represents an area along the Mexican district – said the Biden team needs to do more to discourage migrants from travelling to the US and falling prey to human traffickers.
“They’re trying to be different from Trump, which I agree with,” he told Newsweek. “They need to be different; we don’t separate kids. But [Biden’s] ‘humane’ approach, is actually feeding the narrative that the bad guys are twisting to get people over; no ifs, no buts.”
Biden has unveiled comprehensive immigration legislation, but the prospects for passage in Congress – at least as long as the Senate rule requiring 60 out of 100 votes to approve most bills endures – is dim.
His administration is still not fully staffed, with delays caused by the lack of transition co-operation from the Trump administration and the Senate impeachment trial in February preventing top presidential nominees – who then select staff for their agencies and departments – from being confirmed quickly.
Over the course of four years, Trump officials dramatically altered the way the federal government handles immigration in the US. Liberals want those changes reversed as quickly as possible, but Biden – with multiple demands on his time and political capital – will be challenged to keep them satisfied.
His ability to do so, however, could determine how successful he is in keeping together the coalition of disparate interests that made his presidential victory last year possible.
What is going on with Afghanistan now?
“Doonya ba omeed zenda ast / دنیا با امید زنده است”
This Afghanistani proverb reads as “The world is alive with hope”
India, together with Bahrain, Liechtenstein, the Republic of Congo, South Korea, and North Korea, commemorated their independence on August 15, 2021. On the same day, the Taliban took control of Afghanistan’s capital, Kabul.
The dream for a life that most of us are accustomed to and naturally hold came to an end on this day for the people of Afghanistan. Independence day in these countries was celebrated in all its glory, but where was theirs?
The US and its allies have stopped their rescue missions and have left the Taliban to take full leadership of the country, from today.
Let’s take a deep dive into the Taliban and how they have influenced Afghanistan’s previous few decades.
Who are the Taliban?
The word Taliban means students in Pashto, and they eventually declared themselves the Islamic Emirate of Afghanistan (IEA). It is a Deobandi Islamist religious-political movement that many governments throughout the world consider a terrorist organization.
Background and Emergence
Islamic mujahideen warriors were fighting in Afghanistan when the Soviet Union conquered it in 1979. The Taliban formed the majority of its leadership. They got financing from the CIA (Central Intelligence Agency) and the Saudi Arabian General Intelligence Directorate (GID) through Pakistan’s Inter-Service Intelligence Agency (ISI).
The photo was taken at a Taliban camp in 2009. (Via: mei.edu)
Mullah Mohammad Omar founded this group of 50 students in his hometown of Kandahar. After overcoming the Soviets, he was dissatisfied with the Islamic law establishment’s failure. The US continued to subsidize the organization to keep Soviet advances at bay.
Where did it all begin?
Within a few months of formation, they became a group of 15,000 students. Their primary objective was to establish a monopoly of power in the Afghan state. As their first acting minister of foreign affairs, Mullah Ghaus quotes,
“The Taliban are facing opponents who want to increase their military advantage through war. There are too many arms in Afghanistan; the war would not end until they were disarmed.“
Smoke rising from the fighting between Taliban and Afghan personnel in South West Kabul, August 12, 2021. (Via: indianexpress.com)
According to their core goal, the Islamic framework of government could not be contested and widely promoted while achieving paradoxically side by side the goals of justice, peace, and security.
In 1996, they captured Kabul. It had previously been the hub of expanding communist growth combined with modernism. According to the Taliban, the Islamic Brotherhood and Communist modernism were sprouting from Kabul as the epicenter and were degrading the entire country. The war was still raging at the time, thus all of the ministers were appointed on an “acting” basis until the hard-won jihad was achieved.
They soon came up with links to Osama Bin Laden and other lists of terrorist groups, which in turn concerned superpowers like the United States, who themselves had been fanning the movement earlier.
Afghanistan map portraying Taliban occupied region. (Via: en.wikipedia.org)
According to the United Nations assessments, they were committed to carrying out systematic massacres, accumulating up to 15 in total between 1966 and 2001. They justified the cleansing by referencing the international court killings in Bosnia.
Who are Hazaras, and why were they massacred?
The Hazaras are a minority community in Afghanistan who reside in the Hazarajat (central Afghanistan). They are believed to be the descendants of Genghis Khan. After the annexation, they were overrun by the Sunni Muslim rulership and pushed into the dry, mountainous regions.
They were targeted by Taliban soldiers because they are Shia Muslims with a specific dialect and physical appearance, in contrast to the majority of the Afghan population, which is Sunni. Intensive massacres and violence reduced their population to 10-12 % of the entire 38 million people.
People from the Hazara community watching the United States soldiers inspecting a site in Daykundi province. (Via: Wikipedia)
The Mazar-i-sharif, also known as the anti-Hazara massacre of 1997, took thousands of casualties. They allegedly entered the city and opened fire on everybody and everything, including store owners, women, children, shoppers, and others.
The list goes on, with mass murders at Robatak Pass (31 people), Yakawlang (170 men), Bamyan (3 mass graves), Khas Uruzgan attack (9), Zabul beheadings (men abducted and throats cut, women and children massacred from various ethnicities), and so on.
What is the state of women under the Taliban?
Misogyny, gender apartheid, and violence against women in public areas are a far more common occurrence in Afghanistan than anywhere else on the planet.
A member of Taliban religious police lashing women, 2001. (via Wikipedia)
Wearing a burqa was not common in Afghanistan with communist modernity, and not being able to afford one after their arrival was met with severe punishments. They had to be accompanied by a mahram ( a male member of the family, wearing a burqa) when they came out in public or else were lashed with the cane.
They refused to allow them to work in a mixed-gender environment or even employ them since it was against sharia or purdah legislation.
Women were also forbidden from acquiring education, forcing them to enroll in underground schools where the Taliban can’t find them.
When the Taliban took over Kabul in early July of 2021, religious leaders asked the population to give a list of women above the age of 15 or widows so that they could be married off to Taliban soldiers.
Right after the Taliban took control of Kabul, a University student (woman) told,
‘Now I have to burn everything I achieved.’
9/11 and the Aftermath
The devastating hijacking and crash of 4 United States jetliners awakened the US government to the developing relations between Al-Qaeda and the Taliban. President George W. Bush implemented a strategy to dismantle their alliance and asked Afghanistan to hand over Taliban leader Mullah Mohammed Omar.
US special forces working with the Afghan alliance, 2001. (Via: britannica.com)
When Omar refused, the Central Intelligence Agency (CIA) named Jawbreaker to initiate the strategy with the Afghan alliance. They were soon joined by the United States and British special forces, which led to the Taliban retreating from Kabul on November 13, 2001, without fighting back.
Why has Afghanistan earned the moniker “Graveyard of Empires”?
History has it that Afghanistan could not be conquered by any superpower since ancient times. Every empire failed to pacify differently populated ethnicities.
When Taliban troops took over Kabul on August 15, 2021, the freedom enjoyed by Afghanistan under the US military came to an end. They positioned themselves at Kabul airport, preparing to attack, fading away from the US and Afghan army’s authority.
Members of Afghan security forces in Panjshir province, August 15. (Via wbur.org)
It took 20 years for the United States to rebuild the nation and everything came to an end that day. President Ashraf Ghani fled with millions of dollars and left the country in a mess. The US started its foreign evacuation right away and airlifted their soldiers and families in planes while the Afghans flooded the airport to hop on the aircraft. Unfortunately, many died in the process.
Chaos and panic at Kabul airport. (Via: NYT)
As thousands of people managed to escape to different nations that took them in, many were also left reeling without a passage out of the country.
On the 26th of August, 2021, two suicide bombers and gunmen attacked the crowds at the airport. Even though it was heavily guarded by the United States military, the attacks would not stop. The Islamic State group admitted to the killings on a news channel. This deadly incident killed at least 160 Afghans and 13 US service personnel.
The first explosion was near the airport entrance, and another was a little far away, near a hotel. The US embassy told the citizens waiting at Abbey Gate, East Gate, and North Gate to get out immediately as further attacks were expected to follow up shortly. The US president Joe Biden affirmed that the evacuation process will continue, and they will plan attacks against the IS group systematically.
A wounded person being rushed to the hospital outside Kabul airport. (Via: CNN)
Visualizing the Taliban through the words of Khaled Hosseini
Khaled Hosseini is an Aghan-American writer, born in Kabul and moved to the United States in 1980. He is also a U.S. Goodwill Envoy to the UNHCR, the United Nations Refugee Agency, and founder of Khaled Hosseini Foundation, which aims to provide humanitarian assistance to the people in Afghanistan.
His books Kite Runner and Thousand Splendid Suns have beautifully displayed the serene landscapes of Afghanistan along with Taliban occupation and its dreadful scenarios.
The Kite Runner. (Via: khaledhossieni.com)
The story portrays a beautiful friendship between a boy named Amir, from an aristocrat Afghan family, and Hassan, the son of their servant from the Hazara community.
It journeys through Afghanistan during the communist rule modernity with motor cars to the rule by Taliban and how it affected the protagonist, Amir’s life as he escaped to the United States with his Baba (father).
Some excerpts show how Hassan and his family were discriminated against and at last, got killed in the street with his wife later by the Taliban.
Thousand Splendid Suns. (Via: khaledhossieni.com)
The story revolves around two women named Mariam and Laila residing in Afghanistan. Mariam is born after an extramarital affair with an aristocrat, who married her off to a thirty older man named Rasheed, a shoemaker in Kabul.
Laila grew up around their home and was in complete contrast to Mariam, open and cheerful. Their lives intersect after the Taliban killings left Laila an orphan, and she was left with no choice but to marry Rasheed.
The plot displays the contrast of how women were free and educated before the Taliban, displaying Laila’s character and then were subdued and tortured afterward.
Both the stories portray just the contrast between Afghanistan before the Taliban and a helpless Afghanistan during their rule. Women being lashed in public for roaming around without male members of the family, Hazara killings, sexual harassment and rapes of men and women, and other excerpts would bring chills to the reader.
Polaroids of Hope
This heartwarming picture of an afghan girl skipping through the airport after being evacuated to Belgium became viral on the internet. (Via: Zee News)
Hundreds of Afghanis are being evacuated in US Air Force’s C-17 aircraft. (Via: scmp.com)
Afghanistan refugees in Delhi, India, who escaped war extremism. (Via: borgenproject.org)
People evacuated from Kabul arrive at Delhi air force base. (Via: The Hindu)
An afghan girl kisses her brother cheerfully after they are saved from Kabul to Ghaziabad in an Indian Air Force’s C-17 aircraft. (Via: ANI)
There are probably very few happy photographs of Afghanistan and its people on the internet, but one thing that pervades all of them is the desire for a better tomorrow. Taliban is learning to establish a systematized government and asking women to participate in, according to some headlines, but their violence and the fear that is forcing Afghans out of their ancestral homes is uncanny.
A photograph of Afghani children. (Via: Relief Web)
We can pray for a day when we wake up and encounter a piece of news that reads of hope. Until then, may Afghanistan get the strength it needs to face and overcome all adversity.
10 Facts About What’s Going On In Afghanistan Right Now
You may have questions about the present situation in Afghanistan— What happened?; When did it start?; Why did it happen?; Who’s to blame?; What’s next?
You may have questions about the present unfortunate situation in Afghanistan right now.
What happened?; When did it start?; Why did it happen?; Who’s to blame?; What’s next?
These among many others may be heavy in your heart. Hence, this article tries to explain the entire situation as short as possible in very simple language.
The Taliban, a terrorist group in Afghanistan took over the country’s capital and seat of power, Kabul on Sunday after a week of lightning victories, taking down provinces and borders of the country. The group’s rise followed since the United States began withdrawing its remaining troops after 20 years of war in the country.
Right now, the situation is a chaotic one as thousands mob the Kabul airport to flee the country. Taliban has said it is regrouping its fighters from across the country and would announce its new governance strategy after the US finalizes its withdrawal later this month.
HOW DID THIS START?
1. The Taliban, known as “students” in the Pashto language, is a hardline Islamic group that emerged in the early 1990s. It is believed that the predominantly Pashtun movement first appeared in religious seminaries – mostly paid for by money from Saudi Arabia – which preached a hardline form of Sunni Islam. The Soviet Union in 1979 invaded Afghanistan and sustained its presence up until 1989. It was at this point that foreign powers first intervened in the matters of Afghanistan to push out this opposing world so-called threat at the time. The US, Pakistan, Iran, China jointly supplied money and arms to Mujahideen— Afghanistan’s resistance movement.
Most scholars and fighters of the Mujahideen movement were trained by Pakistan as they were educated in madrassas (religious schools) in Pakistan.
2. Thereafter, the Taliban showed up on the scene, taking over Kabul in 1996. It was welcomed by many Afghans who feared the excesses and infighting of the Mujahideen after the Soviets were driven out. The group showed up with the promise of restoring peace in Afghanistan and some parts of Pakistan through its own austere version of Sharia, or Islamic law.READ MORE NEWS Afghan Taliban Announces Three-Day Ceasefire For Eid Celebration
3. In the enforcement of the Sharia law, the Taliban earned early popularity largely due to their success in stamping out corruption, curbing lawlessness and making the roads and the areas under their control safe for commerce to flourish. But problems began with its harsh punishments in line with their strict interpretation of Sharia law – such as public executions of convicted murderers and adulterers, and amputations for those found guilty of theft.
Men were forced to grow beards and women had to wear the all-covering burka. The Taliban also proscribed television, music and cinema, and disapproved of girls aged 10 and over going to school.
The world became concerned, alleging human rights violations by the group. All the time from 1998 to 2000, the US and United Nations carried out airstrikes and sanctions respectively to force the Taliban to hand over Al-Qaeda leader, Osama Bin Laden but to no avail.
THE AFGHAN WAR… WHY DID IT HAPPEN?
3. The Afghan war did not start in 2021. It has been on since the early 1990s, making it a war that has lasted for over two decades (20 years) between foreign powers, particularly the United States, the Afghan forces on the same camp against the Al-Qaeda-allied Taliban.
4. The US has been on the frontline of the battle after invading Afghanistan to take down the Taliban following the September 2001 attack on Washington by the Osama Bin Laden-led Al-Qaeda group. It is believed that the Taliban helped Al-Qaeda in the attack on the US. The attack left over 3,000 Americans dead. Weeks after the attack, the US under George Bush’s administration announced it has launched attacks against terrorist groups and the Taliban in Afghanistan.READ MORE NEWS Top 11 Sci-Fi Movies Of The Last Decade – No 8 Will Leave You Mind-Blown!
5. October 2001, the US with support from Britain, NATO and Pakistan began its bombing campaign against Taliban forces. The Taliban were driven from power by the Northern Alliance and collections of other warlords.
The Talib fighters surrendered without the slightest shame, or doubt as their leaders decided that they’d rather be on the winning side than die a pointless death— more of a strategy to keep low. They did not discard their hard-core Deobandist interpretation of Islam that lies comfortably with their largely ethnic Pashtun culture and helped bring them to power in 1996.
The lesson for the students of guerrilla war was that, pretty soon, the West would lose its stomach for the fight. Since NATO had the watches, the Taliban had the time, as they liked to say — all they had to do was wait.
6. Since then, US troops, NATO, Germany, France and all others were stationed to fight the Taliban until 2011 when Osama Bin Laden was killed in Pakistan. Soon after, there were numerous Taliban attacks on Kabul and, in September 2012, the group carried out a high-profile raid on Nato’s Camp Bastion base.
In 2014, NATO formally ended its mission whereas Afghan forces were given the training, advising, and dollars galore from Washington to fight the war. But the Afghan forces have struggled to lead the counterinsurgency from the front due to large-scale corruption as foot soldiers suffered insufficient equipment and were often not paid.
7. Hopes of a negotiated peace were raised in 2013, when the Taliban announced plans to open an office in Qatar. But mistrust on all sides remained high and the violence went on. But finally, a US-Taliban peace deal was signed in February 2020 under the Donald Trump administration.READ MORE NEWS 10 Things You Thought You Knew About BBNaija Season 6 Housemate, Whitemoney. Check Out Number 5
The agreement was to evacuate the country by September 2021. US new president Joe Biden, however, in June 2021, moved the evacuation date to August.
8. Having outlasted a superpower through two decades of war, the Taliban began seizing vast swathes of territory, threatening to once again topple a government in Kabul in the wake of a foreign power withdrawing.
9. In one week, the Taliban, which has since been in control of some parts of Afghanistan and successfully stamped out most attempts by ISIS rivals to gain ground, closed in on almost all regional capitals. It seized at least 11 of the 34 provincial capitals and finally on Sunday, 15th of August, 2021, captured Kabul.
10. Biden’s withdrawal announcement was as deflating for Afghan forces as it was intoxicating for the Taliban. However, I bet the Taliban would have mounted up resistance still if the US had refused to honor the agreement. And the Afghan forces poorly equipped by the country’s government to face the war despite billions sent from foreign countries, were bound to lose morale.
Surely, I could give possible outcomes based on analysis and opinions but this article is based solely on facts only.
One thing, however, sure is that the war is still far from over even though the Taliban says it has ended.
China has extended its hand of friendship and wishes to align with the Taliban-led government. But note that China is US’ strongest threat right now.
Many Afghans fear that there could be a repeat of what happened in 1990s with the implementation of the Sharia law. They are all looking to escape the country. Now, how many countries can take in so much refugees? Remember, Afghanistan isn’t the only embattled country in the world right now.
5 Questions Now After President Biden’s Afghanistan Withdrawal
President Biden issued a stern defense Tuesday of his decision to exit Afghanistan. He also hailed the final evacuation — which saw more than 120,000 Americans, Afghans and others airlifted from the country — as an “extraordinary success.”
“My fellow Americans, the war in Afghanistan is now over,” Biden said from the White House. He added, “I refuse to continue a war that was no longer in the service of the vital national interest of our people.”
Americans have largely supported getting out of the country. The 20-year war cost thousands of lives.
How U.S. troops withdrew, however, has drawn its share of criticism. The far-faster-than-expected Taliban takeover created conditions that left the U.S. scrambling to get out. For security, American forces had to rely on a former enemy that once gave cover to the terrorist group that planned the 9/11 attacks.
Amid the chaos, a suicide bombing at the Kabul airport killed 13 U.S. service members and scores of Afghans.
Biden will hope that as the exit sign gets smaller in the rearview mirror, the decision grows more popular.
The ramifications from the U.S. involvement in Afghanistan, and the withdrawal from the country, will likely have long-lasting effects, and they raise lots of questions.
Here are five:
1. What happens to the Americans still in Afghanistan?
In his remarks Tuesday, Biden said there are about 100 to 200 Americans who remain in Afghanistan. Most are dual citizens, he said, who initially didn’t want to leave because of family roots in the country.
Two weeks ago, Biden had promised to stay until all Americans were out.
“If there’s American citizens left,” the president said on ABC News, “we’re going to stay to get them all out.”
But facing terror threats, there was an urgency to stick to the self-imposed end-of-August deadline to get out of Afghanistan. Biden said military, State Department and intelligence officials all urged him to not delay.
“I was not going to extend this forever war,” Biden said, “and I was not extending a forever exit.”
That doesn’t mean the U.S. isn’t working to get those Americans out, the president said.
“For those remaining Americans, there is no deadline,” Biden said. “We remain committed to get them out if they want to come out.”
Now this becomes a tricky diplomatic mission relying to an extent on the goodwill of the Taliban. Does the West have enough leverage to make them continue to get that done? (That’s not to mention whether there’s enough to ensure the safety of women and girls in the country. Many have their doubts, most especially on human rights.)
2. What happens to Afghan refugees and visa holders?
Refugees arrive at Dulles International Airport in Virginia on Tuesday after being evacuated from Kabul following the Taliban takeover of Afghanistan.Anna Moneymaker/Getty Images
About 100,000 evacuees were Afghans, Biden said. Many have already made their way to the United States, but not everyone is happy about it.
“You can be sure the Taliban … didn’t allow the best and brightest to board these evacuation flights,” former President Donald Trump said in a statement, sounding like he did when he first ran for president, criticizing Mexico and immigrants coming through the Southern U.S. border.
“How many terrorists will Joe Biden bring to America? We don’t know!” he added.
Special immigrant visa holders are all screened and subjected to rigorous background checks by the State Department. Many of them fought alongside U.S. troops, and many veterans are the ones leading the charge to get them to the U.S.
But that hasn’t stopped inflammatory nativist rhetoric.
“How many American military personnel have to die to evacuate unvetted refugees? Get American citizens out and bring our troops home,” Montana Republican Rep. Matt Rosendale tweeted.
Not all Republicans share that view.
Sen. Thom Tillis of North Carolina, whose office is working to resettle many of the refugees, shot back, telling The Associated Press: “I would say that they need to do their homework.”
Early surveys find Trump and cultural hard-liners are out of step with the American public. But expect the issue to become more polarized and politicized, just as it has in recent history with Syrian refugees and further back after the Vietnam War. In fact, Americans haven’t been very welcoming to refugees through the years, polls have shown.
3. What does the exit mean for Biden’s approach to the world?
Biden noted that just because the U.S. is pulling back its ground troops from Afghanistan doesn’t mean it is shirking from the world.
“As we close 20 years of war and strife and pain and sacrifice, it’s time to look to the future, not the past,” he said.
But that leaves open questions about how Biden wants to approach that new world — and still combat terrorism.
On terrorism, he said the U.S. will not shrink from the effort, including in Afghanistan, but “we just don’t need to fight a ground war to do it.”
The U.S. showed that aerial capability, using drones to strike alleged ISIS-K planners and a vehicle suspected of carrying explosives. (The Obama administration was criticized for its reliance on drones because of heavy civilian casualties in some cases.)
Biden warned ISIS-K, “We are not done with you yet,” but he said there are new threats on the horizon in the form of economic competition from China and cyberattacks and nuclear proliferation with Russia and others.
“The world is changing,” Biden said, adding, “[W]e can do both: fight terrorism and take on new threats that are here now and will continue to be here in the future.”
4. Will the exit affect Biden politically long term?
During his speech, Biden repeated points he has made before about his reasoning for the withdrawal.
That’s something lots of politicians do when a line tests well and they want to repeat it for people who might not have been paying as close attention. That could be why Biden has now rhetorically posed the question of whether the U.S. would have gone into Afghanistan if al-Qaida had planned the 9/11 attacks from a safe haven in Yemen.
But despite the victorious spin Biden put on the withdrawal, he has undoubtedly taken a political hit — at least in the short run.
The chaotic exit put a dent in the aura of competence he has tried to build. The Biden White House has shown it’s adept at dealing with the foreseen, but it’s the unforeseen where presidential legacies are often forged.
Biden probably won’t get away from the shadow of this withdrawal quickly either. There will be congressional investigations — likely at a time when he would rather be talking about domestic legislation like his bipartisan infrastructure bill.
Ultimately, though, challenges like whether the coronavirus pandemic gets under control and the economy continues to strengthen are likely going to be the most critical factors in long-term success or failure for Biden.
5. Does the American public separate the ultimate decision on leaving Afghanistan from the last couple weeks of the war?
Americans have largely grown tired of being involved in Afghanistan, but there’s a fine line in how Americans are viewing what’s happened in Afghanistan — between the war itself and the withdrawal.
A Pew poll of more than 10,000 Americans in the past week found:
- 54% think getting out of Afghanistan was the right decision.
- But just 27% say the Biden administration has done at least a good job handling the situation in Afghanistan. That includes only 43% of Democrats.
While Biden has accepted responsibility for how the withdrawal was handled, he has also been defensive and spread around plenty of blame, particularly at his predecessor for inking a deal with the Taliban that Biden says ultimately boxed him in.
When the aperture is widened, though, Biden’s team hopes Americans will give him more credit for ending the war than blame for the exit — and that what today might look like excuses will tomorrow be seen as history’s reasons.
What is up with the $450,000 reparations for Illegal Immigrants?
washingtonpost.com, “Why the Biden administration would pay as much as $450,000 to separated immigrant families,” B y Aaron Blake; thepoliticalinsider.com, “Outrage Over Biden Admin Plan To Pay $450,000 To Illegal Immigrants Separated At Border,” BY RUSTY WEISS; realclearpolitics.com, “Sen. Cotton: What About Reparations For Families Who Have Lost Loved Ones From Drugs Coming Across The Border?” By Ian Schwartz; hrw.org, “H.R. 40: Exploring the Path to Reparative Justice in America: Written Testimony of Dreisen Heath Submitted to the US House Committee on the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties,” By Dreisen Heath; nytimes.com, ” What Is Owed: If true justice and equality are ever to be achieved in the United States, the country must finally take seriously what it owes black Americans.” By Nikole Hannah-Jones; floridapolitics.com, “‘Slap in the face’: Ron DeSantis condemns potential $450K payouts to undocumented immigrants: Separated immigrant families don’t worry DeSantis. They’re ‘illegal.’” By A.G. Gancarski;
Why are northern cities paying criminals a salary not to break the law?
brookings.edu, “Should we pay people not to commit crime?” By Jennifer L. Doleac; thefiscaltimes.com, “The New Protection Racket: Paying Criminals Not to Commit Crimes,” By Edward Morrissey; washingtonpost.com, “Cities begin to challenge a bedrock of justice: They’re paying criminals not to kill,” By Aaron C. Davis; psychologytoday.com, “Paying Offenders to Obey the Law: Incentive, bribe, or extortion?” By Stanton E. Samenow; psychologytoday, ” Law Nad Crime,” By Psychology today staff;
Are Vaccine Mandates even Constitutional? What about protracted lockdowns?
constitutioncenter.org, “Are Vaccine Mandates Constitutional?”; constitutioncenter.org, “Current constitutional issues related to vaccine mandates,” By Scott Bomboy; religiondispatches.org, “VACCINE MANDATES ARE CONSTITUTIONAL; RELIGIOUS EXEMPTIONS ARE UNNECESSARY AND HARMFUL,” By Andrew L Seidel; flatheadbeacon.com, “Are Vaccine Mandates Constitutional? The Biden Administration’s proposed vaccine mandate on the federal level is almost guaranteed to be unconstitutional,” BY ABBY MOSCATEL; cato.org, “Federal Vaccine Mandates Pose a Constitutional Triple Threat,” By Ilya Shapiro; publichealth.jhu, ” Can COVID-19 Vaccines Be Mandatory in the U.S. and Who Decides?,” By Joanne Rosen; wpr.org, “What Does The Law Actually Say About Vaccine Mandates? Law Professor Explains What’s Currently Allowed And How Those Laws Might Change.” By Elizabeth Dohms-Harter; aier.org, “Covid-19 Lockdowns Violate the US Constitution,” By Steve Dewey; nationalinterest.org, “Yes, All of the Coronavirus Closures and Lockdowns Are Legal: The right and necessary thing to do.” by John G. Malcolm:
What is going on with our borders?
bushcenter.org, “What’s Happening at the U.S.-Mexico Border?” By Laura Collins and Cris Ramon; immigrationforum.org, “What’s Happening at the Southern Border, Explained.” By Danilo Zak; theatlantic.com, “America’s Immigration Amnesia: Despite recurrent claims of crisis at the border, the United States still does not have a coherent immigration policy.” By Caitlin Dickerson; bbc.news, “President Joe Biden’s ‘big problem’ at the US border,” By Anthony Zurcher;
What is going on with Afghanistan now?
IYOPS.org, “Caged in Despair: What Is Going On In Afghanistan Right Now?” By Mayuri Chaudhuri; spread.ng, “10 Facts About What’s Going On In Afghanistan Right Now: You may have questions about the present situation in Afghanistan— What happened?; When did it start?; Why did it happen?; Who’s to blame?; What’s next?” By Folshade Okeremilekum;
Miscellaneous (Military, Voting, Economy , Religion and etc) Postings