tag:theconversation.com,2011:/ca-fr/topics/trump-administration-33294/articlesTrump administration – La Conversation2024-03-28T12:50:35Ztag:theconversation.com,2011:article/2259912024-03-28T12:50:35Z2024-03-28T12:50:35ZThe amazing story of the man who created the latest narco-state in the Americas, and how the United States helped him every step of the way − until now<p>When Juan Orlando Hernández was <a href="https://apnews.com/article/honduras-president-juan-orlando-hernandez-corruption-trial-7c43423f12ff71859c370be2fc6ac5b0">convicted by a federal jury</a> in Manhattan in early March 2024, it marked a spectacular fall from grace: from being courted in the U.S. as a friendly head of state to facing the rest of his life behind bars, convicted of cocaine importation and weapons offenses.</p>
<p>“Juan Orlando Hernández abused his position as President of Honduras to operate the country as a narco-state where violent drug traffickers were allowed with virtual impunity,” said <a href="https://www.justice.gov/opa/pr/juan-orlando-hernandez-former-president-honduras-convicted-manhattan-federal-court">U.S. Attorney General Merrick Garland</a> following the jury conviction. <a href="https://www.justice.gov/opa/pr/juan-orlando-hernandez-former-president-honduras-convicted-manhattan-federal-court">Anne Milgram</a>, administrator of the Drug Enforcement Administration, added: “When the leader of Honduras and the leader of the Sinaloa Cartel work hand-in-hand to send deadly drugs into the United States, both deserve to be accountable.”</p>
<p>The conviction was a victory for the Justice Department and the DEA. During Hernández’s two terms in office, from 2014 to 2022, he and his acolytes transported more than 400 tons of cocaine into the United States, <a href="https://www.justice.gov/opa/pr/juan-orlando-hernandez-former-president-honduras-convicted-manhattan-federal-court">according to U.S. prosecutors</a>. The former head of state now faces a mandatory sentence of up to 40 years in prison; sentencing is scheduled for June 26. </p>
<p>But there’s more to this story. </p>
<p>As I explore in the book “<a href="https://www.routledge.com/21st-Century-Democracy-Promotion-in-the-Americas-Standing-up-for-the-Polity/Heine-Weiffen/p/book/9780415626378">21st Century Democracy Promotion in the Americas: Standing Up for the Polity</a>,” written in collaboration with the <a href="https://www.open.ac.uk/people/bw4844">Open University’s Britta Weiffen</a>, Honduras is a tragic example of what happens when a country becomes a narco-state. While its people suffer the consequences – the World Bank reports that about <a href="https://www.worldbank.org/en/country/honduras/overview">half the country currently lives under poverty</a> – its leaders grow rich through the drugs trade.</p>
<p>Furthermore, the way Hernández came to power and maintained that position for so long could provide “Exhibit A” in any indictment of U.S. policy toward Central America – and Latin America more generally – over the past few decades. </p>
<h2>Growing ties with cartels</h2>
<p>Up to <a href="https://apnews.com/article/us-supreme-court-arrests-united-states-honduras-extradition-207d739fe73c844ad5cf182eec030a8a">Hernández’s arrest in Tegucigalpa</a>, the Honduran capital, and extradition to the United States in January 2022, his biggest enabler had been none other than the U.S. government itself. </p>
<p>Presidents <a href="https://obamawhitehouse.archives.gov/the-press-office/2014/01/15/president-obama-announces-presidential-delegation-honduras-attend-inaugu">Barack Obama</a>, <a href="https://www.washingtonpost.com/world/the_americas/honduras-president-narcotrafficking-hernandez/2021/02/11/1fa96044-5f8c-11eb-ac8f-4ae05557196e_story.html">Donald Trump</a> <a href="https://obamawhitehouse.archives.gov/the-press-office/2015/06/18/readout-vice-president-bidens-meeting-honduran-president-juan-orlando">and Joe Biden</a> all backed Hernández and allowed him to inflict enormous harm to Honduras and to the United States in the process.</p>
<p>How so? To answer this question, some background is needed. </p>
<p>On June 28, 2009, <a href="https://www.theguardian.com/world/2009/jun/28/honduras-coup-president-zelaya">a classic military coup took place</a> in Honduras. In the wee hours of the morning, while still in his pajamas, President Manuel “Mel” Zelaya was unceremoniously escorted by armed soldiers from his home and <a href="https://www.sandiegouniontribune.com/sdut-lt-honduras-divided-070709-2009jul07-story.html">flown to a neighboring country</a>. The coup leaders alleged that, by calling for a referendum on reforming the Honduran Constitution, the government was moving toward removing the one-term presidential term limit enshrined in the country’s charter and opening the door to authoritarianism.</p>
<p>Initially, then-President Barack Obama <a href="https://www.reuters.com/article/idUSTRE55S5J2/">protested the coup</a> and took measures against those responsible – the right-wing opponents of Zelaya. </p>
<p>But the administration eventually relented and <a href="https://www.reuters.com/article/idUSN07503526/">allowed the coup leaders to prevail</a>, largely due to pressure from Republicans, who saw Zelaya as being <a href="https://www.cfr.org/interview/honduran-politics-and-chavez-factor">too close to Venezuela’s Hugo Chavez</a>, whose leftist agenda was deemed by the GOP as a threat to U.S. interests. </p>
<p>The coup-makers simply ran the clock against the upcoming election date and installed their own candidate in the presidency, <a href="https://www.theguardian.com/world/2009/nov/30/honduras-lobo-president">Porfirio Lobo of the National party</a>, whose son Fabio was also later convicted of cocaine trafficking. </p>
<h2>Washington looks the other way</h2>
<p>Lobo laid the foundations of Honduras as the <a href="https://www.bbc.com/news/world-latin-america-56947595">new century’s first narco-state</a>, allowing drug cartels to infiltrate the highest echelons of government and the security apparatus as cocaine trade became an increasingly central plank of the country’s economy.</p>
<p>All the while, the U.S. <a href="https://www.theguardian.com/commentisfree/2016/jul/08/american-funding-honduran-security-forces-blood-on-our-hands">pumped tens of millions of dollars</a> <a href="https://www.newyorker.com/news/news-desk/should-the-u-s-still-be-sending-military-aid-to-honduras">into building up Honduras’ police and military</a>, despite widespread allegations of being engaged in corruption, complicit in the drugs trade and engaged in <a href="https://www.hrw.org/world-report/2016/country-chapters/honduras">human rights abuses</a>.</p>
<p>The dollars continued to flow when Lobo was succeeded in 2013 by his buddy and fellow National party member, Juan Orlando Hernández.</p>
<p>In 2017, Hernández – an ardent supporter of the 2009 coup – ran for a second term after the Supreme Court of Honduras <a href="https://www.reuters.com/article/idUSKBN0NE2T9/">pronounced this to be perfectly legal</a>.</p>
<p>Many Hondurans believe Hernández <a href="https://www.thenation.com/article/archive/the-honduran-government-is-trying-to-steal-an-election/">stole the November 2017 elections</a>. The vote count was suspended in the middle of the night as Hernández was running behind, and when the polls opened in the morning, he <a href="https://www.thenation.com/article/archive/the-honduran-government-is-trying-to-steal-an-election/">miraculously emerged as a winner</a>.</p>
<p>Despite widespread allegations of election fraud, the U.S. quickly recognized the result, congratulating <a href="https://www.cnn.com/2017/12/22/politics/us-honduras-election-results/index.html">Hernández on his win</a>.</p>
<p>Emboldened by his success, Hernández continued to build up Honduras as the new century’s first narco-state of the Americas.</p>
<p>In 2018, the president’s brother, Juan Antonio “Tony” Hernández, a former member of the Honduran Parliament, was arrested in the United States for his association with the Cartel de Sinaloa, the Mexican drug cartel. This entity valued his services so much that <a href="https://www.justice.gov/usao-sdny/pr/former-honduran-congressman-tony-hern-ndez-sentenced-life-prison-and-ordered-forfeit">they named a particular strain of cocaine after him</a>, stamping the bags as “TH.” Tony Hernández was convicted on four charges in 2019, sentenced to 30 years in prison, and has been in U.S. federal prison ever since. </p>
<p>President Hernández denied any association with the cartel, but the evidence pointed to the contrary. As <a href="https://www.economist.com/the-americas/2021/03/18/a-court-case-rocks-the-president-of-honduras">reported in The Economist</a>, in a New York City trial, one accused drug trafficker alleged that Hernández took bribes for “helping cocaine reach the United States.” Another witness testified that the president had taken two bribes in 2013, before being elected; a former cartel leader testified that the president had been paid $250,000 to protect him from being arrested.</p>
<h2>‘Complicit or gullible’</h2>
<p>Given Hernández’s history in Honduras, the <a href="https://www.washingtonpost.com/world/2024/03/08/juan-orlando-hernndez-honduras-convicted/">repeated claims of U.S. government officials</a> that they simply didn’t know of his crimes ring hollow.</p>
<p>Honduras became a narco-state, in part, because U.S. policymakers looked the other way as it did so. They embraced Hernández because he was ideologically more palatable and subservient to Washington’s wishes compared with his rival, Zelaya. But as the trial verdict in Manhattan makes clear, it was a decision with disastrous consequences.</p>
<p>As one State Department official put it, “Today’s verdict makes all of us who collaborated with (Hernández) <a href="https://www.washingtonpost.com/world/2024/03/08/juan-orlando-hernndez-honduras-convicted/">look either complicit or gullible</a>.” </p>
<p>The latter may be the more charitable assessment. But the truth is more uncomfortable.</p><img src="https://counter.theconversation.com/content/225991/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I am a member of the Party for Democracy in Chile and and affiliated with the Foro de Political Exterior, a Chilean foreign policy think tank.</span></em></p>Washington looked the other way as coup leaders and drugs cartels conspired to turn Honduras into a center of the cocaine trade.Jorge Heine, Interim Director of the Frederick S. Pardee Center for the Study of the Longer-Range Future, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2205742024-03-26T12:40:26Z2024-03-26T12:40:26ZTrump-era tax cuts contributed to a decline in higher ed giving, with fewer Americans donating to colleges and universities<figure><img src="https://images.theconversation.com/files/580516/original/file-20240307-22-jtbky3.jpg?ixlib=rb-1.1.0&rect=165%2C141%2C7710%2C4498&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How many college grads will frequently donate to their alma mater?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/los-angeles-ca-ucla-holds-a-commencement-ceremony-in-pauley-news-photo/1499075648?adppopup=true">Sarah Reingewirtz/MediaNews Group/Los Angeles Daily News via Getty Images</a></span></figcaption></figure><p>Policy changes brought on by the <a href="https://www.irs.gov/tax-reform">Tax Cuts and Jobs Act</a>, which former President Donald Trump signed into law at the end of 2017, appear to have led many small-dollar donors to give less money to colleges and universities – or to stop giving altogether.</p>
<p>Individual donations, whether from graduates or people who didn’t attend those colleges and universities, declined by 4% from US$44.3 billion in the 2017-2018 academic year to $42.6 billion two years later. That’s what <a href="https://scholar.google.com/citations?user=KWFRsxEAAAAJ&hl=en">my colleague</a>, Sungsil Lee, <a href="https://scholar.google.com/citations?user=_iTiG64AAAAJ&hl=en">and I</a> found when <a href="https://doi.org/10.1080/1360080X.2023.2288735">we examined a decade of data</a> regarding charitable contributions to 660 colleges and universities and adjusted the totals for inflation. </p>
<p>We also found that the Trump-era tax reforms led to a 7% decline in the number of individual donors, after controlling for other factors such as enrollment size and tuition. </p>
<p>To estimate the impact of the tax changes, we analyzed data that the Council for Advancement and Support of Education, a nonprofit, collected in its annual <a href="https://www.case.org/research/surveys/case-insights-voluntary-support-education">Voluntary Support of Education Survey</a>.</p>
<p>We analyzed data from 660 public and private colleges and universities from the 2010-2011 to the 2019-2020 academic years – 12-month periods that run from July 1 of a given year through June 30 of the next.</p>
<p>Because we reviewed complete records for the number of donors and the total amount of donations over the decade, we could observe what changes the tax policy reform may have spurred.</p>
<h2>Why it matters</h2>
<p>Many states have essentially <a href="https://www.cbpp.org/research/state-budget-and-tax/unkept-promises-state-cuts-to-higher-education-threaten-access-and">frozen their spending on higher education since 2008</a>, while the cost of running colleges and universities has increased. As a result, public institutions <a href="https://sheeo.org/wp-content/uploads/2019/04/SHEEO_SHEF_FY18_Report.pdf">rely more heavily on the money they get from tuition</a> <a href="https://www.clevelandfed.org/publications/economic-commentary/2017/ec-201705-trends-in-revenues-at-us-colleges-and-universities-1987-2013">and donors</a> than they used to. The declines in both the amount donated by individuals and the number of donors, however, fell more sharply for private institutions than for public ones.</p>
<p>Gifts from individuals, rather than organizations or companies, accounted for <a href="https://www.case.org/resources/voluntary-support-education-key-findings-2020-21">more than 40% of all the money donated</a> in the 2020 academic year – with much of that money coming from very wealthy people. Most of the $21 billion from individuals donations came in very large sums.</p>
<p><a href="https://www.irs.gov/newsroom/heres-a-quick-overview-of-tax-reform-changes-and-where-taxpayers-can-find-more-info">The Trump tax reforms</a>, by sharply increasing the standard deduction, led millions of taxpayers to stop itemizing their tax returns. That means far fewer Americans are deducting charitable donations from their taxable income today.</p>
<p>While more than 43% of all taxpayers with an adjusted gross income between $50,000 and $100,000 <a href="https://www.irs.gov/statistics/soi-tax-stats-individual-income-tax-returns-complete-report-publication-1304">filed itemized tax returns for their 2017 earnings</a>, less than 14% itemized in 2018, according to the IRS.</p>
<p>Those who no longer itemize <a href="https://doi.org/10.1086/708172">have lost a tax break</a>, and for them, every dollar they give to higher ed or any charity has become more expensive.</p>
<p>Although <a href="https://www.case.org/system/files/media/inline/VSE%202022%20Key%20Findings.pdf">approximately 60% of donations to colleges</a> came from foundations and other philanthropic organizations, <a href="https://doi.org/10.2979/phileduc.1.1.02">these donations are highly concentrated</a> and primarily benefit a few dozen prominent universities. The decline of individual donations can be a particularly big problem for small colleges, we found. </p>
<p>To be sure, other factors, such as <a href="https://doi.org/10.1177/0899764018800791">economic trends</a> and <a href="https://doi.org/10.1007/s10734-020-00543-0">the stock market’s performance</a>, can influence giving too. </p>
<h2>What’s next</h2>
<p>We are now researching how colleges and universities are responding to the tax changes and whether their fundraising initiatives and promotional efforts are persuading more individual donors to give – even if they no longer can take advantage of the charitable tax deduction.</p>
<p><em>The <a href="https://theconversation.com/us/topics/research-brief-83231">Research Brief</a> is a short take about interesting academic work.</em></p><img src="https://counter.theconversation.com/content/220574/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jin Lee does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Researchers who analyzed a decade of data detected a reduction in giving after millions of Americans stopped getting a tax break tied to charitable giving.Jin Lee, Associate Professor of Educational Foundations and Leadership, University of Louisiana at LafayetteLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2069822023-08-30T12:17:22Z2023-08-30T12:17:22ZThe federal government turns to local communities to help refugees settle into the US, but community-based programs bring both possibilities and challenges<figure><img src="https://images.theconversation.com/files/544820/original/file-20230825-29-ca2vi1.jpg?ixlib=rb-1.1.0&rect=0%2C11%2C7904%2C5229&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ukrainian refugees attend a job fair on Feb. 1, 2023, in Brooklyn, N.Y.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/ukrainian-refugees-attend-a-job-fair-in-the-brooklyn-news-photo/1246719717?adppopup=true">Angela Weiss/AFP via Getty Images</a></span></figcaption></figure><p>In the <a href="https://welcomecorps.org/twelve-organizations-join-the-welcome-corps/">most significant change to U.S. refugee resettlement</a> in 40 years, the federal government is turning to the public and the private sector to help settle people who have <a href="https://www.un.org/en/global-issues/refugees">fled their home countries</a> because of war, persecution and ongoing armed conflicts. </p>
<p>Today, there are more than <a href="https://news.un.org/en/story/2023/06/1137652">110 million people</a> who have been forced from their homes and countries, the highest number on record. But despite this increased need for immigrants and <a href="https://www.unrefugees.org/refugee-facts/what-is-a-refugee/">refugees to find homes</a>, <a href="https://www.reuters.com/world/europe/eu-looks-tighten-borders-keep-unwanted-migrants-away-2023-02-09/">they are often blocked from entering many countries</a> because of security concerns, rising xenophobia and nativism. </p>
<p>Since 1980, the U.S. has had one of the <a href="https://www.unhcr.org/us/what-we-do/resettlement-united-states">largest resettlement programs in the world</a>. The federal government and <a href="https://www.acf.hhs.gov/orr/grant-funding/resettlement-agencies">10 nonprofit organizations have worked together</a> to give immigrants and refugees the services they need to resettle. But recent <a href="https://www.science.org/doi/10.1126/sciadv.1700812">controversies</a> as well as <a href="https://www.washingtonpost.com/immigration/trump-cuts-refugee-cap/2020/10/01/a5113b62-03ed-11eb-8879-7663b816bfa5_story.html">cutbacks under the Trump administration</a> have led government officials and their partners to <a href="https://www.npr.org/2023/01/19/1150073899/a-new-private-sponsorship-program-lets-everyday-americans-help-refugees-settle-i#:%7E:text=Food-,A%20new%20private%20sponsorship%20program%20lets%20everyday%20Americans%20help%20refugees,of%20regular%20people%20sponsor%20refugees">determine that a new, complementary approach</a>, one that pulls in help from communities across the country, is necessary.</p>
<p>As <a href="https://scholar.google.com/citations?user=D7iaMQEAAAAJ&hl=en">resettlement researchers</a>, we have <a href="https://scholar.google.com/citations?user=k2Sz3NMAAAAJ&hl=en&oi=ao0">conducted research</a> on <a href="https://www.migrationpolicy.org/research/trump-executive-order-refugees-and-travel-ban-brief-review">recent changes to the U.S. program</a>. Our research indicates that, while not a total solution, new community sponsorship programs – in which average citizens, acting as refugee sponsors, help refugees settle into the community – may address current flaws, such as lack of funding, in the traditional resettlement program. </p>
<h2>Community-based refugee sponsorship programs</h2>
<p>The Biden administration has introduced <a href="https://welcomecorps.org/">several initiatives</a> to work alongside the longstanding resettlement program that allow these citizen sponsors to <a href="https://www.sponsorcircles.org/">directly resettle</a> <a href="https://www.uscis.gov/ukraine">refugees in their communities</a> by raising private funds for their living expenses <a href="https://welcomecorps.org/resources/core-services/">and connecting refugees with housing, transportation and employment</a>. In the newly announced <a href="https://welcomecorps.org/">Welcome Corps program</a>, for example, sponsors have to raise $2,375 for each refugee and <a href="https://welcome.us/become-a-sponsor/what-is-the-welcome-corps">commit three months of financial support, as well as up to 12 months of social support</a>. Community sponsorship projects, similar to Welcome Corps, have been piloted <a href="https://communitysponsorshiphub.org/catalyst-fund/grantees/">in more than 40 states and 90 communities</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/544824/original/file-20230825-21-hk37fo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman wearing a hijab sits at a desk and looks down at a piece of paper in her hand. Two people wearing winter coats sit across from her with their backs to the camera." src="https://images.theconversation.com/files/544824/original/file-20230825-21-hk37fo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/544824/original/file-20230825-21-hk37fo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/544824/original/file-20230825-21-hk37fo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/544824/original/file-20230825-21-hk37fo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/544824/original/file-20230825-21-hk37fo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/544824/original/file-20230825-21-hk37fo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/544824/original/file-20230825-21-hk37fo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Rohingya refugee Rohana Ahmed works as a caseworker and translator on Jan. 10, 2019, at the Rohingya Cultural Center of Chicago, where the largest number of Rohingya refugees have resettled.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rohingya-refugee-rohana-ahmed-works-as-a-case-worker-and-news-photo/1082816620?adppopup=true">Allison Joyce/Getty Images</a></span>
</figcaption>
</figure>
<h2>Resettlement program successes</h2>
<p>Forms of community sponsorship have been successful in the past. For example, throughout the 1960s and 1970s, the U.S. welcomed <a href="https://www.nbcnews.com/news/asian-america/largest-u-s-refugee-group-struggling-poverty-45-years-after-n1150031">more than 1 million refugees</a> from Southeast Asia through community sponsorship.</p>
<p>But by the 1980s, an economic recession and <a href="https://content.time.com/time/subscriber/article/0,33009,925365,00.html">shifts in public attitudes toward refugees</a> reduced the popularity of community sponsorship. Some sponsors indicated a <a href="https://www.niskanencenter.org/wp-content/uploads/old_uploads/2016/04/PrivateRefugeeHistory.pdf">preference for certain racial or religious groups</a>, while others faced resentment when certain refugees <a href="https://global.oup.com/academic/product/the-strangers-in-our-midst-9780197515884?cc=us&lang=en&">were perceived to be less appreciative</a> than expected.</p>
<p>Around the same time, Congress <a href="https://www.archivesfoundation.org/documents/refugee-act-1980/">passed the 1980 Refugee Act</a> to standardize resettlement and shift from the community sponsorship model to the <a href="https://www.acf.hhs.gov/orr/grant-funding/resettlement-agencies">professional resettlement agencies</a> that are still active. And a new <a href="https://www.acf.hhs.gov/orr/policy-guidance/family-self-sufficiency-plan-requirements">government-imposed focus on economic self-sufficiency</a> required refugees to find employment and move off government benefits as soon as possible, forcing them into low-wage, entry-level jobs, with little support to navigate the job market or society.</p>
<h2>Government and volunteer partnership</h2>
<p>The <a href="https://www.uscis.gov/humanitarian/refugees-and-asylum/usrap">traditional resettlement program</a> is not without flaws. Over time, federal funding for resettlement services has dwindled. <a href="https://www.journals.uchicago.edu/doi/10.1086/702182">Some scholars have</a> <a href="https://academic.oup.com/jrs/article-abstract/34/3/3113/6126385">criticized the program’s focus on self-sufficiency as inadequate</a> to support refugees’ initial and long-term needs. And cities and states <a href="https://link.springer.com/book/10.1007/978-981-15-6386-7">new to the program</a> have been hobbled by their inexperience in resettling refugees.</p>
<p>People who would like to see more refugees settled in the U.S. <a href="https://www.foreignaffairs.com/united-states/americas-refugee-revolution">tout new community sponsorship programs</a> as a solution to problems with the existing program. In the new <a href="https://welcomecorps.org/">Welcome Corps</a> program, for example, sponsor groups raise private funds to provide services, reducing the need for federal funding. <a href="https://doi.org/10.1080/1369183X.2023.2245149">Research indicates</a> that sponsor groups may be able to help refugees with integration. But arrangements in which average citizens, not organizations, direct refugees’ settlement in the country can <a href="https://www.tandfonline.com/doi/full/10.1080/1369183X.2023.2245149">create unequal relationships</a> between the so-called sponsors and refugees. In our view, sponsorship <a href="https://www.newyorker.com/news/daily-comment/a-national-experiment-in-refugee-resettlement">outsources federal responsibilities</a> for resettlement to private citizens, which sidesteps the nation’s humanitarian commitments.</p>
<p>We have conducted interviews and surveys with resettled refugees, community sponsors and resettlement practitioners, including agency staff and local officials, as part of larger and ongoing studies of resettlement in the U.S.</p>
<p>What we have found, so far, is that there is a great deal of confusion among resettlement workers and new sponsors – about the different kinds of refugees, how they come to the U.S., what rights they have to work, what their legal status might be, and who they can turn to when they need assistance. Similarly, we found high levels of confusion among sponsors regarding who they can rely on to solve problems and get help. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/544826/original/file-20230825-17-505ob3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two women stand on a street holding large signs while people stand behind them." src="https://images.theconversation.com/files/544826/original/file-20230825-17-505ob3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/544826/original/file-20230825-17-505ob3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/544826/original/file-20230825-17-505ob3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/544826/original/file-20230825-17-505ob3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/544826/original/file-20230825-17-505ob3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/544826/original/file-20230825-17-505ob3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/544826/original/file-20230825-17-505ob3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Rallygoers display signs with various languages and messages to show their support for refugees on Nov. 28, 2015, in Hartford, Conn.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rally-goers-display-creative-signs-with-various-languages-news-photo/525088828?adppopup=true">NurPhoto/NurPhoto via Getty Images</a></span>
</figcaption>
</figure>
<p>The federal government is trying to give community sponsor groups specific guidance about where to get the help they may need. But our research shows that new sponsors often turn to the traditional resettlement agencies with their questions, which creates more work for resettlement agencies that already have heavy workloads. Community sponsorship programs were intended to function alongside the traditional resettlement program – not to add to the workload of resettlement agencies.</p>
<p>Our preliminary research – which one of us presented to national resettlement organizations and governmental representatives in August 2023 – suggests that community sponsorship requires a significant time commitment, ranging from three to 12 months, and many new sponsors need additional guidance to navigate the period successfully. These hurdles may prevent citizens from getting involved in the program. </p>
<p>Without a reliable network of people willing to help resettle refugees and a steady way to pull in more of these volunteers, the future of community sponsorship programs may be uncertain.</p><img src="https://counter.theconversation.com/content/206982/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emily Frazier receives funding from the Russell Sage Foundation and the Social Science Research Council. </span></em></p><p class="fine-print"><em><span>Pablo Bose receives funding from the National Science Foundation. He is affiliated with the American Association of Geographers where he serves as a National Councillor. </span></em></p>Citizens are helping refugees get settled in the US, but the lack of standard federal rules makes the process tricky for both refugees and citizens to navigate.Emily Frazier, Assistant Professor of Human Geography and Sustainability, Missouri State UniversityPablo Bose, Professor of Geography and Geosciences, University of VermontLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2028962023-04-01T11:14:25Z2023-04-01T11:14:25ZMigrant deaths in Mexico put spotlight on US policy that shifted immigration enforcement south<figure><img src="https://images.theconversation.com/files/518815/original/file-20230331-135-vcnrl7.jpg?ixlib=rb-1.1.0&rect=0%2C40%2C6659%2C4426&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mourners gather outside a detention center in Ciudad Juarez.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/march-2023-mexico-ciudad-juarez-people-mourn-and-demand-news-photo/1249814159?adppopup=true">David Peinado/picture alliance via Getty Images</a></span></figcaption></figure><p>The fire-related <a href="https://abcnews.go.com/International/wireStory/mexico-president-assigns-blame-migrant-tragedy-98273746">deaths of at least 39 migrants</a> in a detention facility in Ciudad Juarez, just across the U.S. border with Mexico, will likely be found to have had several contributing factors.</p>
<p>There was the immediate cause of the blaze, the mattresses apparently <a href="https://www.dailymail.co.uk/news/article-11912087/Fire-killed-39-people-migrant-center-caused-protesters-lighting-mattresses.html">set alight by desperate men</a> in the center to protest their imminent deportation. And then there is the apparent role of guards, <a href="https://www.politico.com/news/2023/03/29/video-shows-guards-walking-away-during-fire-that-killed-38-migrants-00089415">seen on video walking away</a> from the blaze.</p>
<p>But as an <a href="https://law.ucdavis.edu/people/raquel-aldana">expert on immigration policy</a>, I believe there is another part of the tragedy that can’t be overlooked: the decadeslong immigration enforcement policies of the U.S. and Mexican governments that have seen the number of <a href="https://www.globaldetentionproject.org/countries/americas/mexico">people kept in such facilities skyrocket</a>. </p>
<p>In the aftermath of the fire, Felipe González Morales, the United Nations special rapporteur for human rights of migrants, <a href="https://twitter.com/UNSR_Migration/status/1640721437282426880">commented on Twitter</a> that the “extensive use of immigration detention leads to tragedies like this one.”</p>
<p>And the United States is a big part of that “extensive use” on both sides of the border.</p>
<h2>Lengthy stays and fear of deportation</h2>
<p>Today Mexico maintains a very large detention system. It <a href="https://www.wsj.com/articles/deadly-fire-spurs-scrutiny-of-mexican-immigration-detention-centers-382ebcae">comprises several dozen short- and long-term detention centers</a>, housing <a href="https://sjmmexico.org/estadistica-migratoria/">more than 300,000 people</a> in 2021.</p>
<p>By comparison, the U.S. immigration detention system is the world’s largest. It <a href="https://immigrationforum.org/wp-content/uploads/2021/01/Immigration-Detention-Factsheet_FINAL.pdf">maintains 131 facilities</a> comprised of government-owned Service Processing Centers, privately run Contract Detention Facilities, and a variety of other detention facilities, including prisons.</p>
<p>Mexico <a href="https://www.globaldetentionproject.org/immigration-detention-in-mexico-between-the-united-states-and-central-america">has laws in place that are supposed to guarantee</a> that migrants in detention only endure brief stays and are afforded due process, such as access to lawyers and interpreters. The law also states that they should have adequate conditions, including access to education and health care.</p>
<p>But in reality, what migrants often face at these detention centers is <a href="https://www.nbcnews.com/news/latino/overcrowding-abuse-seen-mexico-migrant-detention-center-n1018231">poor sanitary conditions, overcrowding</a>, <a href="https://www.npr.org/2023/03/30/1166947456/ciudad-juarez-detention-fire-conditions-migrants-treatment">lengthy stays and despair</a> over the near certainty of deportation. </p>
<p>The fire in Ciudad Juárez was started after the migrants – men from Guatemala, Honduras, Venezuela, El Salvador, Colombia and Ecuador – learned that they were to be <a href="https://apnews.com/article/mexico-fire-migrant-facility-dead-eea0b6efafd77f9868ef27ed1cf572b3">sent back to those nations</a>, <a href="https://www.latimes.com/world-nation/story/2023-03-28/mexico-border-dozens-dead-migrant-center-fire">according to</a> Mexican President Andrés Manuel López Obrador. Deportation would have ended their hopes of asylum in the U.S.</p>
<h2>US immigration enforcement shifts south</h2>
<p>Why Mexico was doing the deporting, not the U.S., has a great deal to do with how the two nations have collaborated to control illegal migration headed to the U.S., especially since the turn of the century. In the wake of the 9/11 terrorist attacks of 2001, U.S. authorities increasingly viewed <a href="https://www.migrationpolicy.org/article/two-decades-after-sept-11-immigration-national-security">immigration as a security issue</a> – a pivot that affected not only U.S. domestic legislation on immigration but its bilateral relations with Mexico. </p>
<p>In 2006, Mexican President Felipe Calderón joined efforts with President George W. Bush <a href="https://crsreports.congress.gov/product/pdf/IF/IF10578/19">on the Merida Initiative</a> to wage a war on drugs in Mexico, build a “21st Century U.S.-Mexican border” and shift immigration enforcement into Mexican territory.</p>
<p>These efforts, supported by <a href="https://www.washingtonpost.com/politics/2021/03/15/us-has-spent-billions-trying-fix-mexicos-drug-war-its-not-working/">massive U.S. funding</a>, continue today.</p>
<p>With this money, Mexico established <a href="https://crsreports.congress.gov/product/pdf/IF/IF10578/19">naval bases on its rivers, security cordons and drone surveillance</a>. It also set up mobile highway checkpoints and biometric screening at migrant detention centers, all with the goal of detecting, detaining and deporting largely <a href="https://crsreports.congress.gov/product/pdf/IF/IF10578/19">Central American migrants attempting to reach the United States</a>.</p>
<p>The intent was to shift U.S. immigration enforcement south of the border. In that respect, the policy has been successful. Figures from the Guatemalan Institute of Migration show that of the 171,882 U.S.-bound migrants <a href="https://www.bloomberglinea.com/english/number-of-central-american-migrants-deported-from-us-rose-by-over-300-in-2022/">deported to the Northern Triangle region of Central America – El Salvador, Honduras and Guatemala –</a> in 2022, Mexico sent back 92,718, compared to the U.S.’s 78,433.</p>
<h2>Prevention through deterrence is not working</h2>
<p>Mexico’s detentions and deportations have done little to stop the flow of migrants entering the country en route to the U.S.</p>
<p>Researchers at the University of Texas at Austin estimate that from 2018 to 2021, an <a href="https://crsreports.congress.gov/product/pdf/IF/IF11151">annual average of 377,000 migrants</a> entered Mexico from the Northern Triangle region. The vast majority were headed to the U.S. to escape violence, drought, natural disasters, corruption and extreme poverty.</p>
<p>Migrants are passing through Mexico in the thousands from multiple other countries as well, fleeing conditions in countries such as <a href="https://www.cnn.com/2022/07/15/politics/migrants-yuma-arizona-mexico-border/index.html">Haiti and Venezuela</a>, as <a href="https://www.pbs.org/newshour/world/record-number-of-african-migrants-coming-to-mexican-border">well as African nations</a>. </p>
<p>Meanwhile, recent years have seen a toughening of border enforcement policies targeting asylum seekers at the U.S.-Mexico border. This started under the Trump administration but has been continued by President Joe Biden <a href="https://joebiden.com/immigration/">despite the Democrat’s campaign promises</a> of a more “humane” immigration system. </p>
<p>Since 2019, Washington has adopted a <a href="https://theconversation.com/bidens-border-crackdown-explained-a-refugee-law-expert-looks-at-the-legality-and-impact-of-new-asylum-rule-200501">series of policies</a> that have either forced migrants presenting themselves at the U.S. southern border to apply for asylum while remaining in Mexico or expelled them back to their countries of origin.</p>
<p>This has created a bottleneck of hundreds of thousands of migrants at Mexico’s border towns and swelled the numbers entering detention facilities in Mexico.</p>
<p>By 2021, the number of immigration detainees in such centers had reached 307,679, <a href="https://sjmmexico.org/estadistica-migratoria/">nearly double what it had been</a> in 2019.</p>
<p>As a result, many centers, including the one implicated in the fire, have <a href="https://www.pbs.org/newshour/world/overcrowding-and-abuse-witnessed-at-mexico-migrant-detention-center">suffered from overcrowding and deterioration conditions</a>. <a href="https://www.globaldetentionproject.org/immigration-detention-in-mexico-between-the-united-states-and-central-america">A 2021 report by the immigration research center Global Detention Project</a> extensively documented how the conditions and practices of Mexico’s immigration centers had led to widespread protest by detained migrants. Rioting and protests have become more common, with incidents taking place at facilities in <a href="https://apnews.com/article/mexico-fire-migrant-facility-dead-eea0b6efafd77f9868ef27ed1cf572b3">Tijuana and the southern city of Tapachula</a> in recent months.</p>
<h2>No end in sight</h2>
<p>The tragedy in Ciudad Juárez is unlikely to affect the steady flow of migrants entering Mexico in the hope of making it north of the border. For many, the options to take a different path to safety in the U.S. are simply not there. </p>
<p>Only a few can apply for refugee status in the U.S. from abroad, and the waits are long. Biden’s “<a href="https://www.uscis.gov/forms/explore-my-options/humanitarian-parole">humanitarian parole</a>” program – which allows entry to the U.S. for up to 30,000 people a month – is only an option for those living in a handful of nations. It is also being challenged in court. And for the lucky few who manage to file for U.S. asylum, denial rates remain high – <a href="https://trac.syr.edu/immigration/reports/667/">63% in 2021</a> – while immigration court backlogs mean that fewer cases are being decided. <a href="https://trac.syr.edu/immigration/reports/667/">Only 8,349 asylum seekers</a> were actually granted asylum by U.S. immigration judges in 2021.</p>
<p>Meanwhile, the Biden administration’s <a href="https://theconversation.com/bidens-border-crackdown-explained-a-refugee-law-expert-looks-at-the-legality-and-impact-of-new-asylum-rule-200501">incoming “transit ban</a>” will mean anyone seeking asylum at the U.S. southern border from May 11, 2023 without having first applied for asylum en route, will be rapidly deported, many to Mexico.</p>
<p>The likelihood is the policy will only worsen the migrant processing bottleneck in Mexico, and add pressure on the country’s already volatile detention facility system.</p><img src="https://counter.theconversation.com/content/202896/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Raquel Aldana does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>‘Extensive use’ of detention led to tragic fire, according to the UN special rapporteur for migrant rights. US-Mexico policy has fueled the growth.Raquel Aldana, Associate Vice Chancellor for Academic Diversity and Professor of Law, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2005012023-02-23T20:13:17Z2023-02-23T20:13:17ZBiden’s border crackdown explained – a refugee law expert looks at the legality and impact of new asylum rule<figure><img src="https://images.theconversation.com/files/512026/original/file-20230223-26-ranwy5.jpg?ixlib=rb-1.1.0&rect=0%2C134%2C6000%2C3853&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Seeking shelter and asylum on the US-Mexico border.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/USAsylumPayingForASponsor/3a0ca617af9d4b468b65c0db1880250e/photo?Query=US%20mexico%20border&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=12461&currentItemNo=8">AP Photo/Gregory Bull)</a></span></figcaption></figure><p><em>Anticipating a potential surge of migrants at the southern border, the Biden administration on Feb. 21, 2023, <a href="https://www.nytimes.com/2023/02/21/us/biden-asylum-rules.html">announced a crackdown</a> on those seeking asylum after unlawfully entering the U.S.</em></p>
<p><em>The proposed rule change – which would see the rapid deportation of anyone who had not first applied for asylum en route to the U.S. – has been <a href="https://www.aila.org/advo-media/press-releases/2023/aila-condemns-biden-administrations-push">condemned by immigration rights groups</a>, which claim it runs counter to the “humane immigration system” that Joe Biden <a href="https://joebiden.com/immigration/#">promised while campaigning</a> for the White House.</em></p>
<p><em>The Conversation asked Karen Musalo, <a href="https://cgrs.uchastings.edu/about/bio/karen-musalo#:%7E:text=Professor%20Karen%20Musalo%2C%20Bank%20of,at%20UC%20Law%20San%20Francisco.">an expert on refugee law</a> at the University of California College of the Law, San Francisco, to explain what the new rule entails, what its impact will be and why it is so controversial.</em></p>
<h2>What is the new policy?</h2>
<p>The Biden administration’s <a href="https://public-inspection.federalregister.gov/2023-03718.pdf">new rule</a> – which is set to come into force on May 11 – will bar from asylum all non-Mexican migrants who arrive at the southern U.S. border without having first sought and been denied asylum in at least one of the countries they passed through on their journey.</p>
<p>The only migrants exempted from this rule are those who use a U.S. government app, <a href="https://www.cbp.gov/about/mobile-apps-directory/cbpone">CBP One</a>, to make an appointment to apply for asylum at an official port of entry. All others will be subject to a presumption of ineligibility unless they can demonstrate “exceptionally compelling circumstances,” such as a medical emergency – which they will have to prove during a rapid <a href="https://www.americanimmigrationcouncil.org/research/primer-expedited-removal">screening process</a> in a border holding cell.</p>
<p>The policy – which immigrant rights <a href="https://justiceactioncenter.org/jac-condemns-bidens-plans-to-revive-trump-era-asylum-ban/">advocates</a>, <a href="https://www.menendez.senate.gov/newsroom/press/menendez-booker-lujan-padilla-joint-statement-on-biden-administrations-proposed-asylum-transit-ban-rule">congressional</a> <a href="https://www.menendez.senate.gov/imo/media/doc/letter_to_president_biden_on_the_administrations_border_policies.pdf">leaders</a> and <a href="https://www.interfaithimmigration.org/2023/02/22/as-biden-moves-forward-with-asylum-ban-faith-groups-and-advocates-gathered-to-demand-restored-access-to-asylum/">faith groups</a> are calling an “asylum ban” or “transit ban” – is almost identical to one implemented by the Trump administration in 2019. The Trump-era rule was later <a href="https://www.aclu.org/cases/east-bay-v-barr">struck down</a> by the courts as unlawful.</p>
<h2>Why is the new rule being proposed now?</h2>
<p>The Biden administration is concerned that the expiration of a pandemic-era rule will lead to <a href="https://www.axios.com/2022/03/17/biden-border-mexico-migrants-title-42">greater numbers of immigrants</a> at the southern border.</p>
<p>In March 2020, the Trump administration totally closed the border to asylum seekers in a <a href="https://www.pbs.org/newshour/nation/what-is-title-42-and-what-does-it-mean-for-immigration-at-the-southern-border">policy referred to as Title 42</a>. It justified the closure as necessary to protect public health during the COVID-19 pandemic. However, these health concerns were <a href="https://doi.org/10.1056/NEJMp2200274">just a pretext</a>; it has been <a href="https://www.cbsnews.com/news/top-cdc-scientist-said-covid-era-health-policy-used-to-expel-migrants-unfairly-stigmatized-them/">well documented</a> that high-level officials in the Centers for Disease Control and Prevention <a href="https://www.cbsnews.com/news/cdc-official-told-congress-migrant-expulsion-policy-not-needed-to-contain-covid/">were opposed</a> to the policy and acceded only under <a href="https://apnews.com/article/virus-outbreak-pandemics-public-health-new-york-health-4ef0c6c5263815a26f8aa17f6ea490ae">intense White House pressure</a>.</p>
<p>Turning away all asylum seekers in this way was totally unprecedented, and <a href="https://www.justsecurity.org/70192/the-trump-administrations-indefensible-legal-defense-of-its-asylum-ban/">inconsistent with</a> U.S. domestic and international legal obligations.</p>
<p>Biden <a href="https://joebiden.com/immigration/">campaigned on promises</a> to restore a humane asylum system. But on assuming the presidency <a href="https://newrepublic.com/article/165439/biden-title-42-trump-migrant-expulsion-mexico">he continued</a> Title 42 and even <a href="https://www.nbcnews.com/politics/immigration/title-42-block-nicaraguans-cubans-haitians-rcna64418">expanded it</a> to include individuals from additional countries.</p>
<p>Immigration rights advocates <a href="https://apnews.com/article/health-united-states-covid-government-and-politics-32251064466f9ed6b51e55c1bbd18680">brought successful legal challenges</a> to terminate the policy, while attorneys general of Republican-led states <a href="https://litigationtracker.justiceactioncenter.org/cases/arizona-v-cdc-az-title-42-termination-district-court">sued to keep it in place</a>. Finally, in January 2023, the Biden administration <a href="https://www.nytimes.com/2023/01/30/us/politics/biden-covid-public-health-emergency.html">announced</a> that on May 11 it would end the coronavirus health emergency, which had provided the legal authority for the border closure.</p>
<p>This means Title 42 also comes to an end on May 11. Unwilling to restore access to asylum as had existed for 40 years before former President Donald Trump’s border closure, the Biden administration proposed the new rule.</p>
<h2>Is the policy legal?</h2>
<p>In 2019, the Trump administration proposed a rule very similar to that put forth by Biden, prohibiting asylum for migrants who did not first apply in countries of transit. The <a href="https://casetext.com/case/covenant-v-trump-2">courts struck</a> <a href="https://s3.documentcloud.org/documents/6981578/East-Bay-2020-07-06.pdf">down the policy</a> for violating the 1980 Refugee Act, which guarantees the right of all migrants who reach the United States to apply for asylum.</p>
<p>A bipartisan Congress passed the Refugee Act to bring the U.S. into compliance with its international obligations under the U.N.’s <a href="https://www.unhcr.org/en-us/1951-refugee-convention.html">1951 Refugee Convention</a> and its 1967 Protocol, which prohibit returning refugees to any country where their lives or freedom would be threatened.</p>
<p>In striking down the Trump-era rule, the 9th U.S. Circuit Court of Appeals <a href="https://s3.documentcloud.org/documents/6981578/East-Bay-2020-07-06.pdf">pointed out</a> that the Refugee Act is very specific about the circumstances under which the government can deny asylum for failure to apply in a transit country. Under the act’s “safe third country” provision, that can happen only if the transit country is safe and has both a robust asylum system and a formal treaty with the United States agreeing to safe third-country status. The court found the Trump administration lacked all three conditions for imposing such a ban.</p>
<p>The Biden rule is somewhat different from Trump’s. It does not apply to individuals who schedule an asylum appointment at ports of entry through the CBP One app. </p>
<p>But this does not make the policy lawful. The Refugee Act expressly permits asylum seekers to access protection anywhere along the border – not just at ports of entry. And it does not require appointments to be made in advance.</p>
<p>In addition, CBP One has been plagued with <a href="https://www.marketplace.org/shows/marketplace-tech/u-s-border-protection-app-causes-tech-headaches-for-asylum-seekers/">significant technical</a> problems, preventing many from even making appointments, and has raised serious equity and <a href="https://www.markey.senate.gov/news/press-releases/senator-markey-calls-on-dhs-to-ditch-mobile-app-riddled-with-glitches-privacy-problems-for-asylum-seekers">privacy concerns</a>.</p>
<p>And more importantly, there is no getting around the fact that most countries of transit neither are safe for migrants nor have functioning asylum systems. </p>
<figure class="align-center ">
<img alt="A girl holds her stuffed animal high above the water as migrants wade across a river." src="https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Migrants wade across the Rio Grande from Texas to Mexico to avoid deportation.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ExodustoAmerica-AsylumBan/389eb605e83b414fb1a7ba7d554742b2/photo?Query=US%20deporting%20asylum&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=244&currentItemNo=2">AP Photo/Felix Marquez</a></span>
</figcaption>
</figure>
<p>Asylum seekers arriving at the U.S. southern border pass through Mexico, which is <a href="https://humanrightsfirst.org/library/human-rights-stain-public-health-farce/">notoriously</a> <a href="https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/mexico/">dangerous</a> for migrants, and countries such as <a href="https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/nicaragua/">Nicaragua</a>, <a href="https://crsreports.congress.gov/product/pdf/R/R47083">El Salvador</a>, <a href="https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/guatemala/">Guatemala</a> and <a href="https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/honduras/">Honduras</a>, which are similarly unsafe and do not have <a href="https://www.justsecurity.org/84977/bidens-embrace-of-trumps-transit-ban-violates-us-legal-and-moral-refugee-obligations/">anything approaching functioning asylum systems</a>.</p>
<p>Costa Rica, the one transit country in the region with an <a href="https://freedomhouse.org/country/costa-rica/freedom-world/2022">admirable human rights record</a> and an established asylum system, is currently receiving 10 times the number of asylum seekers as the United States on a per capita basis, and its system is <a href="https://reporting.unhcr.org/costarica#:%7E:text=Costa%20Rica%20has%20ranked%20among,from%20January%20to%20mid%2D2022">completely overwhelmed</a>. To expect Costa Rica to do more, and take in the refugees the U.S. turns away, is not reasonable or fair.</p>
<h2>What will be the policy’s impact?</h2>
<p>This rule will deny thousands of migrants fleeing persecution their right to seek asylum at the United States’ southern border. They will be returned to Mexico, where <a href="https://www.hrw.org/news/2022/06/06/mexico-asylum-seekers-face-abuses-southern-border">human rights organizations have documented</a> high levels of violence and exploitation of migrants, or deported to their home countries.</p>
<p>Beyond the individual human impact, the implementation of this rule will send the wrong signal to other countries that have – like the United States – ratified international refugee treaties and passed laws committing to protect those fleeing persecution.</p>
<p>The message is that flouting legal obligations is acceptable, as is the outsourcing of refugee protection to smaller countries with far less resources. The exodus of refugees from Ukraine and <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/03/26/remarks-by-president-biden-on-the-united-efforts-of-the-free-world-to-support-the-people-of-ukraine/">U.S. efforts to encourage European countries</a> to accept those fleeing the conflict underscore the importance of encouraging nations to take in refugees. Leading by bad example will only undermine that principle.</p><img src="https://counter.theconversation.com/content/200501/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Karen Musalo receives funding from National Science Foundation in the past.
I am a full-time law professor and director of the law school's Center for Gender & Refugee Studies.</span></em></p>With the expiration of a pandemic-era restriction, the Biden administration is set to impose a new rule to curtail immigration at the US-Mexico border.Karen Musalo, Professor of International Law, University of California College of the Law, San FranciscoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1979732023-01-25T06:12:04Z2023-01-25T06:12:04ZHow the ‘circus’ became the metaphor of choice in political rhetoric<figure><img src="https://images.theconversation.com/files/504754/original/file-20230116-22-wieze0.jpg?ixlib=rb-1.1.0&rect=14%2C7%2C1188%2C725&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Circus by Georges Seurat (1891).</span> <span class="attribution"><a class="source" href="https://www.musee-orsay.fr/en/artworks/le-cirque-542">Musée d’Orsay, Dist. RMN-Grand Palais / Patrice Schmidt</a></span></figcaption></figure><p>In his 2023 <a href="https://labour.org.uk/press/keir-starmer-new-years-speech/">New Year’s Speech</a>, Labour leader Keir Starmer reiterated his criticism of the “Tory circus” as he lamented the apparently unbreakable but entirely avoidable cycle of crises at Westminster. “Nothing has changed,” Starmer said, “but the circus moves on. Rinse and repeat.”</p>
<p>The performance metaphor has become one of Starmer’s stock insults of the Conservative party. He referred to his political opponent’s “ridiculous, chaotic circus” in an <a href="https://www.theguardian.com/politics/2022/oct/23/keir-starmer-hits-out-ridiculous-chaotic-circus-tory-contest-leadership-labour">interview with Laura Kuenssberg</a> in October 2022.</p>
<p>At the start of 2023, the state of affairs in the US was considered equally circus-like. On January 4, <a href="https://www.newsweek.com/republicans-savaged-clowns-after-mccarthys-failed-speaker-bid-1771076">Newsweek reported</a> on the fiasco surrounding confirmation of a Republican speaker in the House of Representatives by tracking the hashtag <a href="https://twitter.com/search?q=%23GOPClownShow&src=typeahead_click">#GOPClownShow</a>. The following day, an <a href="https://www.washingtonpost.com/opinions/2023/01/05/mccarthy-speaker-vote-maga-circus/">opinion piece in the Washington Post</a> suggested that the “Republican speaker circus was a good argument for voting Democrat”.</p>
<p>These recent examples demonstrate a centuries-old link in the popular imagination between politics and the circus.</p>
<h2>The history of politics and the circus</h2>
<p>In the late 18th century, the founder of the modern circus, Philip Astley, was famously (or infamously, depending on your politics) responsible for <a href="https://www.dib.ie/biography/astley-philip-a0255">hysterical, anti-dissident and patriotic pantomimes</a> that provoked violent reactions among audiences at his amphitheatre in Dublin, Ireland.</p>
<p>Astley was among the first performance practitioners to use the modern circus as a vehicle for social and political commentary. For the past 50 years, left-wing political activism has driven the <a href="https://social-circus.com/">social circus movement</a>, which uses “the power of the arts as a tool for human development and social change”.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/e6diQz3tNwc?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Who was Philip Astley? A video from the Philip Astley Project, managed by Staffordshire University.</span></figcaption>
</figure>
<p>By contrast, Starmer’s recent comments – and those in the American press about US politics – betray no interest in the actual “big top” circus. Rather, they signal the expressive potential of the image of the circus in political discourse – something that is far older than Astley’s pantomimes and relates to the original use of the term “circus” in the classical world.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/504755/original/file-20230116-20-ed6p5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Pencil portrait of a bust of Juvenal." src="https://images.theconversation.com/files/504755/original/file-20230116-20-ed6p5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/504755/original/file-20230116-20-ed6p5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=791&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504755/original/file-20230116-20-ed6p5u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=791&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504755/original/file-20230116-20-ed6p5u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=791&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504755/original/file-20230116-20-ed6p5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=994&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504755/original/file-20230116-20-ed6p5u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=994&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504755/original/file-20230116-20-ed6p5u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=994&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A portrait of Juvenal, S. H. Gimber (1837).</span>
<span class="attribution"><a class="source" href="https://archive.org">Archive.org</a></span>
</figcaption>
</figure>
<p>The Roman circus was a venue for chariot racing and gladiatorial contests. Classicist <a href="https://classics.wustl.edu/people/cathy-keane">Catherine Keane</a> argues that it was specifically the wordlessness of these public spectacles that appealed to the poet Juvenal as he composed his Satires in the second century. Unlike language-based performance, where meanings seemed fixed, you could effectively make the image of the circus mean anything you wanted it to.</p>
<p>In one of Juvenal’s most enduring phrases, <em>panem et circenses</em>, he suggested that the needs of the modern citizen were no more sophisticated than <a href="https://people.howstuffworks.com/bread-circuses.htm">bread and circuses</a>: that they were superficial and insubstantial. </p>
<p>But to assume that the physical displays of the modern circus are in any way basic is to miss something fundamentally impressive about them.</p>
<h2>The inaccurate image of the circus in political discourse</h2>
<p>Television network Showtime launched its documentary series <a href="https://www.sho.com/the-circus-inside-the-greatest-political-show-on-earth">The Circus: Inside the Greatest Political Show on Earth</a> (2016) as a response to the increasingly bizarre turn to populism in US political campaigning. Despite a change in administration from Republican Donald Trump to Democrat Joe Biden, the show is now in its seventh season.</p>
<p>The BBC’s former North America editor Jon Sopel followed Showtime’s lead and published <a href="https://www.penguin.co.uk/books/439631/a-year-at-the-circus-by-jon-sopel/9781785944390">A Year at the Circus</a> (2019), his account of covering the Trump presidency. </p>
<figure class="align-center ">
<img alt="A placard shows a cartoon Donald Trump with a red clown nose." src="https://images.theconversation.com/files/504756/original/file-20230116-14-81ifkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/504756/original/file-20230116-14-81ifkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504756/original/file-20230116-14-81ifkg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504756/original/file-20230116-14-81ifkg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504756/original/file-20230116-14-81ifkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504756/original/file-20230116-14-81ifkg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504756/original/file-20230116-14-81ifkg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Circus metaphors were frequently used to describe the Trump administration.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/los-angeles-usa-october-2020-poster-1839032794">Shutterstock</a></span>
</figcaption>
</figure>
<p>Sopel’s book prompted writer Dea Birkett to <a href="https://www.spectator.co.uk/article/why-i-m-sick-of-politics-being-described-as-a-circus/">mount a passionate defence</a> in The Spectator magazine of the prowess, skill, professionalism and composure of circus artists.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/calling-politicians-clowns-is-a-disservice-to-clowns-yes-really-194670">Calling politicians 'clowns' is a disservice to clowns – yes, really</a>
</strong>
</em>
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<p>In her article, Birkett (herself a former circus performer) addressed the cliched habit of describing the behaviour of former US president Donald Trump, his aides and close advisers in circus terms. She extended her criticism to the equivalent tendency in British politics and media when it came to conveying frustrations with former prime minister Boris Johnson.</p>
<h2>From performance to political metaphor</h2>
<p>High-profile documentaries such as <a href="https://www.imdb.com/title/tt2314698/">ITV’s The Circus</a> (2012) have revealed just how precarious traditional circus life is in contemporary Britain. And, just a few years later, when Showtime launched its documentary describing US politics as a circus, <a href="https://eu.usatoday.com/story/news/nation/2017/01/14/ringling-bros-circus-close-after-146-years/96606820/">Ringling Bros and Barnum & Bailey Circus</a> – once known as the “Greatest Show on Earth” – pulled down its big top, supposedly for the last time.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/504757/original/file-20230116-14-2boffm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A poster for the circus shows a clown instructing geese." src="https://images.theconversation.com/files/504757/original/file-20230116-14-2boffm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/504757/original/file-20230116-14-2boffm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=937&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504757/original/file-20230116-14-2boffm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=937&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504757/original/file-20230116-14-2boffm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=937&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504757/original/file-20230116-14-2boffm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1177&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504757/original/file-20230116-14-2boffm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1177&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504757/original/file-20230116-14-2boffm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1177&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An advertisement for the Barnum & Bailey Circus from 1900.</span>
<span class="attribution"><a class="source" href="https://loc.gov/pictures/resource/cph.3g09670/">Library of Congress</a></span>
</figcaption>
</figure>
<p>Few of us now go to traditional circuses other than out of a kind of ironic nostalgia. But it’s not necessary to have really experienced it to feel confident in invoking the term effectively.</p>
<p>Reflecting on political rhetoric in the early 21st century, professor of linguistics <a href="https://people.uwe.ac.uk/Person/JonathanCharteris-Black">Jonathan Charteris-Black</a> argues in <a href="https://www.degruyter.com/database/COGBIB/entry/cogbib.2134/html?lang=en">Politicians and Rhetoric</a> (2011) that metaphor is used in political contexts “for ideological purposes because it activates unconscious emotional associations and thereby contributes to myth creation”.</p>
<p>In the specific case of circus metaphors, those emotional associations might include – in a positive sense – risk, daring, excitement and freedom, if we think about running away with the circus. But in a negative sense, a circus metaphor might convey cruelty and disarray, antisocial and uncivilised behaviour, style over substance.</p>
<p>To invoke the circus in political discourse is, without exception, to undermine the power, ability and basic common sense of a political opponent – hence Birkett’s frustrations with the failure to acknowledge the skill and prowess of her fellow circus artists.</p>
<p>Charteris-Black explains that “metaphor is a shift in the use of a word or phrase by giving it a new sense. If the innovative sense is taken up, it will eventually change the meaning of a word that is used metaphorically”. Politicians and political commentators have substituted the circus ring for the political arena so insistently that they have changed the very meaning of the word.</p>
<p>Today, we know the circus principally through metaphor, understanding its significance best when its name is used to express other cultural, social and political phenomenons.</p><img src="https://counter.theconversation.com/content/197973/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eleanor Lybeck received AHRC funding to complete her PhD on the circus in Irish literature and culture at the University of Cambridge between 2012 and 2015. </span></em></p>An expert in the circus in literature and culture explains the root of its resonance as a political metaphor – and why circus performers object to it.Eleanor Lybeck, Senior Lecturer in Literature, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1923242022-10-13T12:21:58Z2022-10-13T12:21:58ZJan. 6 Committee’s fact-finding and bipartisanship will lead to an impact in coming decades, if not tomorrow<figure><img src="https://images.theconversation.com/files/489460/original/file-20221012-11-ym4nec.jpeg?ixlib=rb-1.1.0&rect=17%2C0%2C5773%2C3855&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A tweet from former President Donald Trump is shown on a screen at the House Jan. 6 committee hearing on June 9, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/tweet-from-former-president-donald-trump-is-shown-on-a-news-photo/1241210230">Jabin Botsford/POOL/AFP via Getty Images</a></span></figcaption></figure><p>The committee formed to investigate the role of former President Donald Trump and key aides in last year’s Capitol insurrection faced high stakes as it held its 10th and possibly last public hearing on Oct. 13, 2022.</p>
<p>Since the committee debuted its evidence in prime time on June 9, 2022, Vice-Chair Liz Cheney of Wyoming, one of two Republicans on the committee, <a href="https://www.nytimes.com/2022/08/16/us/politics/harriet-hageman-liz-cheney-wyoming.html">lost her House seat in a primary election</a>. The other GOP committee member, Rep. Adam Kinzinger of Illinois, <a href="https://www.politico.com/news/2021/10/29/rep-adam-kinzinger-wont-seek-reelection-next-year-517599">announced last year that he isn’t running for reelection</a>. </p>
<p>Should Republicans regain the House majority in November’s midterm elections, presumptive Speaker Kevin McCarthy could disband, or reconstitute, the committee. Some GOP House members have indicated that they <a href="https://www.cnn.com/2022/07/15/politics/house-republicans-investigation-plans-trump/index.html">might use their newfound control over investigations to probe the committee members themselves</a> over how they have conducted their work. </p>
<p>Thus, the committee faces a ticking clock as it wraps up its hearings and <a href="https://www.axios.com/2022/09/26/jan6-committee-hearing-sept28-trump">finalizes its report</a>, which may recommend criminal charges against Trump and crucial election security reforms. However, it is possible that there will be no immediate legal, policy or political ramifications of the committee’s work. </p>
<p>But as <a href="https://theconversation.com/profiles/claire-leavitt-1351188">a scholar of oversight</a> who in 2019 spent a year working on the Democratic majority staff of the House Committee on Oversight and Reform, I believe the committee’s work will have historic impact. That effect, though, may take years to be seen and felt.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman dressed in a black jacket and white shirt wipes tears from her face while giving testimony at a table in a large room filled with people." src="https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Wandrea ‘Shaye’ Moss, a former Georgia election worker, becomes emotional while testifying as her mother, Ruby Freeman, watches during a hearing held by the House January 6th committee on June 21, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/wandrea-arshaye-shaye-moss-former-georgia-election-worker-news-photo/1241441997?phrase=january%206%20committee%20wandrea&adppopup=true">Michael Reynolds-Pool/Getty Images</a></span>
</figcaption>
</figure>
<h2>Accountability and effectiveness</h2>
<p>Although 919 people have been <a href="https://www.insider.com/all-the-us-capitol-pro-trump-riot-arrests-charges-names-2021-1">charged with crimes in relation to the Capitol insurrection thus far</a>, there’s still a lot the committee doesn’t know – or hasn’t revealed – <a href="https://www.washingtonpost.com/national-security/2022/06/29/trump-january-6-timeline/">about Trump’s direct involvement in the insurrection</a>. </p>
<p>And no matter how compelling a case the committee’s final report might make, the Department of Justice <a href="https://news.bloomberglaw.com/white-collar-and-criminal-law/doj-is-likely-to-wait-past-election-to-reveal-any-trump-charges">may simply choose not to indict</a> the former president. </p>
<p>In terms of policy changes that could emerge from the committee’s efforts, <a href="https://www.cbsnews.com/news/electoral-count-act-reform-bill-passes-house-of-representatives-today-2022-09-21/">the House passed the Presidential Election Reform Act</a> in September 2022, which among other provisions clarifies the vice president’s role in the certification of Electoral College votes. The Senate has taken bipartisan action on their version of the bill, but its fate is still uncertain. </p>
<h2>Courting the public</h2>
<p>Political scientist Paul Light argues that the most “high impact” investigations over the course of American history achieved their success <a href="https://www.brookings.edu/wp-content/uploads/2016/06/LIghtPaperDec2013.pdf">“through a mix of fact-finding, bipartisanship, and strong leadership</a>.” The Jan. 6th Committee took an approach that emphasized facts in presenting its case to the American people. </p>
<p>It dampened charges of partisanship leveled by Trump and his GOP supporters by granting Republicans Cheney and Kinzinger prominent roles. <a href="https://www.lawfareblog.com/lessons%E2%80%94and-limits%E2%80%94-jan-6-committee">Cheney chaired the committee’s final prime-time hearing this past summer</a>. And the committee showcased extensive testimony from officials whose Republican bona fides are unimpeachable, such as former <a href="https://www.youtube.com/watch?v=dpwCApZh6KQ">Attorney General William Barr</a>, <a href="https://www.washingtonpost.com/politics/interactive/2022/cassidy-hutchinson-jan-6-hearing-testimony-illustrated/">former White House aide Cassidy Hutchinson</a> and <a href="https://www.youtube.com/watch?v=06QUOzmMyec">Georgia Secretary of State Brad Raffensperger</a>. </p>
<p>The committee also maximized its visibility by <a href="https://www.axios.com/2022/06/06/jan-6-committee-adviser-james-goldston">hiring former ABC News President James Goldston</a> to produce the hearings, and <a href="https://www.forbes.com/sites/bradadgate/2022/07/09/the-january-6-hearings-are-the-best-television-series-of-the-summer/">approximately 55 million people watched at least part of the hearings this past summer</a>. </p>
<p>The committee even dominated the cultural conversation by highlighting meme-able moments, including Republican Senator Josh Hawley of Missouri running from the rioters <a href="https://www.washingtonpost.com/nation/2022/07/22/josh-hawley-running-video-capitol/">after raising his fist in solidarity earlier that morning</a>. </p>
<p>There is also <a href="https://www.politico.com/news/2022/07/20/jan-6-hearings-trump-support-falls-00046662">some, though not overwhelming, evidence</a> that the hearings diminished support for Trump both in the polls and among donors. However, it’s worth recalling that public opinion as the Watergate scandal was unfolding did not reflect the extent to which <a href="https://www.washingtonpost.com/news/politics/wp/2017/05/15/how-america-viewed-the-watergate-scandal-as-it-was-unfolding/">President Nixon’s legacy would suffer as a result</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man wearing glasses and in a dark suit, sitting in front of an American flag along with a woman in a white jacket and wearing glasses." src="https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The committee’s leaders were Democratic Rep. Bennie Thompson, left, chairman, and Republican Rep. Liz Cheney, vice chairwoman.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/representative-and-committee-chairman-bennie-thompson-and-news-photo/1241482478?phrase=january%206%20committee%20thompson%20cheney&adppopup=true">Mandel Ngan/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Taking time to unfold</h2>
<p>Assessing the full impact of the investigation requires patience – probably decades’ worth. </p>
<p>I believe the House Jan. 6 committee’s legacy will depend on how its in-depth rendering of the events surrounding the 2020 election and the ensuing insurrection is presented, repeated and understood by successive generations of Americans. </p>
<p>Congress had originally planned to <a href="https://www.washingtonpost.com/politics/pelosi-mccarthy-jan6-committee/2021/07/21/21722d44-ea41-11eb-84a2-d93bc0b50294_story.html">establish an independent body</a> to investigate the Capitol attacks, <a href="https://www.npr.org/2021/05/26/999930573/why-a-9-11-commission-is-popular-but-may-not-happen-for-the-jan-6-capitol-attack">modeled on the 9/11 Commission</a> – an idea killed by Senate Republicans last year. So the House committee’s work constitutes, at least thus far, the authoritative public record on the insurrection, with no credible competitor. </p>
<p>This record will serve as a permanent, invaluable cache of information for future investigators, both inside and outside of Congress. It will also inform and inspire the scholars, journalists, novelists and <a href="https://deadline.com/2022/01/january-6-insurrection-movie-billy-ray-adam-mckay-1234916344/">filmmakers</a> who are already shaping the public’s collective understanding of a watershed moment in the history of American democracy. </p>
<p>The Jan. 6th committee’s <a href="https://www.axios.com/2022/09/22/jan-6-report-book-publishers-new-yorker">unpublished report is in hot demand from publishers</a>. It is <a href="https://www.msnbc.com/the-beat-with-ari/watch/jan-6-report-is-1-bestseller-in-america-before-release-exclusive-melber-foreword-on-coup-conspiracy-149050437948">already a bestseller in presales</a>, despite the fact that it will be freely available as part of the public domain.</p>
<p>The <a href="https://www.historians.org/research-and-publications/perspectives-on-history/october-2020/a-new-view-of-event-history-collective-consciousness-as-a-historical-force">process by which events become part of the public consciousness</a> is slow and often imperceptible, but it is a legacy arguably as important as the discrete electoral or policy outcomes that emerge – or not – in the short term. </p>
<p>As one of my students at Smith College recently put it: “Being sixteen years old and watching people attack the Capitol - I never thought I’d see anything like it. The way my grandparents talk about JFK’s assassination or the Kent State massacre is the way I might talk about this to my kids someday.”</p><img src="https://counter.theconversation.com/content/192324/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Leavitt has received funding from the Project on Government Oversight (POGO) and the Levin Center for Oversight and Democracy.</span></em></p>A lot of facts have come forward through the efforts of the House Select Committee to Investigate the January 6 Attack on the United States Capitol. What will its efforts mean to the US?Claire Leavitt, Assistant professor of government, Smith CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1909532022-09-21T12:34:00Z2022-09-21T12:34:00ZPuerto Rico’s vulnerability to hurricanes is magnified by weak government and bureaucratic roadblocks<figure><img src="https://images.theconversation.com/files/485696/original/file-20220920-11238-5tmdt3.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5472%2C3637&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A worker cuts an electricity pole downed by Hurricane Fiona in Cayey, Puerto Rico, on Sept. 18, 2022.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PuertoRicoTropicalWeather/c53b19c43d874156905a6556f4fd4a9c/photo"> AP Photo/Stephanie Roja</a></span></figcaption></figure><p><em>Five years after <a href="https://www.nhc.noaa.gov/data/tcr/AL152017_Maria.pdf">Hurricane Maria</a> wreaked havoc on Puerto Rico, <a href="https://www.nytimes.com/live/2022/09/19/us/hurricane-fiona-puerto-rico">Hurricane Fiona</a> has killed at least four people, caused widespread flooding and left hundreds of thousands of residents <a href="https://www.nbcnews.com/news/latino/puerto-ricans-assess-hurricane-fiona-devastation-5-years-maria-rcna48516">without water or power</a>. Maria caused extensive damage to Puerto Rico’s power grid in 2017 that left many residents without electricity for months. Rebuilding it has been hampered by technical, political and financial challenges.</em></p>
<p><em>Carlos A. Suárez and Fernando Tormos-Aponte are social scientists who study Latin American politics and environmental justice. They explain some of the factors that have hindered efforts to recover from Maria and prepare for subsequent storms on this island with a population of <a href="https://www.census.gov/quickfacts/PR">3.2 million people</a>.</em></p>
<h2>Failed promises from privatization</h2>
<p><strong>Carlos A. Suárez Carrasquillo, Associate Instructional Professor, Political Science, Center for Latin American Studies, University of Florida</strong></p>
<p>In less than a century, Puerto Rico’s electricity system has gone full circle from private provision of electric power to a state-led effort to democratize access to power, and then back to a public-private partnership with a strong <a href="https://theconversation.com/what-is-neoliberalism-a-political-scientist-explains-the-use-and-evolution-of-the-term-184711">neoliberal</a> ethos. Yet Puerto Ricans still face daily challenges in obtaining affordable and efficient electricity services. </p>
<p>When the island’s electric power system was created in the late 1800s, private companies initially produced and sold electricity. During the New Deal era in the 1930s, the government took over this role. People came to see electric power as a <a href="https://www.elnuevodia.com/noticias/locales/videos/legisladores-defienden-la-aee-como-un-patrimonio-nacional-272466/">patrimonio, or birthright</a>, that the government would provide, at times by <a href="https://aeepr.com/es-pr/Site-Servicios/Manuales/PREPA%20New%20Rate%20Structure%20Presentation%20-%20Internet.pdf">subsidizing power for lower-income residents</a>. </p>
<p>In the 1940s, Puerto Rico launched <a href="https://cdn.theconversation.com/static_files/files/2318/Quin%CC%83ones_and_Seda_%282016%29_Wealth_Extraction__Governmental_Servitude.pdf">Operation Bootstrap</a>, a rapid industrialization program that sought to attract foreign investments in industries such as textiles and petrochemicals. One important element was reliable and cheap electricity, provided by the state through the Autoridad de Energía Eléctrica, a public corporation known in English as the <a href="https://www.aafaf.pr.gov/relations-articles/puerto-rico-electric-power-authority-prepa/">Puerto Rico Electric Power Authority, or PREPA</a>.</p>
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<figcaption><span class="caption">Damage from Hurricane Fiona, which dropped over 30 inches of rain on Puerto Rico, has set back post-Hurricane Maria recovery efforts.</span></figcaption>
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<p>Many interests coalesced around PREPA, including elected officials, labor unions, the <a href="https://www.noticel.com/article/20190703/larga-la-cola-de-sospechas-del-cartel-del-petroleo/">domestic oil importers</a> and, most importantly, the Puerto Rican public. Patronage and party politics often influenced the company’s <a href="https://dialogo.upr.edu/aee-ha-sido-el-balon-politico-y-la-joya-de-la-corona-segun-agp/">hiring, contracting and financial decisions</a>. </p>
<p>PREPA took on significant debt, often at the request of elected officials. For example, in 2011, then-Speaker of the House Jennifer González legislated for the company to obtain a line of credit from the Banco Gubernamental de Fomento in order to <a href="https://www.elnuevodia.com/noticias/locales/notas/jenniffer-gonzalez-defiende-linea-de-credito-para-la-aee/">reduce power bills ahead of the 2012 elections</a>. </p>
<p>Gov. Alejandro García Padilla and Puerto Rico’s Financial Oversight and Management Board <a href="https://dialogo.upr.edu/mas-medidas-de-austeridad-aprobadas-tras-reunion-de-la-jcf/">imposed austerity policies in 2012-2017</a> that subsequent governors have kept in place. This left PREPA with limited resources to prepare for Hurricane Maria or make repairs afterward. </p>
<p>In 2021, Puerto Rico’s government and the financial control board privatized power delivery on the island. PREPA continued to generate electricity, but <a href="https://apnews.com/article/caribbean-puerto-rico-business-135b9ec52e130f3716f8862021a524d4">LUMA Energy</a>, a U.S.-Canadian consortium, received a 15-year contract to <a href="https://www.theweeklyjournal.com/politics/prepa-governing-board-approved-luma-contract-after-43-minute-meeting/article_b4399670-7deb-11eb-a4ee-f37571d32c44.html">transmit and deliver power to customers</a>. </p>
<p>LUMA is at the center of many controversies. It has resisted recognizing the largest and most powerful union in Puerto Rico as its employees’ <a href="https://www.sanjuandailystar.com/post/utier-chief-not-surprised-luma-chose-another-union">exclusive representative</a>. Many consumers’ monthly electric bills have <a href="https://www.elnuevodia.com/noticias/locales/notas/luma-energy-pide-un-aumento-de-171-en-la-factura-de-luz-de-julio-a-septiembre/">increased significantly</a>. LUMA was supposed to upgrade Puerto Rico’s grid, with billions of dollars in federal support, but <a href="https://www.washingtonpost.com/nation/2021/11/16/puerto-rico-luma-energy/">outages continued</a>. Critics have called the company <a href="https://www.elcalce.com/contexto/2022/04/08/vicepresidente-de-luma-dedica-poesia-a-pr-pa-que-la-gente-recuerde-que-no-son-tan-malos">secretive</a> and <a href="https://www.elnuevodia.com/english/news/story/luma-awards-contract-to-ray-chacon-a-friend-of-former-governor-luis-fortuno/">corrupt</a>.</p>
<p>Labor groups, environmentalists and academics have offered comprehensive alternatives, such as <a href="https://www.queremossolpr.com/">Queremos Sol</a>, a proposal to install distributed solar power across the island, to reduce Puerto Rico’s dependence on fossil fuels and what they see as incompetent private administration. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1572308213227491328"}"></div></p>
<p>But the changes needed to address Puerto Rico’s energy crisis are inherently political. Enacting them will require support from the federal fiscal oversight board and Puerto Rican <a href="https://www.primerahora.com/noticias/gobierno-politica/notas/junta-le-da-la-bienvenida-a-transformacion-en-la-aee/">politicians</a>. I believe the public will have to mobilize and rally to convince authorities that the PREPA of old and LUMA today are antiquated organizations that are unable to meet Puerto Ricans’ current needs. </p>
<h2>Who gets disaster aid?</h2>
<p><strong>Fernando Tormos-Aponte, Assistant Professor of Sociology, University of Pittsburgh</strong></p>
<p>Disaster aid has been slow to come to Puerto Rico. Five years after Hurricane Maria, the U.S. government is channeling funds to rebuild and harden the archipelago’s energy infrastructure. But only a few of the planned multimillion-dollar projects have been even <a href="https://www.fema.gov/press-release/20220606/fema-announces-progress-puerto-ricos-power-grid-work">partially approved</a>. </p>
<p>In addition to privatization of the power system, residents have also contended with bureaucratic obstacles and the <a href="https://doi.org/10.1016/j.enpol.2021.112550">use of disaster resources for political gain</a>. </p>
<p><a href="https://www.governor.ny.gov/sites/default/files/atoms/files/PRERWG_Report_PR_Grid_Resiliency_Report.pdf">Damage assessments</a> after Maria were rough estimates because the storm was so destructive. The U.S. government ultimately calculated total damage to Puerto Rico and the U.S. Virgin islands at <a href="https://www.nhc.noaa.gov/data/tcr/AL152017_Maria.pdf">US$90 billion</a>.</p>
<p>Now, Hurricane Fiona has caused further damage, which will require even more significant investments. No government authority has sufficient resources on the ground in Puerto Rico to conduct such an assessment, let alone react swiftly to the disaster. </p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/EVJCRDLGJDY?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Federal Emergency Management Agency Associate Director Anne Bink describes how experience from Hurricane Maria will shape the response to Hurricane Fiona.</span></figcaption>
</figure>
<p>Local elected officials are often eager to claim responsibility for securing funding. However, investments in disaster preparedness, such as improving the electric grid, <a href="https://doi.org/10.1146/annurev-polisci-032211-212920">have less impact on public perceptions of government performance</a> than recovery funds that are disbursed shortly after a disaster strikes. </p>
<p>I expect that the Biden administration will seek to respond faster and more substantively to Hurricane Fiona than the Trump administration did after Hurricane Maria – but not necessarily out of compassion. </p>
<p>Presidents tend to use disaster resources to <a href="https://www.jstor.org/stable/10.1017/s0022381611000843">gain electoral advantage</a>, <a href="https://doi.org/10.1017/S0003055409990104">reward supporters</a> and portray themselves as capable disaster managers. And they typically are more vulnerable <a href="https://doi.org/10.1111/ajps.12053">in election years</a>. </p>
<p>Maria hit Puerto Rico during Donald Trump’s first year in office. Puerto Rican voters <a href="https://www.politico.com/news/magazine/2020/09/09/puerto-rico-statehood-politics-democrats-republicans-senate-409191">lean Democratic when they move to the U.S. mainland</a> – as a <a href="https://www.britannica.com/place/Puerto-Rico/The-commonwealth">commonwealth</a>, the archipelago does not cast electoral votes – so Trump likely did not perceive Puerto Ricans as important to his election. The Trump administration engaged in deliberate efforts to <a href="https://www.theguardian.com/world/2021/apr/22/hurricane-maria-puerto-rico-trump-delayed-aid">delay disbursing Hurricane María recovery aid</a> and <a href="https://www.npr.org/2018/09/13/647377915/trump-denies-death-toll-in-puerto-rico-falsely-claims-done-by-the-democrats">denied the real toll of the disaster</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/485725/original/file-20220920-3560-e4vmh3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A long line of cars idles on a city street" src="https://images.theconversation.com/files/485725/original/file-20220920-3560-e4vmh3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/485725/original/file-20220920-3560-e4vmh3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/485725/original/file-20220920-3560-e4vmh3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/485725/original/file-20220920-3560-e4vmh3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/485725/original/file-20220920-3560-e4vmh3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=521&fit=crop&dpr=1 754w, https://images.theconversation.com/files/485725/original/file-20220920-3560-e4vmh3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=521&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/485725/original/file-20220920-3560-e4vmh3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=521&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People wait in their vehicles to collect water in San Pedro, Puerto Rico, on Oct. 19, 2017, nearly one month after Hurricane Maria.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-wait-in-their-cars-in-line-to-collect-water-nearly-news-photo/863242170">Mario Tama/Getty Images</a></span>
</figcaption>
</figure>
<p>In contrast, Joe Biden <a href="https://www.bloomberg.com/news/articles/2021-04-30/latino-vote-surge-helped-biden-in-key-states-new-data-suggest">relied more heavily on minority support</a> for his 2020 presidential victory, and Hurricane Fiona has struck just two months before the 2022 midterm elections. Responding offers Biden an opportunity to prove himself a capable disaster manager and attract votes. </p>
<p>Even if the Biden administration is better organized and more responsive, however, marginalized communities often are hampered by <a href="https://www.jstor.org/stable/10.7758/9781610448789">administrative burdens</a> when they try to access government resources. </p>
<p>For example, I have interviewed mayors in Puerto Rico who issued contracts to local providers to address urgent needs after the Federal Emergency Management Agency promised reimbursement. To this day, FEMA has not paid some of these mayors back, and the mayors fear that local vendors will not want to do further business with their governments. </p>
<p>Identifying and applying for U.S. government grants is a complex and tedious process that requires training. Access to that training is uneven, and language barriers often keep communities from seeking grants. </p>
<p>After Hurricane Maria, few Puerto Rican communities had the resources and support needed to cope with these barriers. In my view, governments must prioritize marginalized communities in their response to Hurricane Fiona to avoid reproducing the <a href="https://doi.org/10.1016/j.enpol.2021.112550">inequalities that marked the Hurricane María recovery</a>. Elected officials must demand transparency and accountability from those tasked with distributing aid, while holding themselves to the same standards.</p><img src="https://counter.theconversation.com/content/190953/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fernando Tormos-Aponte receives funding from the Early Career Faculty Innovator Program at the National Center for Atmospheric Research and the National Oceanic and Atmospheric Administration. He is a fellow at the Union of Concerned Scientist’s Center for Science and Democracy.</span></em></p><p class="fine-print"><em><span>Carlos A. Suárez Carrasquillo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Hurricane Fiona will set back efforts to restore Puerto Rico that date back five years to Hurricane Maria. Two scholars explain how the island’s weak institutions worsen the impacts of disasters.Carlos A. Suárez Carrasquillo, Senior Lecturer in Political Science, Center for Latin American Studies, University of FloridaFernando Tormos-Aponte, Assistant Professor of Sociology, University of PittsburghLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1899812022-09-07T20:08:03Z2022-09-07T20:08:03ZJared Kushner’s memoir is a self-serving account of a hero’s triumphs but contains a great deal of fascinating detail<p>Jared Kushner is not the first presidential son-in-law to have held high office. President Woodrow Wilson leaned heavily on his talented and experienced Treasury Secretary, William McAdoo, who just happened to be his daughter’s husband. </p>
<hr>
<p><em>Jared Kushner: Breaking History: A White House Memoir (Harper Collins)</em></p>
<hr>
<p>McAdoo, however, was a skilled politician, and his appointment had to be ratified by the US Senate. Kushner, who spent much of Donald Trump’s period in office as a senior advisor, and even at times a de facto chief of staff, was previously a real estate developer. </p>
<p>Kushner’s marriage to Trump’s daughter, Ivanka, was facilitated by Rupert Murdoch and his former wife. But that friendship had its limits, as Jared would discover when Rupert refused to override the call made by Fox News in its coverage of the 2020 elections that gave Arizona to Trump’s adversary, Joe Biden.</p>
<p>Kushner was one of Trump’s inner circle, with a wide-ranging set of briefs that appeared to cut across half a dozen departments. Breaking History reads rather like a dutiful student’s account of “what I did on my summer holidays”, except in this case Jared actually influenced US policies in a number of areas.</p>
<p>While making sure to properly acknowledge the <em>pater familias</em>, Kushner claims some big personal achievements: </p>
<blockquote>
<p>Across four years, I helped negotiate the largest trade deal in history, pass bipartisan criminal justice reform, and launch Operation Warp Speed to deliver a safe and effective COVID-19 vaccine in record time … In what has become known as the Abraham Accords, five Muslim-majority countries signed peace agreements with Israel. </p>
</blockquote>
<p>Some of these claims are justified. In particular, the Trump administration did support some relaxing of the draconian penal restrictions that mean the US leads the world in incarcerations. Kushner’s account of building a bipartisan movement to modify some of these laws is important, even as it reminds us of the barbarity of much of the US justice system.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/482902/original/file-20220906-25-uh3nfo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/482902/original/file-20220906-25-uh3nfo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/482902/original/file-20220906-25-uh3nfo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/482902/original/file-20220906-25-uh3nfo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/482902/original/file-20220906-25-uh3nfo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/482902/original/file-20220906-25-uh3nfo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/482902/original/file-20220906-25-uh3nfo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/482902/original/file-20220906-25-uh3nfo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Kushner, left, and Ivanka Trump, right, sit with Kim Kardashian West, one of the celebrities who advocated for criminal justice reform, at the White House in 2019.</span>
<span class="attribution"><span class="source">Evan Vucci/AP</span></span>
</figcaption>
</figure>
<p>Kushner spent considerable time working with selected gulf states to develop what became the Abraham Accords, which saw four Arab states recognise Israel. His insight was that the various royal despots would ultimately collaborate in abandoning the Palestinians in the greater interest of building an anti-Iranian alliance, where they shared common concerns with Israel. It seems Kushner never met a ruler he didn’t like, nor one whose record on human rights was worth questioning.</p>
<p>Kushner seems blithely oblivious to the fact his close ties to Israel’s former prime minister Benjamin Netanyahu, which go back to childhood, and his own strong support for Israeli ambitions, might have restrained Palestinian enthusiasm for his peacemaking efforts.</p>
<p>In this he reminds one of his father-in-law, who never let sentiment get in the way of enthusiasm for making a deal. Remember how well that went with Kim Jong-un – and, yes, Jared and Ivanka were there when the two presidents met at the Demilitarised Military Zone between the two Koreas, but tactfully no more is said about the beautiful friendship Trump claimed was established.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/482910/original/file-20220906-18-d3h2rz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/482910/original/file-20220906-18-d3h2rz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/482910/original/file-20220906-18-d3h2rz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/482910/original/file-20220906-18-d3h2rz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/482910/original/file-20220906-18-d3h2rz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/482910/original/file-20220906-18-d3h2rz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/482910/original/file-20220906-18-d3h2rz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/482910/original/file-20220906-18-d3h2rz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Little is said about this ‘beautiful friendship’.</span>
<span class="attribution"><span class="source">KCNA/EPA</span></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/personal-diplomacy-has-long-been-a-presidential-tactic-but-trump-adds-a-twist-105031">Personal diplomacy has long been a presidential tactic, but Trump adds a twist</a>
</strong>
</em>
</p>
<hr>
<h2>Telling silences and a magic touch</h2>
<p>After the outbreak of COVID, Kushner became a central player, along with Vice-President Mike Pence, in organising the national response. As with his account of the Abraham negotiations, there is a great deal of fascinating detail obscured by his need to be centre-stage. </p>
<p>That the US suffered <a href="https://www.bing.com/ck/a?!&&p=92adc94cf9f01fa6JmltdHM9MTY2MjMzNjAwMCZpZ3VpZD0wMWM1NDRjYi1lZGZjLTY4NmMtMWVlZi00YTUyZWM2YzY5NzgmaW5zaWQ9NTIwNQ&ptn=3&hsh=3&fclid=01c544cb-edfc-686c-1eef-4a52ec6c6978&u=a1aHR0cHM6Ly9jb3JvbmF2aXJ1cy5qaHUuZWR1L2RhdGEvbW9ydGFsaXR5&ntb=1">among the highest COVID death rates within rich countries</a>
is apparently not worth mentioning beside the achievements of our hero in mobilising the private sector and pharmaceutical giants.</p>
<p>In Kushner’s world everyone is at fault, except the Trump family. President Trump, it seems, was constantly let down by his advisers, the Republican establishment, foreign leaders – by everyone, in fact, but Jared and Ivanka. Donald’s wife and sons barely appear (thankfully Melania, Eric and Donald Jr were hardly noted for their interest in policy).</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/482905/original/file-20220906-22-7qwjay.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/482905/original/file-20220906-22-7qwjay.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/482905/original/file-20220906-22-7qwjay.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/482905/original/file-20220906-22-7qwjay.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/482905/original/file-20220906-22-7qwjay.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/482905/original/file-20220906-22-7qwjay.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=542&fit=crop&dpr=1 754w, https://images.theconversation.com/files/482905/original/file-20220906-22-7qwjay.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=542&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/482905/original/file-20220906-22-7qwjay.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=542&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In Kushner’s world, everyone is at fault except the Trump family.</span>
<span class="attribution"><span class="source">Evan Vucci/AP</span></span>
</figcaption>
</figure>
<p>Nor, one might note, do either of the Australian prime ministers who dealt with Trump rate a mention. Kushner seems largely uninterested in democratically elected governments, although he does tell us of his friendship with former UK prime minister Boris Johnson. It seems that for four years, only the steady hand of President Trump, supported by his daughter and son-in-law, steered the US through perilous waters.</p>
<p>Breaking History suggests there were few areas of government where Jared’s magic touch was not required. As he says, when the president calls, you answer, even if it means missing sleep and meals. He notes the rapid turnover of officials in the administration, and has little praise for most of the cabinet, other than former secretary of state Mike Pompeo and treasurer <a href="https://en.wikipedia.org/wiki/Steven_Mnuchin">Steven Mnuchin</a>.</p>
<p>But sycophancy has its limits. One of the most revealing lines in the book comes in a reflection on the days after the 2020 elections: “Like millions of Americans, I was disappointed by the outcome of the election.” </p>
<p>Kushner makes no attempt to support claims the election was stolen, and passes over the attack on the Capitol by Trump’s supporters, which he acknowledges was “wrong and unlawful”. His claim that had Trump anticipated violence he would have prevented it from happening has been essentially disproved in the <a href="https://www.abc.net.au/news/2022-07-23/what-will-the-january-6-hearings-mean-for-donald-trump/101257384">recent hearings</a> into the January 6 attack.</p>
<h2>Analysing a morally corrupt presidency</h2>
<p>Donald Trump is known to be a lazy reader, <a href="https://www.theguardian.com/books/2022/aug/25/trump-reading-kushner-book-breaking-history">although Kushner claimed last month</a> his father-in-law had started reading his book. Will he wade through the 400 or so pages of praise that come before the admission of electoral defeat? </p>
<p>One wonders whom else the book might attract. The prose is flat but grammatical, far removed from the overblown rhetoric and denunciations so beloved of the MAGA crowd. The book has been predictably panned by the New York Times and Washington Post, and largely ignored by Trump’s true believers, who far prefer the fiery speeches of Don Junior. But it would be wrong to ignore the insights into Washington and Middle Eastern policy-making that Kushner provides.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/482900/original/file-20220906-5391-1cwez0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/482900/original/file-20220906-5391-1cwez0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/482900/original/file-20220906-5391-1cwez0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=359&fit=crop&dpr=1 600w, https://images.theconversation.com/files/482900/original/file-20220906-5391-1cwez0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=359&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/482900/original/file-20220906-5391-1cwez0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=359&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/482900/original/file-20220906-5391-1cwez0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=451&fit=crop&dpr=1 754w, https://images.theconversation.com/files/482900/original/file-20220906-5391-1cwez0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=451&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/482900/original/file-20220906-5391-1cwez0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=451&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Jared Kushner (right) and Benjamin Netanyahu make joint statements to the press about the Israeli-United Arab Emirates peace accords in Jerusalem, August 30 2020.</span>
<span class="attribution"><span class="source">Debbie Hill/EPA</span></span>
</figcaption>
</figure>
<p>Even a morally corrupt presidency leaves a mark on the world that needs to be analysed. The plethora of books that have already appeared around the Trump presidency bear out Kushner’s claim to have been a key player across a number of crucial portfolios. </p>
<p>Indeed, the only other person to remain in “the room where it happened” through the entire four years was Pence, until his final break with Trump over the results of the 2020 elections. Now there’s a story Lin Manuel Miranda might consider as a follow-up to Hamilton.</p><img src="https://counter.theconversation.com/content/189981/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dennis Altman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Breaking History reads like a dutiful student’s account of ‘what I did on my summer holidays’. But Kushner provides useful insights into the Washington and Middle Eastern policy-making processes.Dennis Altman, VC Fellow LaTrobe University, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1895002022-08-26T19:17:21Z2022-08-26T19:17:21ZFBI’s Mar-a-Lago search warrant affidavit reveals how Trump may have compromised national security – a legal expert answers 5 key questions<figure><img src="https://images.theconversation.com/files/481357/original/file-20220826-14-tztka9.jpeg?ixlib=rb-1.1.0&rect=26%2C26%2C5967%2C3846&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The seal of the Federal Bureau of Investigation is seen outside of its headquarters in Washington, DC on August 15, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-seal-of-the-federal-bureau-of-investigation-is-seen-news-photo/1242529976?adppopup=true">Mandel Ngan/AFP via Getty Images</a></span></figcaption></figure><p><em>The Justice Department on Aug. 26, 2022, <a href="https://www.courtlistener.com/docket/64872441/102/1/united-states-v-sealed-search-warrant/">released an affidavit</a> written by an FBI special agent that was used to obtain a court order for the <a href="https://www.washingtonpost.com/national-security/2022/08/23/trump-records-mar-a-lago-fbi/">FBI’s search of former President Donald Trump’s Florida estate</a> for documents related to national defense and other government records.</em> </p>
<p><em>Large portions of the affidavit were blocked from public view, leaving many questions about details of the investigation. Nonetheless, what is visible shows the FBI had solid evidence that Trump took documents critical to national security to his Mar-a-Lago estate.</em></p>
<p><em>Florida federal Judge Bruce Reinhart had <a href="https://www.reuters.com/world/us/us-justice-dept-poised-release-redacted-affidavit-trump-search-2022-08-26/">ordered on Aug. 22, 2022, that the affidavit</a> – which typically contains key details about an investigation to justify a search warrant – <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.617854/gov.uscourts.flsd.617854.99.0_11.pdf">be made public</a> following a lawsuit from media organizations and other groups. But Reinhart <a href="https://theweek.com/donald-trump/1016198/judge-orders-fbi-to-release-redacted-affidavit-behind-search-of-trumps-mar-a">also said in his order that he would allow</a> the Justice Department <a href="https://www.courtlistener.com/docket/64872441/98/united-states-v-sealed-search-warrant/">to first redact</a> some of the affidavit’s most critical information, like “the identities of witnesses, law enforcement agents, and uncharged parties … the investigation’s strategy, direction, scope, sources, and methods, and … grand jury information.”</em></p>
<p><em>It’s the latest development in the legal conflict over government documents, including national security material, that Trump has kept in violation of the law, according to the affidavit. The document shows that there is what the law calls “<a href="https://www.law.cornell.edu/wex/probable_cause">probable cause</a>” to believe that Trump committed various crimes, including violation of the <a href="https://theconversation.com/you-dont-have-to-be-a-spy-to-violate-the-espionage-act-and-other-crucial-facts-about-the-law-trump-may-have-broken-188708">Espionage Act</a>.</em></p>
<p><em>We asked Georgia State University <a href="http://www.clarkcunningham.org/">legal scholar</a> and <a href="https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">search warrant expert</a> Clark Cunningham to answer five key questions to help explain this new development.</em></p>
<h2>1. What is a search warrant affidavit?</h2>
<p>Let’s start with <a href="https://www.law.cornell.edu/wex/search_warrant">a search warrant, which is a court order</a> authorizing government agents to enter property without an owner’s permission to search for evidence of a crime. The warrant further authorizes agents to seize and take away such evidence if they find it. </p>
<p>In order to get a search warrant, the government must provide the court one or more statements made under oath that explain why the government believes a crime has been committed, establishing that there is sufficient justification for issuing the warrant. If the statement is written, it is <a href="https://www.law.cornell.edu/wex/affidavit">called an affidavit</a>. This is why the first sentence of the unsealed affidavit has the words “being duly sworn” following the blacked-out name of the agent making the statement.</p>
<h2>2. What’s the most important takeway from this affidavit?</h2>
<p>Given that a lot of the information on the affidavit has been blacked out, probably the most telling new information is that the FBI agent says that a review of Mar-a-Lago documents the government had already obtained <a href="https://www.cnn.com/2022/08/09/politics/doj-investigation-trump-documents-timeline/index.html">by grand jury subpoena earlier this year</a> were marked in a way that would clearly indicate national security was at risk.</p>
<h2>3. How does the affidavit show national security was at risk?</h2>
<p>The affidavit reveals that some of the documents stored at Mar-a-Lago were <a href="https://www.allacronyms.com/HCS/Humint_Control_System">marked HCS</a>, indicating they were intelligence derived from clandestine human sources – or what we would think of as secret intelligence information provided by undercover agents or sources within foreign governments. If the identity of agents or sources is revealed, their intelligence value is compromised and, even, their lives may be at risk.</p>
<p>There were also documents marked FISA, meaning they were collected under the <a href="https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1286">Foreign Intelligence Surveillance Act</a>, documents <a href="https://csrc.nist.gov/glossary/term/noforn">marked NOFORN,</a> meaning that the information cannot be released in any form to a foreign government, as well as documents <a href="https://www.nsa.gov/Signals-Intelligence/Overview/">marked SI</a>, meaning they were derived from monitoring foreign governments’ communications.</p>
<h2>4. Is it common for a court to unseal an affidavit while an investigation is underway?</h2>
<p>Because a search warrant affidavit usually lays out the government’s case and identifies witnesses, it is <a href="https://www.timesunion.com/state/article/Why-search-warrants-rarely-unsealed-17369233.php">very rare for a search warrant affidavit to be unsealed</a> if there is an ongoing criminal investigation. That’s why there were so many redactions in the version of the affidavit that was released. If such an affidavit is unsealed, it’s most often later in the process, when criminal charges are actually filed.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A female security guard or police officer is seen walking outside of a courthouse." src="https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Security officers guard the entrance to the federal courthouse in West Palm Beach on Aug. 18, 2022, as the court holds a hearing to determine if the Trump affidavit should be unsealed.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/security-officers-guard-the-entrance-to-the-paul-g-rogers-federal-picture-id1242577909?s=2048x2048">Chandan Khanna/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>5. What does this say about the investigation and the seriousness of Trump’s alleged crimes?</h2>
<p>The information revealed in the affidavit indicates that the country’s national security and the safety of intelligence agents were possibly put at severe risk when national defense documents were apparently stored in a room at a resort in Florida. </p>
<p>It’s a little confusing – there’s been much <a href="https://www.washingtonpost.com/national-security/2022/08/13/trump-warrant-classified-answers/">talk in the media about classified information</a>. Improper storing of classified information is a crime, but that is not what is being investigated here. A much more serious crime under the Espionage Act is at stake. </p>
<p>Even someone like a former president who initially had lawful possession of national defense information commits a felony by <a href="https://www.law.cornell.edu/uscode/text/18/793">retaining that information after the government demands its return</a>. Trump can not hang on to national defense documents even if, while president, he “declassified” such documents, as <a href="https://www.cnn.com/2022/08/18/politics/trump-claim-standing-order-declassify-nonsense-patently-false-former-officials/index.html">he claims he did</a>. </p>
<p>It’s been documented that a <a href="https://www.nytimes.com/2019/11/25/us/chinese-zhang-mar-a-lago.html">Chinese spy</a> penetrated Mar-a-Lago while Trump was president. It is an unsecured location. If a foreign spy got into that room and walked out with information disclosing U.S. undercover agents around the world, or how we have been monitoring and collecting classified information around the world, I see the potential harm as staggering.</p><img src="https://counter.theconversation.com/content/189500/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A search warrant expert breaks down the affidavit the FBI used to search Mar-a-Lago, and the national security concerns it presents.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1869852022-07-14T12:32:34Z2022-07-14T12:32:34ZEnriching uranium is the key factor in how quickly Iran could produce a nuclear weapon – here’s where it stands today<figure><img src="https://images.theconversation.com/files/473964/original/file-20220713-9624-ktt0iy.jpeg?ixlib=rb-1.1.0&rect=0%2C435%2C3199%2C1858&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A cascade of gas centrifuges at a U.S. enrichment plant in Piketon, Ohio, in 1984. Iran is using similar technology to enrich uranium.</span> <span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/6/69/Gas_centrifuge_cascade.jpg">U.S. Department of Energy</a></span></figcaption></figure><p><em>Iran’s nuclear program was a major topic in President Joe Biden’s July 13-16, 2022 trip to the Middle East. The most challenging part of producing nuclear weapons is making the material that fuels them, and Iran is known to have produced uranium that is near-weapons grade.</em> </p>
<p><em>The Conversation asked Brandeis University professor <a href="https://www.brandeis.edu/facultyguide/person.html?emplid=45b03f10247276eeaf30fadbc8afc2261b06795d">Gary Samore</a>, who worked on nuclear arms control and nonproliferation in the U.S. government for over 20 years, to explain why uranium enrichment is central to Iran’s nuclear ambitions and where the Iranian effort stands now.</em></p>
<h2>What does it mean to enrich uranium?</h2>
<p>Natural uranium contains two main isotopes, or forms whose atoms contain the same number of protons but different numbers of neutrons. It’s about 99.3% uranium-238 and 0.7% uranium-235. The uranium-235 isotope can be used to generate nuclear power for peaceful purposes, or nuclear explosives for military purposes. </p>
<p>Enrichment is the process of separating out and increasing the concentration of U-235 to higher levels above natural uranium. Generally speaking, lower levels of enriched uranium, such as uranium with 5% U-235, are commonly used for nuclear reactor fuel. Higher levels of enrichment, such as 90% U-235, are most desirable for nuclear weapons. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/473966/original/file-20220713-2711-jxjxxz.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Diagram of a single centrifuge for enriching uranium." src="https://images.theconversation.com/files/473966/original/file-20220713-2711-jxjxxz.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/473966/original/file-20220713-2711-jxjxxz.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=842&fit=crop&dpr=1 600w, https://images.theconversation.com/files/473966/original/file-20220713-2711-jxjxxz.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=842&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/473966/original/file-20220713-2711-jxjxxz.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=842&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/473966/original/file-20220713-2711-jxjxxz.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1058&fit=crop&dpr=1 754w, https://images.theconversation.com/files/473966/original/file-20220713-2711-jxjxxz.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1058&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/473966/original/file-20220713-2711-jxjxxz.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1058&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A gas centrifuge separates uranium-235 atoms, which can sustain a nuclear chain reaction, from much more abundant atoms of uranium-238, which cannot. As the centrifuge rotates at high speed, uranium hexafluoride gas is pumped into it. The heavier U-238 molecules move toward the outer edge, and the lighter U-235 molecules move toward the center. The ‘product stream’ of gas enriched in U-235 is pumped through many more centrifuges, increasing the concentration of U-235 at each stage.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Gas_centrifuge#/media/File:Countercurrent_Gas_Centrifuge.svg">Inductiveload/Wikipedia</a></span>
</figcaption>
</figure>
<h2>For military purposes, why are higher levels of enrichment important?</h2>
<p>The higher the level of enrichment, the smaller the amount of nuclear material necessary to produce a nuclear weapon. </p>
<p>The <a href="https://www.iaea.org/">International Atomic Energy Agency</a> identifies 25 kilograms (55 pounds) of 90% enriched uranium as a “significant quantity” necessary for a simple nuclear weapon. But larger amounts of lower-enriched uranium can also work. </p>
<p>For example, the “<a href="https://www.nationalmuseum.af.mil/Visit/Museum-Exhibits/Fact-Sheets/Display/Article/196219/little-boy-atomic-bomb/">Little Boy</a>” atomic bomb that the U.S. dropped on Hiroshima, Japan, in 1945 used about 64 kilograms of uranium (141 pounds) enriched to <a href="https://thebulletin.org/2015/02/the-weight-of-a-butterfly/">an average of 80% U-235</a>. </p>
<p>From a nuclear weapons design standpoint, smaller amounts of higher-enriched nuclear material are more desirable because that reduces the size and weight of the nuclear weapon and makes it easier to deliver. As a result, modern nuclear weapons based on uranium typically use uranium enriched to 90% to 93% U-235, which is known as weapons-grade uranium, for the primary fuel. </p>
<h2>What had Iran achieved prior to the 2015 nuclear deal?</h2>
<p>The <a href="https://www.cfr.org/backgrounder/what-iran-nuclear-deal">2015 nuclear deal</a> between Iran, the U.S. China, France, the United Kingdom, Russia and Germany put significant restrictions on Iran’s nuclear program, in return for relief from a number of international sanctions. When the deal was adopted, Iran had mastered the basic technology for enriching uranium with gas centrifuges – cylinders that spin uranium in gas form at very high speeds to separate the heavier U-238 isotope from the lighter U-235 isotope. </p>
<p>At its two principal enrichment facilities, <a href="https://www.nti.org/education-center/facilities/natanz-enrichment-complex/">Natanz</a> and <a href="https://www.nti.org/education-center/facilities/fordow-fuel-enrichment-plant/">Fordow</a>, Iran was operating about 18,000 first-generation IR-1 centrifuges and about 1,000 second-generation IR-2 centrifuges. It had also accumulated a stockpile of roughly 7,000 kilograms (about 15,430 pounds) of low-enriched uranium (under 5%) and about 200 kilograms (440 pounds) of 20% enrichment uranium. </p>
<p>Based on these capabilities, Iran’s “<a href="https://www.belfercenter.org/publication/irans-nuclear-breakout-time-fact-sheet">breakout time</a>” to produce about 25 kilograms (55 pounds) of 90% enriched uranium – enough for a single nuclear weapon – was estimated to be one or two months. </p>
<p>Breakout time is not intended to suggest that Iran would necessarily decide to produce weapons-grade uranium at these inspected facilities, because the risk of detection and of potential negative international reaction is very high. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1547279700636090368"}"></div></p>
<h2>How did the nuclear deal constrain Iran’s activities?</h2>
<p>The 2015 nuclear deal put physical constraints on Iran’s enrichment program for 10 to 15 years, including the number and type of centrifuges Iran could operate, the size of its stockpile of low-enriched uranium and its maximum enrichment level. </p>
<p>For 15 years, no enrichment would take place at Fordow, and Iran’s stockpile of low-enriched uranium would be limited to 300 kilograms (660 pounds) at a maximum enrichment level of 3.67%. And for 10 years, its centrifuges would be limited to about 6,000 IR-1 centrifuges at Natanz. </p>
<p>In order to meet these physical limits, Iran <a href="https://www.nytimes.com/2015/12/29/world/middleeast/iran-hands-over-stockpile-of-enriched-uranium-to-russia.html">shipped out to Russia</a> most of its stockpile of low-enriched uranium and its entire stockpile of 20% enriched uranium. It also <a href="https://www.armscontrol.org/blog/2015-11-19/iran-dismantling-centrifuges-iaea-reports">dismantled for storage inside Iran</a> most of its IR-1 centrifuges and all of its more advanced IR-2 centrifuges. As a consequence of these limits, Iran’s “breakout time” was extended from a month or two before the deal to about one year after the deal.</p>
<p>After year 10 of the deal, however, Iran was allowed to start replacing its IR-1 centrifuges at Natanz with more advanced models, which it was permitted to continue to research and develop during the first decade of the deal. As these more powerful advanced centrifuges were installed, breakout time would probably have shrunk to about a few months by year 15 of the deal.</p>
<p>As part of the deal, Iran also agreed to enhanced international inspections and monitoring of its nuclear facilities. </p>
<h2>What has Iran done since President Trump withdrew the U.S. from the nuclear deal in 2018?</h2>
<p>Since the U.S. <a href="https://www.nytimes.com/2018/05/08/world/middleeast/trump-iran-nuclear-deal.html">withdrew from the nuclear deal</a>, Iran has gradually exceeded the agreement’s limits. It has increased its stockpile of 5% enriched uranium; resumed producing 20% enriched uranium; initiated production of 60% enriched uranium, resumed enrichment at Fordow; and manufactured and installed advanced centrifuges at both Natanz and Fordow. </p>
<p>Iran has also begun to restrict international monitoring of its nuclear facilities. In June 2022, for example, Iran announced that it was disconnecting cameras installed under the 2015 nuclear deal to monitor its nuclear facilities.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/ZRaaaSxJSBc?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">IAEA Director General Rafael Grossi reacts to Iran’s removal of monitoring cameras from its nuclear facilities.</span></figcaption>
</figure>
<p>As of May 2022, the International Atomic Energy Agency estimated that Iran had about 1,000 kilograms (2,200 pounds) of 5% enriched uranium, about 240 kilograms (530 pounds) of 20% enriched uranium and <a href="https://www.iaea.org/sites/default/files/22/06/gov2022-24.pdf">40 kilograms (88 pounds) of 60% enriched uranium</a>. </p>
<p>As a result of this growing stockpile of enriched uranium and the use of advanced centrifuges, Iran’s estimated breakout time has been reduced to a few weeks. So far, however, Iran has not decided to begin production of weapons-grade (90%) enriched uranium, even though it is technically capable of doing so. </p>
<p>Most likely, Iran is behaving cautiously because its leaders are concerned that producing weapons-grade uranium would trigger a strong international reaction, which could range from additional sanctions to military attack.</p><img src="https://counter.theconversation.com/content/186985/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gary Samore Samore previously served as President Barack Obama’s White House Coordinator for Arms Control and Weapons of Mass Destruction (WMD) and President Bill Clinton’s Senior Director for Non-proliferation and Export Controls.</span></em></p>Iran’s pursuit of nuclear weapons centers on producing weapons-grade uranium. Here’s what reports about Iran enriching uranium indicate about its progress toward the bomb.Gary Samore, Professor of the Practice of Politics and Crown Family Director of the Crown Center for Middle East Studies, Brandeis UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1860162022-06-30T20:54:22Z2022-06-30T20:54:22ZSupreme Court’s ‘Remain in Mexico’ ruling puts immigration policy in the hands of voters – as long as elected presidents follow the rules<figure><img src="https://images.theconversation.com/files/471942/original/file-20220630-5543-xzeo13.jpg?ixlib=rb-1.1.0&rect=0%2C41%2C5574%2C3663&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A migrant from Haiti waits with others at a clinic for migrants in Tijuana, Mexico.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAsylumWaitinginMexico/14efcaea327c43fdbc163c1c38b84b70/photo?Query=%22remain%20in%20mexico%22&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=129&currentItemNo=0">AP Photo/Gregory Bull</a></span></figcaption></figure><p>In the <a href="https://www.supremecourt.gov/opinions/slipopinion/21">very last decision of its latest term</a>, the Supreme Court released a major ruling that not only <a href="https://www.nytimes.com/2022/06/30/us/politics/biden-remain-in-mexico-scotus.html">clears a barrier</a> to ending a signature policy of the Trump administration but also signals that the future of immigration policy is in the hands of the electorate.</p>
<p>In <a href="https://www.oyez.org/cases/2021/21-954">Biden v. Texas</a>, the Supreme Court rejected an effort to prevent the current president’s rollback of a Trump-era policy that requires asylum seekers arriving at the U.S. southern land border to be returned to Mexico while their claims were being processed. </p>
<p>The <a href="https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf">5-4 decision</a> means that the case will be returned to the lower courts. But it also makes clear that whoever is control of the White House has the power to change directions in immigration policy – even drastic reversals of policy. It follows that presidents can do the same in other substantive legal areas as well, such as civil rights and environmental protection.</p>
<h2>The rights (and wrongs) of remain</h2>
<p>The issue in Biden v. Texas was whether the Biden administration could <a href="https://www.dhs.gov/migrant-protection-protocols">dismantle a Trump administration policy</a> formally known as <a href="https://www.dhs.gov/archive/migrant-protection-protocols-trump-administration">Migrant Protection Protocols</a> but widely referred to as the “Remain in Mexico” policy.</p>
<p>As part of an array of immigration enforcement measures, the Trump administration <a href="https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration">announced the policy in late 2018</a> in response to numbers of migrants arriving at the U.S.-Mexico border.</p>
<p>But the Migrant Protection Protocols <a href="https://www.axios.com/2022/06/22/remain-in-mexico-migrant-suicide-attempt">came under scrutiny</a> amid concerns over the <a href="https://www.americanoversight.org/investigation/conditions-in-migrant-detention-centers">safety and conditions</a> to which asylum seekers were subjected in camps under the supervision of Mexican authorities. Human Rights Watch <a href="https://www.hrw.org/tag/remain-mexico">found the policy</a> sent “asylum seekers to face risks of kidnapping, extortion, rape, and other abuses in Mexico” while also violating “their right to seek asylum in the United States.”</p>
<p>Yet an attempt by the Biden administration to eliminate the protocols was <a href="https://www.ca5.uscourts.gov/opinions/pub/21/21-10806-CV1.pdf">barred by the U.S. Court of Appeals</a> for the Fifth Circuit. The circuit judges found that the Biden administration had violated immigration law requiring the detention of asylum seekers.</p>
<p>The Supreme Court rejected this ruling. In a <a href="https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf">majority opinion</a> written by Chief Justice John Roberts – joined by Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor and Brett Kavanaugh – the court held that the Biden administration’s decision to terminate the Migrant Protection Protocols did not violate federal immigration law. The state of Texas had argued that ending the “Remain in Mexico” policy violated a provision that every asylum seeker entering the country be returned or detained. </p>
<p>In <a href="https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf#page=34">his dissent</a>, Justice Samuel Alito argued that the statute requires mandatory detention of migrants at the border. Justice Amy Coney Barrett’s <a href="https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf#page=53">dissent expressed</a> the view that the Supreme Court lacked the jurisdiction and that the case should be remanded back to the lower courts.</p>
<h2>Avoid the arbitrary, cease the capricious</h2>
<p>The Supreme Court’s decision means the case will be sent back to the lower court to decide, but with the removal of a major legal obstacle preventing Biden from ending the “Remain in Mexico” policy. The Supreme Court held that the immigration law does not require mandatory detention of all asylum seekers while their claims are being decided.</p>
<p>But moreover, the court made clear that the president has the discretion to change direction in immigration policy and continue, or end, policies of the previous president.</p>
<p>That might seem self-evident. But it comes after another 5-4 decision penned by Chief Justice Roberts – 2020’s <a href="https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf">Department of Homeland Security v. Regents of the University of California</a>, which held that a president could not act irrationally in changing immigration policy.</p>
<p>In that decision, the Supreme Court <a href="https://theconversation.com/supreme-court-ruling-on-dreamers-sends-a-clear-message-to-the-white-house-you-have-to-tell-the-truth-141099">found that the Trump administration had acted in an arbitrary and capricious fashion</a> in rescinding the Obama administration’s <a href="https://www.ice.gov/daca">Deferred Action for Childhood Arrivals</a> – or DACA – policy. That policy provided limited legal status and work authorization to undocumented migrants who came to the country as children, so-called Dreamers.</p>
<p>In the court’s view, the Trump administration had not adequately considered the interests of the migrant children in deciding to rescind the policy and had given inconsistent reasons about the basis for the rescission.</p>
<p>That ruling provided fuel for states to challenge the Biden administration when it attempted to roll back some Trump-era policies. For example, Arizona, along with other states, challenged Biden’s attempt to abandon a proposed rule change by the previous administration that would tighten the requirements on low- and moderate-income noncitizens seeking to come to the U.S. Although the Supreme Court initially accepted review of the case, it ultimately <a href="https://lawprofessors.typepad.com/immigration/2022/06/breaking-news-suprme-court-dismisses-state-efforts-to-defend-trump-administrations-proposed-public-c.html">dismissed the appeal and declined to decide the merits</a>.</p>
<p>In the end, the Supreme Court’s decision in Biden v. Texas stands for the simple proposition that presidential elections matter when it comes to government policy. As long as an incumbent administration follows the rules – including rational deliberation of the policy choices in front of it – it can, the Supreme Court has said, change immigration policy.</p><img src="https://counter.theconversation.com/content/186016/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin Johnson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the last decision of the term, the Supreme Court cleared a barrier for the Biden administration to end a Trump-era policy returning asylum seekers arriving in the US to camps in Mexico.Kevin Johnson, Dean and Professor of Public Interest Law and Chicana/o Studies, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1853692022-06-28T19:53:21Z2022-06-28T19:53:21ZJan. 6 hearings are only the tip of the iceberg when it comes to important congressional oversight hearings<figure><img src="https://images.theconversation.com/files/470377/original/file-20220622-26-nvcdd0.jpeg?ixlib=rb-1.1.0&rect=24%2C12%2C8218%2C5413&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Members of the House committee investigating the Jan. 6 attack listen during the fourth hearing on June 21, 2022, in Washington, D.C. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-house-select-committee-hearing-to-news-photo/1241440996?adppopup=true">Mandel Ngan/POOL/AFP via Getty Images</a></span></figcaption></figure><p>In a series of hearings that have received <a href="https://theconversation.com/how-a-public-hearing-is-different-from-an-investigation-and-what-that-means-for-the-jan-6-committee-184342">prime-time coverage and much public attention</a>, Cassidy Hutchinson’s testimony on the afternoon of June 28 contained perhaps the most explosive revelations thus far. </p>
<p>Speaking before a hastily called hearing of the <a href="https://january6th.house.gov/">House Select Committee to Investigate the January 6 Attack on the United States Capitol</a>, Hutchinson, a former aide to White House Chief of Staff Mark Meadows, revealed that former President Donald Trump was warned about the potential for violence at the Jan. 6 rally and nevertheless wanted security precautions lifted, including the use of magnetometers to detect weapons. <a href="https://www.nytimes.com/2022/06/28/us/meadows-aide-to-testify-before-jan-6-panel-at-surprise-hearing.html?smid=url-share">She also testified that</a> a furious Trump tried to grab control of the steering wheel of his SUV from his Secret Service driver so he could be driven to the Capitol, not the White House, after the rally.</p>
<p>The hearings have provided a meticulously crafted narrative of the events that led to – and took place on – Jan. 6, 2021. Yet despite the revelatory and unique content of these hearings, the select committee’s work represents only a small fraction of the steady stream of oversight work Congress conducts every day. </p>
<p>Oversight, broadly speaking, may best be described as information gathering that is not directly related to a specific bill under consideration by Congress. In the 116th Congress, which met from 2019 to 2020, <a href="https://www.brookings.edu/interactives/tracking-house-oversight-in-the-trump-era/">the House alone held 405 hearings not related to specific pieces of legislation</a>.</p>
<p>What is the nature of this less prominent oversight work? Why is this work important?</p>
<h2>‘Police patrol’ vs. ‘fire alarm’</h2>
<p>The political scientists Matthew McCubbins and Thomas Schwartz have classified Congress’ nonlegislative work as consisting of <a href="https://doi.org/10.2307/2110792">“police patrol” oversight and “fire alarm” investigations</a>. </p>
<p>“Fire alarm” probes are initiated when something specific has gone wrong: a protest that turns violent, perhaps; the government’s <a href="https://www.govinfo.gov/app/details/CRPT-109hrpt377/CRPT-109hrpt377">poor response to a natural disaster</a>; or an agency that is caught wasting taxpayer money. In these investigations, Congress’ job is to figure out what happened and demand some form of justice on behalf of the American public. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a dark suit, white shirt, gesturing with both his hands out and talking to someone across the room." src="https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=359&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=359&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=359&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=451&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=451&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=451&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">‘We were not prepared for this,’ said William Lokey, FEMA’s Federal Coordinating Officer for Louisiana during the response to Hurricane Katrina, in a Jan. 30, 2006, Senate committee hearing investigating the federal government’s poor response to that hurricane.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/william-lokey-chief-of-the-federal-emergency-management-news-photo/56705025?adppopup=true">Chip Somodevilla/Getty Images</a></span>
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<p>Justice could include the firing, resignation or criminal indictment of a government official. That happened most famously in the aftermath of Congress’ Watergate investigation, which led to <a href="https://www.cnn.com/2014/01/23/us/watergate-fast-facts/index.html">President Richard Nixon’s resignation and convictions of three Nixon aides for obstruction of justice</a>. </p>
<p>In addition to this retroactive investigative work, Congress also keeps watch over federal agencies and programs. Like a police car idling on a street before any actual crime is committed, congressional committees oversee what federal agencies are doing to stave off waste, fraud and abuse before it happens. </p>
<p>Committees accomplish this by consistently requesting documents and testimony from agency officials, and also by relying on the work of the independent, nonpartisan agencies such as the <a href="https://www.everycrsreport.com/files/20080910_RL30349_4ca46f580380ac76857b3e32e4be3937b331909a.pdf">Government Accountability Office</a>, commonly referred to as the <a href="https://www.gao.gov/about">“congressional watchdog,”</a> and the <a href="https://crsreports.congress.gov/product/pdf/R/R45450">Offices of Inspectors General</a>. In some cases, Congress will write into law the requirement that agencies provide intermittent updates on the <a href="https://www.everycrsreport.com/files/20200514_R46357_3c89b961380edcaceb4d4623833bf92f93e424b1.pdf">implementation and success of new programs</a>. </p>
<h2>Checks and balances</h2>
<p>While Congress’ power to conduct investigations is not explicit in the U.S. Constitution, <a href="https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-18/implied-power-of-congress-to-conduct-investigations-and-oversight-doctrine-and-practice">the Supreme Court has repeatedly affirmed</a> the legislative branch’s broad oversight powers. </p>
<p>As <a href="https://www.law.cornell.edu/supremecourt/text/354/178">Chief Justice Earl Warren wrote in 1957</a>: “The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. … It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.”</p>
<p>Most importantly, Congress’ power to investigate is a crucial part of the Constitution’s checks-and-balances framework. </p>
<p>Of the federal government’s three branches – legislative, judicial and executive – Congress is the most closely connected to the American people. By ensuring that the president and the large, sprawling federal bureaucracy are held accountable for their mistakes by directly elected representatives, Congress prevents the executive branch from becoming too powerful. While <a href="https://sgp.fas.org/crs/misc/RL32935.pdf">Congress also has some authority to investigate the federal judiciary</a>, it is a much rarer target.</p>
<p>Additionally, an important and yet often overlooked part of accountability is the process of learning, and then applying, practical lessons from past mistakes. Congress’ oversight work looks at government in three dimensions: why things went wrong in the past, how things are going now, and what can be done to make things better in the future. </p>
<p>Committees thus often propose legislative recommendations at the end of investigations. For instance, the Jan. 6 committee may suggest ways in which Congress can <a href="https://www.axios.com/2022/06/05/january-6-committee-electoral-college-reforms">increase the security and legitimacy of American elections</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/470383/original/file-20220622-15-jpgaci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A serious-looking man in a blue suit bangs a gavel on a desktop." src="https://images.theconversation.com/files/470383/original/file-20220622-15-jpgaci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470383/original/file-20220622-15-jpgaci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470383/original/file-20220622-15-jpgaci.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470383/original/file-20220622-15-jpgaci.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470383/original/file-20220622-15-jpgaci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470383/original/file-20220622-15-jpgaci.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470383/original/file-20220622-15-jpgaci.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">House Oversight and Reform Committee Chair Elijah Cummings, D-Md., leads an April 2, 2019, meeting of the committee investigating security clearances granted by the Trump White House.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/WhiteHouseSecurityClearances/95dc3f77a7884cb78388802873c1f6ed/photo?Query=Elijah%20Cummings%20committee&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=&totalCount=135&currentItemNo=44">AP Photo/J. Scott Applewhite</a></span>
</figcaption>
</figure>
<h2>Wider focus</h2>
<p>Congressional committees also may focus entire investigations on broad policy issues – anything from <a href="https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Oversight%20Environment%20Subcommittee%20-%20116th%20Climate%20Change%20Series%20Staff%20Report.pdf">the effects of climate change</a> to <a href="https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.10%20FINAL.pdf">online sex trafficking</a> to <a href="https://info.publicintelligence.net/US-CellSiteSimulatorsPrivacy.pdf">the use of surveillance technology</a>. </p>
<p>These types of investigations are necessary for two reasons: First, members need to understand an issue in depth before they can propose effective legislation. Second, members need to build public support for their particular approach to a problem, and this requires that the people understand it.</p>
<p>For example, in <a href="https://www.cbsnews.com/news/elijah-cummings-new-power-as-house-oversight-committee-chairman-for-investigating-trump-60-minutes/">January 2019, Democratic Rep. Elijah Cummings of Maryland took over the chairmanship</a> of the House Committee on Oversight and Reform after the midterm elections returned Democrats to the majority. <a href="https://www.nytimes.com/2018/12/17/magazine/democrats-trump-investigation.html">Many observers expected</a> that his committee – the only one in the House devoted almost exclusively to oversight – would launch several investigations into then-President Donald Trump’s administration. </p>
<p>Indeed, the committee’s investigators immediately began looking into <a href="https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2019-01-23.EEC%20to%20Cipollone-WH%20re%20Security%20Clearances.pdf">problems with the White House’s security clearance process</a> and <a href="https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2019-07-2019.%20Immigrant%20Child%20Separations-%20Staff%20Report.pdf">child separations at the U.S.-Mexico border</a>, among other issues. </p>
<p>But the committee’s first hearing of the congressional session wasn’t focused on the Trump administration. Instead, it was on a policy issue close to Cummings’ heart: the high cost of prescription drugs. The purpose of the hearing and of the committee’s broader investigation, <a href="https://oversight.house.gov/legislation/hearings/examining-the-actions-of-drug-companies-in-raising-prescription-drug-prices">Cummings said</a>, was to “examine the actions of drug companies in raising prescription drug process and the effects of these actions on federal and state budgets and on American families.” Among the witnesses was <a href="https://docs.house.gov/meetings/GO/GO00/20190129/108817/HHRG-116-GO00-Wstate-WorshamA-20190129.pdf">Antroinette Worsham, whose daughter died because she was forced to ration insulin to treat her diabetes</a>. </p>
<p>During Cummings’ 10-month chairmanship, from January to October 2019, the committee held four hearings on prescription drugs, <a href="https://oversight.house.gov/news/reports">culminating in five reports</a> on the pricing practices at companies like Novartis and Bristol Myers Squibb. In December 2019, the House passed the <a href="https://www.nytimes.com/2019/12/12/us/politics/house-prescription-drug-prices.html">Elijah E. Cummings Lower Drug Costs Now Act</a> with two Republican votes, and <a href="https://www.washingtonpost.com/politics/2021/03/23/health-202-democrats-see-pathway-their-ambitious-drug-pricing-bill/">similar bipartisan legislation is currently under consideration in the Senate</a>. </p>
<p>And following this investigation, the Trump administration also <a href="https://www.kff.org/medicare/issue-brief/a-status-report-on-prescription-drug-policies-and-proposals-at-the-start-of-the-biden-administration/">issued several new directives intended to lower drug prices</a> for American consumers. </p>
<p>Of course, policymaking is a slow process, and change doesn’t happen overnight. But the committee’s drug-pricing investigation not only led to legislative action in the House but also may have contributed to administration action on an issue that appears to inspire genuine cross-party consensus. </p>
<p>There have been instances in which congressional investigations produce more immediate and tangible results. In May 2019, the CEO of TransDigm, a defense contractor, appeared before the House Oversight Committee <a href="https://media.defense.gov/2019/Feb/27/2002093922/-1/-1/1/DODIG-2019-060.PDF">to respond to reports</a> that the company had gouged prices and overcharged the Department of Defense US$16 million for military aircraft. A week later, <a href="https://oversight.house.gov/news/press-releases/transdigm-to-refund-161-million-to-dod-as-a-result-of-committee-investigation">TransDigm agreed to pay the full amount back to the government</a>. </p>
<p><a href="https://oversight.house.gov/news/press-releases/transdigm-to-refund-161-million-to-dod-as-a-result-of-committee-investigation">Said Cummings</a>: “This is solid, bread-and-butter oversight that helps our troops and the American taxpayers. We saved more money today for the American people than our committee’s entire budget for the year.”</p><img src="https://counter.theconversation.com/content/185369/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Leavitt has received funding from the Project on Government Oversight (POGO) and the Levin Center for Oversight and Democracy. </span></em></p>Congress has the power to make sure government serves the public interest. Conducting investigations is one way lawmakers do that.Claire Leavitt, Visiting Assistant Professor of Political Science and Policy Studies, Grinnell CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1830532022-06-15T12:25:51Z2022-06-15T12:25:51ZLegal fights persist over policies that require teachers to refer to trans students by their chosen pronouns<figure><img src="https://images.theconversation.com/files/468326/original/file-20220611-25540-w54pq7.jpg?ixlib=rb-1.1.0&rect=0%2C51%2C5700%2C3737&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Trans student rights often hang in the balance.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/multiracial-group-of-students-sitting-at-desk-in-royalty-free-image/1345022868?adppopup=true">Maskot/Getty Images</a></span></figcaption></figure><p>In Tennessee, a <a href="https://www.nbcnews.com/nbc-out/out-politics-and-policy/transgender-pronoun-bill-advances-tennessees-legislature-rcna2604">proposed law</a> would let public school teachers refuse to call transgender students by the pronouns they use for themselves.</p>
<p>At Shawnee State University – a public university in Ohio – a professor <a href="https://www.cnn.com/2022/04/18/us/ohio-professor-transgender-lawsuit-settlement/index.html">got paid US$400,000</a> to settle a lawsuit that he filed against the school after being disciplined for refusing to refer to a trans woman student as “she” or “her.”</p>
<p>In Loudoun County, Virginia, a public school teacher was suspended for objecting to the use of trans students’ pronouns, but the state’s Supreme Court <a href="https://www.catholicnewsagency.com/news/249613/teacher-suspended-for-speaking-out-on-transgender-preferred-pronoun-policy-reaches-settlement-with-loudoun-county-virginia-school-board">ordered his reinstatement</a> while the case was pending. As in the Shawnee State professor case, the school district <a href="https://www.catholicnewsagency.com/news/249613/teacher-suspended-for-speaking-out-on-transgender-preferred-pronoun-policy-reaches-settlement-with-loudoun-county-virginia-school-board">chose to settle</a>. It also agreed to remove the disciplinary action from the teacher’s file.</p>
<p>As a researcher who focuses on <a href="https://doi.org/10.1080/10474412.2018.1480376">the experiences of trans college students</a>, I see all three cases as part of a disquieting trend: The right of trans students to be free from discrimination is tenuous at best and under <a href="https://adfmedia.org/case/vlaming-v-west-point-school-board">constant legal attack</a>.</p>
<p>In many ways, the legal attacks are coordinated. The Alliance Defending Freedom, a conservative Christian legal group, is <a href="https://www.them.us/story/hate-group-reportedly-behind-2021-anti-trans-bills">behind much of the anti-trans legislation in the U.S.</a> The organization represented the Shawnee State professor and the Virginia schoolteacher in their lawsuits. It is also <a href="https://www.catholicnewsagency.com/news/249613/teacher-suspended-for-speaking-out-on-transgender-preferred-pronoun-policy-reaches-settlement-with-loudoun-county-virginia-school-board">backing other teachers in similar lawsuits</a>.</p>
<h2>At greater risk</h2>
<p>For people on the sidelines, legal fights over the rights of trans students may seem like just one of several contemporary cultural battles or polarizing political debates. But for trans students, the right to be respected and recognized the way they see themselves is a matter of quality of life and – in some cases – a matter of life and death.</p>
<p>Research has <a href="https://doi.org/10.1089/lgbt.2019.0338">consistently shown</a> that trans youths have higher rates of mental health challenges – including depression, anxiety and risk of suicide – than their nontrans peers. This is because of the stress they experience as a result of prejudice and discrimination.</p>
<p>A 2021 survey by the <a href="https://www.thetrevorproject.org/explore/">Trevor Project</a> – a nonprofit organization that conducts suicide prevention and crisis intervention for LGBTQ young people – provides additional insight. It found that if trans and nonbinary youths had been discriminated against in the past year because of their gender identity, they were <a href="https://www.thetrevorproject.org/survey-2021/">twice as likely to attempt suicide</a> as those who did not report discrimination.</p>
<p>The survey also indicated that the more a young person’s pronouns were not respected, the greater the suicide risk.</p>
<p>Thus, regardless of what state or federal law or the courts may say about whether educators must refer to students by the pronouns they use for themselves, there is strong evidence that doing so – or not – can drastically affect students’ mental health.</p>
<h2>Recognition and rights</h2>
<p>At the same time, many K-12 school districts, colleges and universities, states and the federal government do enable trans students to be recognized the way they see themselves.</p>
<p>For example, at the college level, I have found that more than 200 colleges and universities <a href="https://www.campuspride.org/tpc/records/">enable students to indicate their pronouns</a> in the schools’ student information systems. This includes the state university systems in Minnesota, New York and Wisconsin. Students’ pronouns then appear on course rosters and sometimes on other administrative records. At the University of Minnesota, the <a href="https://policy.umn.edu/operations/genderequity">policy states</a> that university members are “expected to use the names, gender identities, and pronouns specified to them by other University members, except as legally required.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/468325/original/file-20220611-24154-c038re.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person holds a sign that reads 'Schools Stand with Trans Kids'" src="https://images.theconversation.com/files/468325/original/file-20220611-24154-c038re.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/468325/original/file-20220611-24154-c038re.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/468325/original/file-20220611-24154-c038re.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/468325/original/file-20220611-24154-c038re.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/468325/original/file-20220611-24154-c038re.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/468325/original/file-20220611-24154-c038re.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/468325/original/file-20220611-24154-c038re.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People hold a rally in Minnesota to support trans kids.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/st-paul-minnesota-march-6-2022-because-the-attacks-against-news-photo/1385207815?adppopup=true">Michael Siluk/UCG/Universal Images Group via Getty Images</a></span>
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</figure>
<p>At the state level, <a href="https://www.lgbtmap.org/equality-maps/safe_school_laws/discrimination">19 states</a> have guidelines for trans inclusion in K-12 public schools. These policies call for trans students to be referred to by the pronouns they use for themselves. For example, the <a href="https://www.doe.mass.edu/sfs/lgbtq/genderidentity.html">Massachusetts policy</a> states that “school personnel should use the student’s chosen name and pronouns appropriate to a student’s gender identity, regardless of the student’s assigned birth sex.” However, none of the policies I have seen actually spells out what will happen if a teacher or professor refuses to respect a trans person’s pronouns.</p>
<h2>Political shifts</h2>
<p>The status of trans student rights is subject to change based on which party is in the White House, controls state legislatures and appoints judges to state and federal courts.</p>
<p>The Alliance Defending Freedom, for instance, is seeking to challenge a <a href="https://townhall.virginia.gov/l/GetFile.cfm?File=C:%5CTownHall%5Cdocroot%5CGuidanceDocs_Proposed%5C201%5CGDoc_DOE_4683_20201208.pdf">Virginia law</a> – passed after Democrats gained control of the Virginia General Assembly in 2020 – that requires state school boards to protect the rights of trans students, including allowing students to “assert a name and gender pronouns that reflect their gender identity.”</p>
<p>The legal status of rights for trans students is constantly changing at the federal level, as shown by how the current and previous two administrations have interpreted <a href="https://www.hhs.gov/civil-rights/for-individuals/sex-discrimination/title-ix-education-amendments/index.html">Title IX of the Education Amendments of 1972</a>. This is the federal law that prohibits sex discrimination in any education program or activity that receives federal funding.</p>
<p>The Obama administration considered anti-trans discrimination to fall under the definition of “sex” in Title IX. For that reason, the Obama administration <a href="https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf">issued guidance</a> in 2016 for schools to protect the rights of trans students. A central provision of this guidance was that “a school must treat students consistent with their gender identity.” This included using the pronouns that students indicate for their identity.</p>
<p>The Trump administration, however, <a href="https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf">rescinded the guidance</a> soon after taking office in 2017. The Trump administration argued that the law’s use of “sex discrimination” was limited to discrimination based on “biological sex,” not gender identity.</p>
<p>Then, at the start of his administration in 2021, President Joe Biden restored the previous understanding of Title IX through an <a href="https://www.federalregister.gov/documents/2021/01/25/2021-01761/preventing-and-combating-discrimination-on-the-basis-of-gender-identity-or-sexual-orientation">executive order</a>. It stated that trans people were covered under the prohibition of sex discrimination in Title IX and other federal laws.</p>
<h2>A matter of equal protection</h2>
<p>The Biden administration rooted its argument on the <a href="https://www.law.cornell.edu/wex/equal_protection">equal protection</a> clause of the Constitution. It also based its position on a <a href="https://www.oyez.org/cases/2019/17-1618">2020 Supreme Court decision</a> that involved anti-LGBT job discrimination.</p>
<p>That Supreme Court ruling is <a href="https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf">Bostock v. Clayton County</a>. It held that the ban on “sex discrimination” in federal employment law – known as <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964#:%7E:text=Title%20VII%20prohibits%20employment%20discrimination,religion%2C%20sex%20and%20national%20origin.">Title VII of the Civil Rights Act of 1964</a> – applied to discrimination on the basis of gender identity and sexual orientation.</p>
<p>The Biden administration contends that if “sex discrimination” in one federal law includes anti-LGBT discrimination, then all federal laws with similar language must be interpreted the same way. From this standpoint, discrimination against trans students, which includes not respecting how they identify their gender, is a violation of Title IX. Violations of Title IX could <a href="https://www.knowyourix.org/college-resources/title-ix/#:%7E:text=Under%20Title%20IX%2C%20schools%20are,risk%20losing%20its%20federal%20funding.">lead to a loss of federal funding</a>. However, on July 15, 2022, a federal judge in Tennessee <a href="https://www.nytimes.com/2022/07/17/us/judge-blocks-biden-lgbt-student-rules.html">temporarily blocked</a> the Department of Education from applying Title IX to trans students until the courts can rule on the matter.</p>
<p>Based on all the political shifts, proposed laws and lawsuits about whether educators must refer to trans students by the pronouns of their choice, it is clear the issue will be a matter of legal controversy for the foreseeable future. A key question is how much harm trans students must endure while society debates whether they have the legal right to be recognized by the pronouns they use for themselves.</p><img src="https://counter.theconversation.com/content/183053/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Genny Beemyn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>For trans students, the right to be recognized by the pronouns they use for themselves is under constant legal attack. A researcher who specializes in the trans student experience takes a closer look.Genny Beemyn, Director, Stonewall Center, UMass AmherstLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1820112022-04-29T12:21:51Z2022-04-29T12:21:51ZWhat’s at stake for Trump, Twitter and politics if the tweeter-in-chief returns from banishment<figure><img src="https://images.theconversation.com/files/460375/original/file-20220428-12-ko7s56.jpg?ixlib=rb-1.1.0&rect=76%2C0%2C5596%2C3785&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Could the former tweeter-in-chief make a Twitter comeback?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-looks-at-his-phone-during-a-news-photo/1250536011?adppopup=true"> Alex Wong/Getty Images</a></span></figcaption></figure><p>Any speculation about <a href="https://www.cnbc.com/2022/04/25/musks-twitter-takeover-biden-officials-worry-trump-will-return-to-platform.html">whether Donald Trump will return to Twitter</a> after <a href="https://www.nytimes.com/2021/01/08/technology/twitter-trump-suspended.html">his permanent suspension</a> in 2021 must begin with two caveats. First, we do not know for sure if, or when, the <a href="https://www.nytimes.com/live/2022/04/25/business/elon-musk-twitter">presumed new owner of the social media platform, Elon Musk</a>, will lift the ban. Second, Trump <a href="https://techcrunch.com/2022/04/25/trump-wont-return-to-twitter/">has said he will not come back</a>. </p>
<p>“I was disappointed by the way I was treated by Twitter,” <a href="https://www.cnbc.com/2022/04/25/donald-trump-says-he-wont-return-to-twitter-if-elon-musk-reverses-ban.html">Trump told CNBC on April 25, 2022</a>. “I won’t be going back on Twitter.”</p>
<p>But if Musk, Trump and social media have taught us anything, it is that the half-life of such caveats can be seconds. It is worth at least considering the premise: What’s at stake for Trump, Twitter and politics if he does return.</p>
<p>The pull of Twitter <a href="https://www.washingtonpost.com/technology/2022/04/25/trump-twitter-elon-musk-reinstatement/">might be irresistible</a> for Trump. Before being kicked off the platform for <a href="https://blog.twitter.com/en_us/topics/company/2020/suspension">what Twitter described as</a> “the risk of further incitement of violence” after the Jan. 6, 2021, attack on the Capitol, Trump was a prolific user of the site. I know this firsthand: Between 2017 and 2021, <a href="https://theconversation.com/i-analyzed-all-of-trumps-tweets-to-find-out-what-he-was-really-saying-154532">I collected and analyzed all of his tweets</a> – some 20,301, excluding retweets and links without comment.</p>
<h2>Different platform, same narrative</h2>
<p>Trump was a potent narrator-in-chief on Twitter. Reaching <a href="https://www.washingtonpost.com/technology/2022/04/25/trump-twitter-elon-musk-reinstatement/">nearly 89 million followers</a> by the time of his suspension was only the beginning. In analyzing his use of Twitter, I found that he built a passionate base of loyalists through a <a href="https://theconversation.com/i-analyzed-all-of-trumps-tweets-to-find-out-what-he-was-really-saying-154532">consistent narrative that reflected their grievances</a>. He <a href="https://www.businessinsider.com/trump-shares-tweet-mocking-biden-face-mask-coronavirus-2020-5">attacked his rivals with mockery</a>, sold himself as the solution to all problems and used the day’s news to <a href="https://www.nytimes.com/2017/02/17/business/trump-calls-the-news-media-the-enemy-of-the-people.html">warn of enemies</a> near and far. </p>
<p>This high-emotion, high-stakes approach seemed impossible for journalists to ignore. That meant his message often jumped from Twitter to <a href="https://firstdraftnews.org/long-form-article/cable-news-trumps-tweets/">much larger audiences</a>, usually thanks to media outlets that treated his tweets as news. </p>
<p>Sometimes it was news. He <a href="https://www.voanews.com/a/usa_trump-fires-defense-secretary-twitter/6198148.html">hired and fired on Twitter</a> and announced many other major decisions there.</p>
<p>Twitter allowed him <a href="https://doi.org/10.1086/694755">to speak directly</a>, without a filter, to his base. At the same time, it was a production plant for a never-ending news cycle. It is hard to imagine the Trump presidency without Twitter. And it might be even harder to imagine that he could <a href="https://www.vox.com/recode/22421396/donald-trump-social-media-ban-facebook-twitter-decrease-drop-impact-youtube">command the same level of attention</a> without it. </p>
<p>Would the public see a different Trump if he returned? Trump’s 16 months in the Twitter wilderness suggest that won’t happen. Examining his primary forms of communication post-Twitter – <a href="https://www.donaldjtrump.com/news/news-d38qgpn9ym1903">press releases</a> on his website and <a href="https://www.rev.com/blog/transcripts/donald-trump-delivers-keynote-speech-in-florida-4-21-22-transcript">speeches</a> – the former president has attacked others, defended himself, picked favorites and enumerated grievances just like he did on Twitter.</p>
<p>Trump seems to be the same digital yarn-spinner who sold a large swath of Americans on his basic premise, <a href="https://theconversation.com/i-analyzed-all-of-trumps-tweets-to-find-out-what-he-was-really-saying-154532">which I summarize as</a>: “The establishment is stopping me from protecting you against invaders.”</p>
<p>Analyzing those post-Twitter communications, it is clear that Trump hasn’t changed this narrative. If anything, the story has become even more potent because the establishment and the invaders are now more regularly one and the same in Trump’s rhetoric. A <a href="https://www.donaldjtrump.com/news/news-hdmbe2yxku1877">sample press release</a> from April 18 indicates as much: </p>
<blockquote>
<p>“… the racist and highly partisan Attorney General of New York State, failed Gubernatorial candidate Letitia James, should focus her efforts on saving the State of New York and ending its reputation as a Crime Capital of the World, instead of spending millions of dollars and utilizing a large portion of her office in going after Donald J. Trump and the Trump Organization (for many years!), who have probably done more for New York than virtually any other person or group …” </p>
</blockquote>
<p>All the elements that characterize Trump’s messaging are there: mocking a supposed persecutor, aggrandizing his own accomplishments and ultimately creating a narrative in which he, and everyone who agrees, is a victim. It taps into a larger narrative that institutions, such as journalists and politicians, have ruined America and harmed its “real” citizens in every way from economics to popular culture. Trump’s presentation of himself as both victim and hero clearly gratifies people who believe that story. </p>
<p>You do not have to look that hard for indicators as to how a Trump return to Twitter could play out – they are seen in the multiple press statements he releases on a daily basis. In four such statements released the day after Musk’s Twitter announcement, Trump railed against the <a href="https://www.donaldjtrump.com/news/news-vu55yk5pjk1946">changing of the Cleveland Indians name</a>, <a href="https://www.donaldjtrump.com/news/news-256kdr5knb1948">endorsed a pro-Trump candidate</a> for Congress and <a href="https://www.donaldjtrump.com/news/news-xnek5yzzjs1949">encouraged supporters to watch a new film</a> made by “incredible Patriots” who were “exposing this great election fraud.” That last statement ended with a rallying call to spread the message that “the 2020 Election was Rigged and Stolen!”</p>
<h2>Blue checks and red lines</h2>
<p>While Trump has stated he will not return to Twitter, <a href="https://www.washingtonpost.com/technology/2022/04/25/trump-twitter-elon-musk-reinstatement/">former advisers</a>, speaking anonymously, are not so sure. That might be because his website where the press releases are posted <a href="https://www.alexa.com/siteinfo/donaldjtrump.com">ranked 34,564th for engagement</a> on April 27, according to Alexa. Twitter, that same day, ranked 12th. <a href="https://truthsocial.com/">Truth Social</a>, the social media app founded by Trump, would have to be wildly successful to offset the power of attention and influence that Trump enjoyed on Twitter.</p>
<p>[<em>Over 150,000 readers rely on The Conversation’s newsletters to understand the world.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-150ksignup">Sign up today</a>.]</p>
<p>What would a Musk-owned Twitter do if Trump, allowed back on the platform, continued to say false and misleading things?</p>
<p>Tagging tweets as false or misleading, <a href="https://www.latimes.com/business/story/2020-11-03/twitter-trump-2020-election-night-tweet-disclaimer">as Trump’s</a> <a href="https://abcnews.go.com/Politics/twitter-flags-trump-tweet/story?id=72970494">frequently were</a> toward the end of his time on Twitter, may, for the “<a href="https://www.theguardian.com/technology/2022/apr/14/how-free-speech-absolutist-elon-musk-would-transform-twitter">free speech absolutist</a>” that Musk claims to be, cross some perceived line. In any case, it might not be that effective. A <a href="https://news.cornell.edu/stories/2022/02/fact-checks-effectively-counter-covid-misinformation">recent experiment</a> at Cornell University found that tagging false claims on a platform such as Facebook or Twitter “had no effect on survey participants’ perception of its accuracy and actually increased their likelihood of sharing it on social media.” </p>
<p>The same study found that fact checking and “rebutting the false claim with links to additional information” was more successful, making people less likely to believe the false information. And Twitter has <a href="https://blog.twitter.com/en_us/topics/product/2021/introducing-birdwatch-a-community-based-approach-to-misinformation">begun experimenting with a fact-checking</a> feature to correct false information on the platform. Paying attention to what happens to that feature might give some indication as to how much will be tolerated from Trump should he go back on Twitter. </p>
<p>Meanwhile, despite Musk’s <a href="https://twitter.com/elonmusk/status/1517215066550116354">desire to go after Twitter bots</a> – the presence of which are thought to have amplified Trump’s voice and <a href="https://time.com/5286013/twitter-bots-donald-trump-votes/">potentially his share of the vote</a> – <a href="https://blog.twitter.com/common-thread/en/topics/stories/2021/four-truths-about-bots">that may prove a difficult undertaking</a>. </p>
<h2>I’ve changed … really</h2>
<p>How will the media respond should the former president return to Twitter, given his previous success in using the platform <a href="https://doi.org/10.1177/1461444819893987">to spark media coverage</a>. Research has found that not only was Trump successful in <a href="https://doi.org/10.1177/1461444819893987">boosting coverage of himself through tweeting</a>, he was also able to <a href="https://doi.org/10.1038/s41467-020-19644-6">divert media from reporting on potentially negative topics</a> that could hurt his standing by tweeting about something completely different.</p>
<p>It’s not clear whether the media will again choose to follow and amplify Trump’s tweets with the same frequency.</p>
<p>Meanwhile, changing a platform like Twitter to address some of the concerns associated with a returning Trump is a massive undertaking. And the chances of Trump himself changing seem even less likely. So should it happen, don’t be surprised if a Trump-Twitter reunion looks a lot like the first go-round.</p><img src="https://counter.theconversation.com/content/182011/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Humphrey does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Analysis of Trump’s post-Twitter communications suggest that the former president has not moderated his messaging style. So what does that mean if he were to go back on Twitter?Michael Humphrey, Assistant Professor of Journalism and Media Communication, Colorado State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1714752022-02-17T13:20:29Z2022-02-17T13:20:29ZThe Supreme Court could hamstring federal agencies’ regulatory power in a high-profile air pollution case<figure><img src="https://images.theconversation.com/files/446362/original/file-20220214-21-129d4ri.jpg?ixlib=rb-1.1.0&rect=15%2C0%2C5277%2C3396&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Coal piles outside of PacifiCorp's Hunter power plant in Castle Dale, Utah.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pacificorps-hunter-coal-fired-power-pant-releases-steam-as-news-photo/1182367634">George Frey, AFP, via Getty Images</a></span></figcaption></figure><p>On Feb. 28, 2022, the U.S. Supreme Court will hear oral arguments in <a href="https://www.scotusblog.com/case-files/cases/west-virginia-v-environmental-protection-agency/">West Virginia v. EPA</a>, a case that centers on the U.S. Environmental Protection Agency’s authority to regulate greenhouse gas emissions that drive climate change. How the court decides the case could have broad ramifications, not just for climate change but for federal regulation in many areas.</p>
<p>This case stems from actions over the past decade to reduce greenhouse gas emissions from power plants, a centerpiece of U.S. climate change policy. In 2016, the Supreme Court blocked the Obama administration’s <a href="https://www.scientificamerican.com/article/u-s-supreme-court-blocks-obama-s-clean-power-plan/">Clean Power Plan</a>, which was designed to reduce these emissions. The Trump administration repealed the Clean Power Plan and replaced it with the far less stringent <a href="https://www.epa.gov/stationary-sources-air-pollution/proposal-affordable-clean-energy-ace-rule">Affordable Clean Energy Rule</a>. Various parties challenged that measure, and a <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/6356486C5963F49185258662005677F6/$file/19-1140.correctedopinion.pdf">federal court invalidated it</a> a day before Trump left office. </p>
<p>The EPA now says that it has no intention to proceed with either of these rules, and plans to issue an <a href="https://www.eenews.net/articles/epa-forges-ahead-on-power-plant-rule-amid-legal-showdown/">entirely new set of regulations</a>. Under such circumstances, courts usually wait for agencies to finalize their position before stepping in. This allows agencies to evaluate the evidence, apply their expertise and exercise their policymaking discretion. It also allows courts to consider a concrete rule with practical consequences.</p>
<p>From my work as an <a href="https://scholar.google.com/citations?hl=en&user=njpqfiQAAAAJ">environmental law scholar</a>, the Supreme Court’s decision to hear this case is surprising, since it addresses regulations the Biden administration doesn’t plan to implement. It reflects a <a href="https://www.politico.com/news/2020/09/25/supreme-court-regulations-biden-421934">keen interest on the part of the court’s conservative majority</a> in the government’s power to regulate – an issue with impacts that extend far beyond air pollution. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/tFHDE52B1qU?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">On Oct. 14, 2020, then-Sen. Kamala Harris questions Supreme Court nominee Amy Coney Barrett about her views on climate change.</span></figcaption>
</figure>
<h2>How much latitude does the EPA have?</h2>
<p>The court granted petitions from coal companies and Republican-led states to consider four issues. First, under Section 111 of the Clean Air Act, can the EPA control pollution only by considering direct changes to a polluting facility? Or can it also employ “beyond the fenceline” approaches that involve broader policies? </p>
<p><a href="https://www.law.cornell.edu/uscode/text/42/7411">Section 111</a> directs the EPA to identify and regulate categories of air pollution sources, such as oil refineries and power plants. The agency must determine the “best system of emission reduction” for each category and issue guidelines quantifying the reductions that are achievable under this system. States then submit plans to cut emissions, either by adopting the best system identified by the EPA or choosing alternative ways to achieve equivalent reductions.</p>
<p>In determining how to cut emissions, the Trump administration considered only changes that could be made directly to coal-fired power plants. The Obama administration, in contrast, also considered replacing those plants with electricity from lower-carbon sources, such as natural gas and renewable fuels. </p>
<p>The question of EPA’s latitude under Section 111 implicates a landmark decision of administrative law, <a href="https://supreme.justia.com/cases/federal/us/467/837/">Chevron v. Natural Resources Defense Council</a>. That 1984 ruling instructs courts to follow a two-step procedure when reviewing an agency’s interpretation of a statute. </p>
<p>If Congress has given clear direction on the question at issue, courts and agencies must follow Congress’ expressed intent. However, if the statute is “silent or ambiguous with respect to the specific issue,” then courts should defer to the agency’s interpretation of the statute as long as it is reasonable. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supreme Court Associate Justice Neil Gorsuch speaks at a Federalist Society Convention in Washington, D.C., Nov. 16, 2017." src="https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">As an appeals court judge, Supreme Court Justice Neil Gorsuch sharply criticized the idea that courts should generally defer to agencies’ interpretations of federal law.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpJudicialNominations/d0b45c1138dd4e968d5a83a66c6d4dc6/photo">AP Photo/Sait Serkan Gurbuz</a></span>
</figcaption>
</figure>
<p>In recent years, conservative Supreme Court justices have <a href="https://dlj.law.duke.edu/article/the-future-of-chevron-deference-hickman-vol70-iss5/">criticized the Chevron decision as too deferential</a> to federal agencies. This approach, they suggest, allows unelected regulators to exercise too much power. </p>
<p>Could this case enable the court’s conservatives to curb agencies’ authority by eliminating Chevron deference? Perhaps not. This case presents a less-than-ideal vehicle for revisiting Chevron’s second step. </p>
<p>The Trump EPA argued that the “beyond the fenceline” issue should be resolved under the first step of Chevron. Section 111, the administration contended, flatly forbids the EPA from considering shifting to natural gas or renewable power sources. The lower court accordingly resolved the case under Chevron’s first step – rejecting the Trump EPA argument – and did not decide whether EPA’s view merited deference under Chevron’s second step. </p>
<p>Chevron deference aside, a restrictive interpretation of Section 111 could have serious implications for EPA’s regulatory authority. A narrow reading of Section 111 could rule out important and proven regulatory tools for reducing carbon pollution, including <a href="https://theconversation.com/george-h-w-bush-understood-that-markets-and-the-environment-werent-enemies-108011">emissions trading</a> and <a href="https://theconversation.com/trump-may-dismantle-the-epa-clean-power-plan-but-its-targets-look-resilient-68460">shifting to cleaner fuels</a>.</p>
<h2>Do climate change regulations infringe on state authority?</h2>
<p>The second question focuses on Section 111’s allocation of authority between the states and the federal government. The Clean Air Act requires the EPA to issue emission reduction guidelines that states must follow in establishing pollution standards. </p>
<p>In repealing the Clean Power Plan, the Trump administration argued that the plan coerced states to apply EPA’s standards, violating the federal-state balance reflected in Section 111. Republican-led states are now making <a href="https://www.supremecourt.gov/DocketPDF/20/20-1530/204918/20211213175459245_Merits%20Brief%20of%20Petitioner%20the%20State%20of%20North%20Dakota%2020-1530.pdf">this same argument</a>.</p>
<p>However, the matter before the court is the Trump administration’s Affordable Clean Energy Rule, which does not present the same federalism issue. The question of whether the now-abandoned Clean Power Plan left the states sufficient flexibility is moot. </p>
<p>In my view, the court’s willingness to nonetheless consider federalism aspects of Section 111 could bode poorly for the EPA’s ability to issue meaningful emission reduction guidelines in the future.</p>
<p><iframe id="mXoDt" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/mXoDt/3/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Is carbon pollution from power plants a ‘major question’?</h2>
<p>The third issue that the court will consider is whether regulation of power plant carbon emissions constitutes a “major question.” The <a href="https://opencasebook.org/casebooks/1045-public-institutions-administrative-law-cases-materials/resources/4.2.4.1-major-questions-doctrine">major questions doctrine</a> provides that an agency may not regulate without clear direction from Congress on issues that have vast economic or political impacts. </p>
<p>The Supreme Court has never defined a major question, and it <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3927233">has applied the doctrine on only five occasions</a>. In the most prominent instance, in 2000, it <a href="https://www.law.cornell.edu/supct/html/98-1152.ZO.html">invalidated the Food and Drug Administration’s attempt to regulate tobacco</a>. The court noted that the agency had never regulated tobacco before, its statutory authority over tobacco was unclear, and Congress had consistently assumed that the FDA lacked such authority. </p>
<p>By comparison, the Supreme Court has <a href="https://www.supremecourt.gov/opinions/06pdf/05-1120.pdf">affirmed</a> and <a href="https://www.supremecourt.gov/opinions/13pdf/12-1146_4g18.pdf">reaffirmed</a> the EPA’s authority to regulate greenhouse gases under the Clean Air Act, and the agency’s authority to regulate power plant pollution under Section 111 is not in doubt. </p>
<p>However, when the Supreme Court struck down the workplace COVID-19 vaccine-or-test mandate on Jan. 13, 2022, Justice Neil Gorsuch penned a concurrence touting the major questions doctrine’s potential to <a href="https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf">check the power of federal agencies</a>. An expansive interpretation of the major questions doctrine here could cripple EPA’s ability to respond to climate change under the Clean Air Act. </p>
<p>If the court demands more specific statutory authorization, Congress may not be up to the task. Indeed, many observers fear a broad interpretation of the doctrine might have <a href="https://www.newyorker.com/news/daily-comment/the-supreme-court-case-that-could-upend-efforts-to-protect-the-environment">repercussions far beyond climate change</a>, radically curbing federal agencies’ power to protect human health and the environment, in response to both new threats such as the COVID-19 pandemic and familiar problems such as food safety. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1480636814918656007"}"></div></p>
<h2>Has Congress delegated too much power to the EPA?</h2>
<p>Finally, the court will consider whether Section 111 delegates too much lawmaking authority to EPA – a further opportunity for conservative justices to curb the power of federal agencies. The <a href="https://www.law.cornell.edu/wex/nondelegation_doctrine">nondelegation doctrine</a> bars Congress from delegating its core lawmaking powers to regulatory agencies. When Congress authorizes agencies to regulate, it must give them an “intelligible principle” to guide their rulemaking discretion. </p>
<p>For decades, the court has reviewed statutory delegations of power deferentially. In fact, it has not invalidated a statute for violating the nondelegation doctrine since the 1930s. </p>
<p>In my view, Section 111 should easily satisfy the “intelligible principle” test. The statute sets out specific factors for the EPA to consider in determining the best system of emission reduction: costs, health and environmental impacts, and energy requirements. </p>
<p>Still, the case presents an opportunity for the court’s conservatives to invigorate the nondelegation doctrine. <a href="https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf">A 2019 dissenting opinion by Justice Gorsuch</a>, joined by Chief Justice John Roberts and Justice Clarence Thomas, advocated a more stringent approach in which agencies would be limited to making necessary factual findings and “filling up the details” in a federal statutory scheme. Whether Section 111 – or many other federal laws – would survive this approach is unclear. </p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-youresmart">You can read us daily by subscribing to our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/171475/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Lin was a trial attorney for the Environment and Natural Resources Division of the U.S. Department of Justice from 1998 to 2003. He served as a law clerk to the Honorable Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit and to the Honorable James Browning of the U.S. Court of Appeals for the Ninth Circuit.</span></em></p>West Virginia v. EPA could be the opportunity that conservative justices have been seeking to curb federal power.Albert C. Lin, Professor of Law, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1753812022-01-20T19:16:29Z2022-01-20T19:16:29ZSupreme Court rejects Trump’s blocking of Jan. 6 docs: 3 key takeaways from ruling<figure><img src="https://images.theconversation.com/files/441785/original/file-20220120-17-1taf4y0.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C2842%2C2021&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Some things can't be hidden from public view.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-waves-as-he-returns-to-the-white-news-photo/1177283798?adppopup=true">Mark Wilson/Getty Images</a></span></figcaption></figure><p>In a legal blow for Donald Trump, the <a href="https://news.bloomberglaw.com/us-law-week/supreme-court-rejects-trump-clears-disclosure-of-jan-6-papers">Supreme Court has cleared the way</a> for presidential records dating from his time in office to be turned over to a House committee investigating the Jan. 6 attack.</p>
<p>Trump, through his lawyers, had sought to shield over <a href="https://www.bloomberg.com/news/articles/2022-01-19/supreme-court-rejects-trump-clears-disclosure-of-jan-6-papers">800 pages of information</a> from the panel, citing <a href="https://www.economist.com/the-economist-explains/2021/11/10/what-is-executive-privilege">executive privilege</a>, which allows for a president to withhold certain information from public release. But in <a href="https://www.supremecourt.gov/opinions/21pdf/21a272_9p6b.pdf">a 8-1 ruling</a>, the Supreme Court on Jan. 19, 2022, rejected a request to block the documents from being handed to Congress.</p>
<p>The ruling has immediate – and potentially longer-term – consequences. Here are three key takeaways from the court’s decision. </p>
<h2>1. Executive power has its limits</h2>
<p>Trump has championed an expansive view of executive power. During his presidency, he refused to provide information to Congress by <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">asserting executive privilege</a> over a dozen times, issued executive orders in the face of congressional opposition, and even <a href="https://casetext.com/case/trump-v-mazars-usa-llp-2">sued his personal and business accountants</a> to prevent them from handing personal tax information over to Congress, which had subpoenaed those records.</p>
<p>Unlike previous presidents, Trump refused to negotiate with Congress over disclosing White House records. Instead, he took his fights with Congress to the courts.</p>
<p>Out of office, Trump continues to resist efforts to disclose information about his presidency. He has <a href="https://theconversation.com/steve-bannon-faces-criminal-charges-over-jan-6-panel-snub-setting-up-a-showdown-over-executive-privilege-169996">urged several former White House staffers</a> and advisers to claim executive privilege in response to subpoenas for information related to the Jan. 6 Capitol attack. The Congress has even had to take the extraordinary step of referring former Trump adviser <a href="https://theconversation.com/steve-bannon-faces-criminal-charges-over-jan-6-panel-snub-setting-up-a-showdown-over-executive-privilege-169996">Steve Bannon</a> and former <a href="https://www.nbcnews.com/politics/congress/house-expected-vote-mark-meadows-criminal-contempt-referral-n1285908">White House Chief of Staff</a> Mark Meadows to the Department of Justice for criminal contempt proceedings because they have refused to comply with subpoenas. </p>
<p>Federal courts <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">do not like to wade into disputes</a> between the executive branch and Congress, but Trump pushed them to do so.</p>
<p>In its short opinion, the Supreme Court rejected Trump’s expansive view of executive power. The court denied Trump’s request to prevent the National Archives from releasing documents to the committee, stating that his case to shield the records could not prevail “<a href="https://www.supremecourt.gov/opinions/21pdf/21a272_9p6b.pdf">under any of the tests</a> [he] advocated.” </p>
<p>The court added, “Because the court of appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former president necessarily made no difference in the decision.”</p>
<p>It isn’t the first time that the Supreme Court has had to wade into the issue of Trump’s attempted use of executive power to withhold information from Congress.</p>
<p>In a 2020 ruling in <a href="https://casetext.com/case/trump-v-mazars-usa-llp-2">Trump v. Mazars</a> – in which Trump sued his accountants in a bid to prevent their release of tax documents to Congress – the court rejected Trump’s claim of absolute immunity from congressional process and crafted a new analysis to determine when Congress can obtain a president’s personal records.</p>
<p>Similarly, in the latest ruling the Supreme Court appears to be pushing back against Trump’s expansive view of executive power in favor of a more balanced approach.</p>
<h2>2. Unanswered question over ex-presidents and executive privilege</h2>
<p>Although the justices questioned Trump’s expansive view on executive power, the Supreme Court ruling still preserves the ability of a former president to raise such a claim.</p>
<p>This is consistent with <a href="https://theconversation.com/house-committee-investigating-capitol-insurrection-has-a-lot-of-power-but-its-unclear-it-can-force-trump-to-testify-165294">a landmark 1977 decision</a> in which the Supreme Court held that former President Richard Nixon could claim executive privilege in challenging a federal law known as “The Presidential Recordings and Materials Preservation Act.”</p>
<p>That <a href="https://www.archives.gov/presidential-libraries/laws/1974-act.html">law ensured that government agencies</a> – and, ultimately, the public – could obtain certain documents and tape recordings made during Nixon’s presidency.</p>
<p>The court allowed Nixon to make the executive privilege claim, but it ultimately ruled against him. In upholding the law, the Supreme Court noted that the lack of support for Nixon’s claim by other presidents weakened his case for executive privilege. </p>
<p>The court, in its latest ruling, did not consider the questions of whether and under what conditions a former president may be able to prevail on a claim of executive privilege.</p>
<h2>3. The importance of congressional oversight</h2>
<p>The Supreme Court’s ruling also reiterated the importance of congressional oversight, and the need for the American people to learn the truth about what happened on Jan. 6, 2021.</p>
<p>[<em>Over 140,000 readers rely on The Conversation’s newsletters to understand the world.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-140ksignup">Sign up today</a>.]</p>
<p>By paving the way for the House Select Committee to access hundreds of documents – including visitor and call logs, emails, draft speeches and handwritten notes – the court has seemingly recognized that a healthy, stable democracy depends on people knowing what their government is doing so they can hold elected officials accountable.</p>
<p>As such, the Supreme Court has indicated a willingness to protect a constitutional system that can ensure transparency and accountability by legitimizing legislative branch oversight over the executive.</p><img src="https://counter.theconversation.com/content/175381/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kirsten Matoy Carlson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Justices have cleared the way for hundreds of Trump administration documents to be handed to a panel investigating the Jan. 6 attack. A law scholar explains what that means for executive privilege.Kirsten Matoy Carlson, Associate Professor of Law and Adjunct Associate Professor of Political Science, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1723602022-01-05T13:48:38Z2022-01-05T13:48:38ZAfter Afghanistan, US military presence abroad faces domestic and foreign opposition in 2022<figure><img src="https://images.theconversation.com/files/438361/original/file-20211219-13-mmx5ga.jpg?ixlib=rb-1.1.0&rect=112%2C77%2C5492%2C3552&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. Army soldiers walk to their C-17 cargo plane for departure on May 11, 2013, at Bagram Air Base in Afghanistan.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/army-soldiers-walk-to-their-c-17-cargo-plane-for-departure-news-photo/483252999?adppopup=true">Robert Nickelsberg/Getty Images</a></span></figcaption></figure><p>In August 2021, the <a href="https://theconversation.com/the-us-withdraws-from-afghanistan-after-20-years-of-war-4-questions-about-this-historic-moment-164300">U.S. military withdrew from Afghanistan</a> after fighting a war there for nearly 20 years. </p>
<p>In addition to Afghanistan, the U.S. has reduced its military presence in several other conflict zones in recent years. It has lowered troop levels in Iraq from 170,000 in 2007 to 2,500 in 2021, and in Syria from 1,700 in 2018 to around 900 today. While these reductions may seem like a U.S. military withdrawal from the world stage, its presence overseas remains vast. </p>
<p>As <a href="https://www.boisestate.edu/sps-politicalscience/faculty/michael-a-allen/">political scientists</a>, <a href="https://www.k-state.edu/polsci/faculty-staff/martinezmachain-carla.html">we</a> <a href="https://www.k-state.edu/polsci/faculty-staff/Flynn.html">examine</a> the costs, <a href="https://www.cambridge.org/core/journals/american-political-science-review/article/abs/outside-the-wire-us-military-deployments-and-public-opinion-in-host-states/BEC8A7BA48C9CF5B82B100CCC4CFA56E">benefits and perceptions</a> of U.S. military deployments abroad. <a href="https://doi.org/10.1177/07388942211030885">Our research shows</a> that though the scope and location of its deployments may change, the U.S. military remains an influential global player. </p>
<p>Domestically, pressures to <a href="https://www.foreignaffairs.com/articles/2020-02-10/getting-less">reduce the defense budget</a> make overseas deployments an attractive target to cut. Internationally, <a href="https://www.nytimes.com/2008/04/21/world/americas/21ecuador.html">opposition</a> to hosting the U.S. military can also increase the cost of maintaining bases. </p>
<p>For the U.S. to maintain its influence, it will have to adapt to these increasing international and domestic pressures against its foreign military presence. Alternatively, the gradual withdrawal from its overseas commitments will make it harder for the U.S. to maintain its alliances and the international institutions it has crafted.</p>
<h2>A history of deployments</h2>
<p>U.S. military deployments and bases reassure allies, deter rivals and support humanitarian missions and military training. They also act as a command center for varied operations, including drug interdiction and counterterrorism. A base gives the U.S. the ability to <a href="https://tnsr.org/2021/06/the-truth-about-tripwires-why-small-force-deployments-do-not-deter-aggression/">credibly respond</a> to emerging threats and crises in a region.</p>
<p>They can range from small listening posts with a handful of people to a virtual city like <a href="https://home.army.mil/humphreys/index.php">Camp Humphreys in South Korea</a>, which hosts over 35,000 military and civilian personnel. </p>
<p>We recently <a href="https://github.com/meflynn/troopdata">published updated data</a> on the number of U.S. troops deployed overseas, based on reports published by the Department of Defense’s <a href="https://dwp.dmdc.osd.mil/dwp/app/main">Defense Manpower Data Center</a>. The data shows that in 2021 the U.S. had 171,477 service members located overseas, a small decease from 177,571 in 2020.</p>
<p>Beyond personnel, the <a href="https://www.acq.osd.mil/eie/Downloads/BSI/Base%20Structure%20Report%20FY18.pdf">U.S. owns over 600 locations</a> used by the military in countries and territories. These sites range from larger bases and training ranges to smaller sites, including petroleum product storage stations in Turkey and Portugal and Army <a href="https://www.motherjones.com/politics/2014/01/pentagon-military-golf-courses-map/">golf courses</a> in Germany and South Korea. </p>
<p><iframe id="9vhRd" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/9vhRd/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>The U.S. established its first permanent overseas military facility at Guantánamo Bay, Cuba, in 1898 at the end of the Spanish-American War. The U.S. <a href="https://www.ourdocuments.gov/doc.php?flash=false&doc=55">Platt Amendment</a> stipulated the legal option for the U.S. to buy or lease land from Cuba in perpetuity. Notably, the Cuban government does not recognize the U.S. right to hold Guantánamo and <a href="https://www.reuters.com/article/idUSN17200921">does not cash the U.S.’s monthly US$4,085 rent checks</a>. Beyond that, except for bases in the Philippines, U.S. bases remained limited worldwide until World War II.</p>
<p>The Second World War saw the U.S. expand its base network through <a href="https://www.cfr.org/blog/twe-remembers-destroyers-bases-deal">aid agreements</a> and the military occupation of Germany and Japan. Over 16 million service members were mobilized for the war, and around <a href="https://www.history.com/news/world-war-ii-allied-victory-europe-japan-photos">7.6 million were deployed</a> to conflicts in Europe, Asia and Africa. Bases in this period were established or leased in areas like Canada, France, Germany, Japan and Guam.</p>
<p>After the war, the number of U.S. personnel overseas declined globally. Yet new engagements in North Korea, Vietnam, Iraq and Afghanistan were accompanied by rapid and large deployments to Asia and the Middle East. </p>
<h2>A shifting presence</h2>
<p>While the U.S. has maintained a global military presence for the last 70 years, its approach has changed over time.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/438280/original/file-20211217-27-1jvc55u.gif?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/438280/original/file-20211217-27-1jvc55u.gif?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=342&fit=crop&dpr=1 600w, https://images.theconversation.com/files/438280/original/file-20211217-27-1jvc55u.gif?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=342&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/438280/original/file-20211217-27-1jvc55u.gif?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=342&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/438280/original/file-20211217-27-1jvc55u.gif?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=430&fit=crop&dpr=1 754w, https://images.theconversation.com/files/438280/original/file-20211217-27-1jvc55u.gif?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=430&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/438280/original/file-20211217-27-1jvc55u.gif?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=430&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Deployments from 1950-2021 by country, using data from Allen, Flynn, Machain Martinez (2021).</span>
<span class="attribution"><span class="source">Michael A. Allen</span></span>
</figcaption>
</figure>
<p>Recently, U.S. military deployments, many without a formal U.S. military base, have been used to help counter China’s expanding influence in Africa. Though China’s involvement in Africa has generally been economic, the establishment of the Chinese People’s Liberation Army Support Base in Djibouti in 2017, coupled with recent news of China’s plans to build its first <a href="https://www.wsj.com/articles/china-seeks-first-military-base-on-africas-atlantic-coast-u-s-intelligence-finds-11638726327">Atlantic base in Equatorial Guinea</a>, suggest that China may seek increased military influence in Africa in the future.</p>
<p>Comparing the U.S. military presence in Africa between 2001 and 2021, we can see an increased number of African states with U.S. forces present. Notably, in 2007, the U.S. established <a href="https://www.africom.mil/">Africa Command</a>, a regional Defense Department command, based in Germany, specifically responsible for operations in and relations with all countries in Africa.</p>
<p>The U.S. has maintained a broad number of small deployments throughout the continent during this time. Many are composed of special operations and special forces units focusing on <a href="https://www.cfr.org/interview/risks-reducing-us-special-operations-africa">counterterror and military training operations</a>. Djibouti is particularly notable, as the U.S., China, France and the United Kingdom all have military facilities there.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/438981/original/file-20211223-15-1vc35ke.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/438981/original/file-20211223-15-1vc35ke.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/438981/original/file-20211223-15-1vc35ke.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/438981/original/file-20211223-15-1vc35ke.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/438981/original/file-20211223-15-1vc35ke.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/438981/original/file-20211223-15-1vc35ke.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/438981/original/file-20211223-15-1vc35ke.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Between 2001 and 2021, the U.S. significantly grew its deployments in Africa.</span>
</figcaption>
</figure>
<h2>Reducing the U.S. military footprint</h2>
<p>The scope of the U.S. global military footprint has become increasingly contentious <a href="https://sgp.fas.org/crs/natsec/RL33148.pdf">in Congress</a> in recent decades and in <a href="https://www3.nhk.or.jp/nhkworld/en/news/20211214_29/">some of the countries</a> hosting U.S. personnel. </p>
<p>The <a href="https://www.washingtonpost.com/politics/2019/11/26/trump-wants-south-korea-japan-pay-more-defense/">Trump administration sought</a> to reduce the number of troops in countries that failed to increase their share of the cost for hosting U.S. troops.</p>
<p>The Biden administration has reversed some Trump-era policies. For example, it <a href="https://www.washingtonpost.com/politics/2021/02/11/biden-will-stop-us-troop-drawdown-germany-also-push-smaller-deployments-around-world/">stopped Trump’s planned troop drawdown in Germany</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/437834/original/file-20211215-25-12eeypj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protesters hold placards." src="https://images.theconversation.com/files/437834/original/file-20211215-25-12eeypj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/437834/original/file-20211215-25-12eeypj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=416&fit=crop&dpr=1 600w, https://images.theconversation.com/files/437834/original/file-20211215-25-12eeypj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=416&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/437834/original/file-20211215-25-12eeypj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=416&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/437834/original/file-20211215-25-12eeypj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=523&fit=crop&dpr=1 754w, https://images.theconversation.com/files/437834/original/file-20211215-25-12eeypj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=523&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/437834/original/file-20211215-25-12eeypj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=523&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">South Korean protesters hold placards showing a caricature of U.S. President Donald Trump outside a U.S. Army base in Seoul in 2017.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/south-korean-protestors-hold-placards-showing-a-caricature-news-photo/831201072?adppopup=true">Jung Yeon-Je/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>Yet the Biden administration also continues to explore ways the U.S. could adjust its military footprint. The Defense Department, in November 2021, <a href="https://www.defense.gov/News/Releases/Release/Article/2855801/dod-concludes-2021-global-posture-review/">announced</a> the completion of its Global Posture Review, examining the U.S. military’s presence overseas. </p>
<p>Both administrations’ preference <a href="https://www.businessinsider.com/biden-reviews-military-posture-as-calls-to-close-bases-grow-2021-3">to cut the number of overseas personnel</a> is rooted in the political and financial costs of maintaining deployments. The ability to use new technologies, such as drones, rather than people in combat operations, has also allowed U.S. policymakers to shift away from larger bases. </p>
<p>Instead of a massive complex like Ramstein Air Base in Germany that the Defense Department values at $12.6 billion, it can spend just over $100 million to build small sites for drone operations like <a href="https://www.nytimes.com/2018/04/22/us/politics/drone-base-niger.html">Niger Air Base 201</a>.</p>
<p>However, if the U.S. wishes to continue to influence regional politics and use its military as a <a href="https://tnsr.org/2021/06/the-truth-about-tripwires-why-small-force-deployments-do-not-deter-aggression/">credible deterrent</a> to rival powers, technology alone is unlikely to be sufficient. </p>
<h2>Shared opportunities and pitfalls</h2>
<p>We have <a href="https://theconversation.com/why-does-the-us-pay-so-much-for-the-defense-of-its-allies-5-questions-answered-127683">discussed previously</a> how the U.S. gains influence and ease of operating in exchange for the defense of other nations. But this American gain comes with several costs for host states. </p>
<p>Deployments can cause <a href="https://www.nytimes.com/2003/02/17/world/germans-near-air-base-don-t-hate-us-just-the-noise.html">noise pollution</a>, <a href="https://www.science.org/content/article/new-military-base-could-seal-fate-okinawa-dugong">long-term environmental harm</a>, <a href="https://journals.sagepub.com/doi/abs/10.1177/0095327X211011578">opportunities for crime</a> and stoke broader grievances about imperialism and militarism. And they can generate <a href="https://www.airforcetimes.com/news/your-air-force/2020/01/19/wrong-side-drivers-near-air-base-used-by-american-forces-worry-uk-police/">traffic and accidents</a> when local driving customs differ substantially from what U.S. troops are accustomed to, or where large and frequent military convoys traverse busy locations. </p>
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<p>Opposition movements built upon grievances with the U.S. presence have fueled national movements to remove U.S. bases in <a href="https://www.washingtonpost.com/world/2019/10/19/seoul-students-scale-wall-us-embassy-protest-american-troop-presence-south-korea/">South Korea</a> and <a href="http://www.genuinesecurity.org/partners/okinawa.html">Japan</a>. </p>
<p>In some cases, like <a href="https://www.washingtonpost.com/archive/politics/1992/11/24/us-military-ends-role-in-philippines/a1be8c14-0681-44ab-b869-a6ee439727b7/">the Philippines</a>, such movements have been successful. Over time, formerly autocratic host countries have become democratic, like South Korea, and have made public support by the civilians of host states critical if the U.S. desires to maintain its troops overseas. </p>
<p>Both increasing external competition and growing domestic political pressures may lead to reduced opportunities for the U.S. as it navigates new and existing host relationships.</p><img src="https://counter.theconversation.com/content/172360/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael A. Allen has received research funding from the Department of Defense's Minerva Initiative, the US Army Research Laboratory, and the US Army Research Office.</span></em></p><p class="fine-print"><em><span>Carla Martinez Machain has received funding from the Department of Defense's Minerva Initiative, the US Army Research Laboratory, and the US Army Research Office.</span></em></p><p class="fine-print"><em><span>Michael E. Flynn has received research funding from the Department of Defense's Minerva Initiative, the US Army Research Laboratory, and the US Army Research Office.</span></em></p>If the United States expects to sustain its global influence, it will have to navigate increasing international and domestic pressure against its foreign military presence.Michael A. Allen, Associate Professor of Political Science, Boise State UniversityCarla Martinez Machain, Associate Professor of Political Science, Kansas State UniversityMichael E. Flynn, Associate Professor of Political Science, Kansas State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1730162021-12-10T00:34:26Z2021-12-10T00:34:26ZAppeals court says Trump has given ‘no legal reason’ to defy Congress’ demand for Jan. 6 documents, but Supreme Court may have final say<figure><img src="https://images.theconversation.com/files/436809/original/file-20211209-140267-1ddxyuh.jpg?ixlib=rb-1.1.0&rect=8%2C8%2C5699%2C3722&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">All eyes are now on Donald Trump's White House records.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-image-of-president-donald-trump-appears-on-video-screens-news-photo/1230450967?adppopup=true">Bill Clark/CQ-Roll Call, Inc via Getty Images</a></span></figcaption></figure><p>Former President Donald Trump has <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/913002F9EFB94590852587A60075CC4F/$file/21-5254-1926128.pdf">lost his latest legal battle</a> over documents relating to the Jan. 6 attack on the Capitol, in a case that tests the power of a former president to withhold his records from Congressional scrutiny.</p>
<p>On Dec. 9, 2021, the D.C. Circuit Court of Appeals court said that the Congressional committee investigating the Capitol attack should have access to a trove of evidence that Trump is attempting to shield from the panel.</p>
<p>It is the latest ruling in a series of court cases in which Trump has fought legal demands from Congress for documents from his administration. This legal battle pitted the untested powers of a former president to keep his papers from public view against the proven power of the current president to determine which administration documents – from former or current presidents – can be released to the public. The battle is likely headed to the Supreme Court. </p>
<h2>How did we get here?</h2>
<p>After Jan. 6, the House of Representatives established a <a href="https://january6th.house.gov">select committee</a> to investigate the facts and circumstances surrounding the attack. <a href="https://www.npr.org/2021/07/27/1020713409/here-are-the-9-lawmakers-investigating-the-jan-6-capitol-attack">Of the nine members</a>, two are Republicans; all were appointed by House Speaker Nancy Pelosi.</p>
<p>As part of the committee’s investigation, Congress sought to obtain records – including visitor logs, handwritten notes and speech drafts – from Trump’s period in office that relate to the Capitol attack. </p>
<p>In addition to <a href="https://theconversation.com/house-committee-investigating-capitol-insurrection-has-a-lot-of-power-but-its-unclear-it-can-force-trump-to-testify-165294">issuing subpoenas</a> to Trump aides for documents and testimony – with varying degree of success in getting former administration officials to comply – the select committee requested presidential records that were held by the National Archives. </p>
<p><a href="https://www.law.cornell.edu/uscode/text/44/2201">Presidential records</a> are materials created or received by the president or his immediate staff to help the president carry out his constitutional duties. </p>
<p>Federal law regulates access to those records. </p>
<p>Under the <a href="https://www.archives.gov/about/laws/presidential-records.html">Presidential Records Act</a>, once a president leaves office, it becomes the job of the archivist of the United States to preserve the former president’s documents. The archivist also controls their release. </p>
<p>This means the select committee had to <a href="https://www.archives.gov/foia/january-6-committee">ask the archivist</a> for access to Trump’s records.</p>
<p>The law requires that, after the archivist receives such a request, he notify both the former president, in this case Trump, and the current president, Joe Biden. If either man felt that the records contained constitutionally protected information that should not be disclosed, either had 30 calendar days to assert that claim.</p>
<p>Trump <a href="https://www.archives.gov/files/foia/pdf/trump-to-ferriero-re-executive-privilege-2021-10-08-1.pdf">did just that</a>. He told the archivist that he believed the records were protected by executive privilege and that they could not be disclosed. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Judge Millett at her confirmation hearing, wearing pearls, a beige shirt and dark jacket. She has short, brown hair." src="https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=812&fit=crop&dpr=1 600w, https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=812&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=812&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1020&fit=crop&dpr=1 754w, https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1020&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1020&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Judge Patricia Millett wrote the decision for the three-judge panel of the U.S. Court of Appeals, District of Columbia circuit.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/senatormarkwarner/9256234736/">Sen. Mark Warner flickr account</a></span>
</figcaption>
</figure>
<h2>What is executive privilege?</h2>
<p><a href="https://caselaw.findlaw.com/us-dc-circuit/1433973.html">Executive privilege</a> enables presidents and executive branch officials to withhold documents that would reveal the opinions, recommendations and deliberations on which governmental decisions and policies are based. This privilege exists to <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/psq.12714?casa_token=5vGaOuTbnY4AAAAA:jftwxo9gbOzprGT7Gd6X4C3liaxRCc8SBvGOWoIPB3ntK-DpQHaXwzGMqJu6OIK2S6jm4NZ-tBF4CjU">encourage candor</a> among presidential advisers by preserving the confidentiality of their communications. </p>
<p>Trump has argued that some of the documents the select committee requested from the archivist reflect deliberations that he asserted should remain confidential. <a href="https://www.rollcall.com/2021/11/30/appeals-court-weighs-trumps-push-to-block-jan-6-records/">According to Trump’s legal team</a>, releasing the documents would hurt the office of the president by compromising the ability of future presidents to rely on full and frank advice. </p>
<p>For example, Presidents <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/tlr88&div=14&id=&page=">Harry Truman, Richard Nixon</a> and <a href="https://www.lawfareblog.com/executive-privilege-and-jan-6-investigation">George W. Bush</a> all argued that the modern realities of the presidency require that presidents be able keep some information secret even after leaving office. </p>
<p>However, this is the <a href="http://cdn.cnn.com/cnn/2021/images/11/09/ruling.pdf">first case</a> in which a former president has asserted executive privilege and the current president disagreed.</p>
<h2>Biden v. Trump</h2>
<p>Under the Presidential Records Act, the archivist must consult with the incumbent president when a former president asserts a claim of privilege. </p>
<p>When Archivist David Ferriero did so, the Biden White House said asserting executive privilege would not be in the best interests of the country and <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/13/second-letter-from-dana-a-remus-counsel-to-the-president-to-david-ferriero-archivist-of-the-united-states-dated-october-8-2021/">instructed</a> the archivist to grant the select committee access to the records.</p>
<p>Trump then <a href="https://www.lawfareblog.com/trump-files-lawsuit-against-jan-6-committee-and-nara">went to court</a>. Among other things, he asked the judiciary to prevent the archivist from giving the disputed records to the select committee.</p>
<p>On Nov. 9, 2021, the District Court <a href="https://www.cnn.com/2021/11/09/politics/trump-injunction-denied-national-archives-records-january-6/index.html">denied</a> Trump’s request.</p>
<p>Trump <a href="https://www.politico.com/news/2021/11/30/trump-jan-6-appeals-court-523484">appealed</a> the decision.</p>
<p>Then, on Dec. 9, the Circuit Court <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/913002F9EFB94590852587A60075CC4F/$file/21-5254-1926128.pdf">ruled</a> that Trump had provided insufficient legal basis for overriding Biden’s decision. In the opinion, the court noted that the “profound interests in disclosure” of the documents far outweighed Trump’s concerns about executive privilege.</p>
<h2>Supreme Court next?</h2>
<p>The D.C. District Court ended its opinion by saying that the “events of January 6th exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted. In response, the President of the United States and Congress have each made the judgment that access to this subset of presidential communication records is necessary to address a matter of great constitutional moment for the Republic. </p>
<p>"Former President Trump has given this court no legal reason to cast aside President Biden’s assessment of the Executive Branch
interests at stake, or to create a separation of powers conflict that the Political Branches have avoided.”</p>
<p>This case is just the latest in a <a href="https://theconversation.com/steve-bannon-indicted-over-jan-6-panel-snub-pushing-key-question-over-presidential-power-to-the-courts-171794">series of battles</a> over congressional access to information from the Trump administration.</p>
<p>The D.C. Circuit Court acknowledged the implications of these battles in its opinion and noted that arguments over the documents are best worked out between the political branches of government.</p>
<p>Yet, these disputes raise real <a href="https://www.theatlantic.com/ideas/archive/2021/10/january-6-trump-executive-privilege-biden/620393/">separation of powers concerns</a>, particularly – as here – when the executive and legislative branches look to the courts to serve as an umpire. Also at stake is how much power Congress has to hold the president accountable. As a result, the case is very likely headed to the Supreme Court.</p>
<p>[<em><a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-important">Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter</a>.</em>]</p><img src="https://counter.theconversation.com/content/173016/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer L. Selin has received funding and/or support for her research on Congress and the executive branch from the Center for Effective Lawmaking, Dirksen Congressional Center, Kinder Institute on Constitutional Democracy, and Levin Center at Wayne Law.</span></em></p>Diaries, visitor logs, handwritten notes and speech drafts are among the records Donald Trump has tried to keep from a Congressional committee investigating the Capitol riot of Jan. 6.Jennifer Selin, Kinder Institute Assistant Professor of Constitutional Democracy, University of Missouri-ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1719372021-11-28T19:09:38Z2021-11-28T19:09:38ZThe Iran nuclear talks are resuming, but is there any trust left to strike a deal?<figure><img src="https://images.theconversation.com/files/432769/original/file-20211118-24-jc1vmi.jpg?ixlib=rb-1.1.0&rect=126%2C0%2C5516%2C3680&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">ABEDIN TAHERKENAREH/EPA</span></span></figcaption></figure><p>With nuclear talks between Iran, the US, and the other members of the <a href="https://www.armscontrol.org/factsheets/JCPOA-at-a-glance">Joint Comprehensive Plan of Action (JCPOA)</a> resuming on November 29, one question looms large. Is engagement with Iran likely to bear diplomatic fruit, <a href="https://www.businessinsider.com.au/no-plan-b-biden-iran-nuclear-talks-fail-experts-warn-2021-11?r=US&IR=T">or be squandered</a>? </p>
<p>Negotiated in 2015 by the Obama administration (alongside Germany, France, Britain, China and Russia), the JCPOA represented a major effort to curtail Iranian nuclear ambitions. </p>
<p>The <a href="https://2009-2017.state.gov/e/eb/tfs/spi/iran/jcpoa/index.htm">159-page agreement</a> committed the US and its European partners to lift longstanding sanctions to allow Iran to bring back foreign investment and sell its natural resources globally without restriction. </p>
<p>In exchange, Iran agreed to put a wide array of dampers on its nuclear program for 15 years. These <a href="https://www.armscontrol.org/files/images/Pg_34.png">included</a>: </p>
<ul>
<li><p>keeping uranium enrichment levels below 3.67% (the level used to produce fuel for commercial nuclear plants)</p></li>
<li><p>limit centrifuge numbers and the amount of stockpiled uranium </p></li>
<li><p>allow for greater monitoring, verification and transparency of its nuclear program by the International Atomic Energy Agency (IAEA)</p></li>
<li><p>and shut down several facilities. </p></li>
</ul>
<p>These steps would allow limited civilian activities to remain, but potential military applications would, for the time being, be neutralised.</p>
<p>Importantly, the JCPOA avoided addressing other Iranian actions viewed as destabilising by the US and its partners. These included Tehran’s support of insurgents like <a href="https://www.mei.edu/publications/hezbollahs-regional-activities-support-irans-proxy-networks">Hezbollah in Lebanon, the Houthi rebels in Yemen, and various Iraqi and Syrian militias</a>, as well as its ever-expanding <a href="https://missilethreat.csis.org/country/iran/">ballistic missile and drone programs</a>. </p>
<p>The agreement explicitly noted that sanctions for these activities would remain in place and be treated as separate issues.</p>
<p>Beyond addressing the immediate crisis of possible nuclear proliferation, the agreement was intended to act as a trust-building exercise. US leaders believed that by offering an olive branch to Iranian President Hassan Rouhani and acting in good faith, they could pave the way for a broader US-Iranian rapprochement. The deal would demonstrate the US could be a reliable partner for future negotiations.</p>
<figure class="align-center ">
<img alt="Iran nuclear talks in 2015." src="https://images.theconversation.com/files/432774/original/file-20211118-18-1ddf8fo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/432774/original/file-20211118-18-1ddf8fo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/432774/original/file-20211118-18-1ddf8fo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/432774/original/file-20211118-18-1ddf8fo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/432774/original/file-20211118-18-1ddf8fo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/432774/original/file-20211118-18-1ddf8fo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/432774/original/file-20211118-18-1ddf8fo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">US Secretary of State John Kerry and Iranian Foreign Minister Mohammad Javad Zarif at the high point of the nuclear talks in 2015.</span>
<span class="attribution"><span class="source">Brendan Smialowski/AP</span></span>
</figcaption>
</figure>
<h2>Confidence not built</h2>
<p>Of course, the road to hell is paved with good intentions, and the US once again failed to anticipate arguably its biggest foil in foreign affairs: itself. </p>
<p>The surprise upset election of Donald Trump in 2016 threw the JCPOA into disarray. Whereas Obama had separated the issues of Iran’s nuclear program from its other destabilising acts, Trump viewed both through the same lens. </p>
<p>This <a href="https://theconversation.com/why-trumps-decertification-of-the-iran-nuclear-deal-may-prove-a-costly-mistake-85594">led</a> Washington to <a href="https://www.nytimes.com/2018/05/08/world/middleeast/trump-iran-nuclear-deal.html">unilaterally withdraw</a> from the agreement in May 2018 and implement the so-called “<a href="https://www.tandfonline.com/doi/abs/10.1080/09700161.2020.1841099?journalCode=rsan20">maximum pressure</a>” campaign that sought to bully Iran into wider concessions.</p>
<p>This jarring shift occurred despite Iranian compliance with the JCPOA framework. The agreement actually continued for a year after the US withdrew in hopes the other signatories could guide Washington back to the table. </p>
<p>Such hopes proved fruitless, however, as Trump scorned the Europeans, levied new sanctions against Tehran, and engaged in other provocative behaviours. This included the assassination of <a href="https://theconversation.com/political-assassinations-were-once-unthinkable-why-the-us-killing-of-soleimani-sets-a-worrying-precedent-129622">General Qassem Soleimani</a>, a greatly respected figure in Iran.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/political-assassinations-were-once-unthinkable-why-the-us-killing-of-soleimani-sets-a-worrying-precedent-129622">Political assassinations were once unthinkable. Why the US killing of Soleimani sets a worrying precedent</a>
</strong>
</em>
</p>
<hr>
<p>Trump’s about-face confirmed longstanding elite Iranian views about American duplicity and sullied Obama’s uncharacteristically liberal attempt at building a working relationship with Tehran. </p>
<p>Feeling betrayed, Iran began <a href="https://theconversation.com/how-likely-is-conflict-between-the-us-and-iran-123714">escalating tensions</a> in the Middle East – including strikes on Saudi oil processing facilities – and resumed enriching uranium <a href="https://abcnews.go.com/International/wireStory/atomic-watchdog-iran-raising-nuclear-stockpile-81223715">well beyond</a> the levels agreed to in the JCPOA.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1421864559959281664"}"></div></p>
<h2>Heels dug in</h2>
<p>Many hoped that with Joe Biden’s victory in the 2020 US presidential election, Washington would rapidly move to reengage Tehran and return to the JCPOA agreement. Time was of the essence with Rouhani, the chief proponent of the deal in Iran, due to finish his term this August. (He was replaced by the more conservative and hawkish President Ebrahim Raisi.) </p>
<p>Nevertheless, Biden was not Obama, and despite sharing many of the same staff, his administration quickly displayed more <a href="https://theconversation.com/biden-is-already-carving-out-a-different-middle-east-policy-from-trump-and-even-obama-156206">conservative and bullish foreign policy chops</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1454190856404193281"}"></div></p>
<p>Rather than offer an act of good faith to clear the bad air, Biden signalled he expected Iran to resume adherence to the JCPOA before any US concessions would be made. At the G20 meeting last month, the US, Germany, France and Britain reaffirmed this message in a joint statement, <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/30/joint-statement-by-the-president-of-france-emmanuel-macron-chancellor-of-germany-angela-merkel-prime-minister-of-the-united-kingdom-and-northern-ireland-boris-johnson-and-president-of-the-united-st/">saying</a></p>
<blockquote>
<p>Return to JCPOA compliance will provide sanctions lifting with long-lasting implications for Iran’s economic growth. This will only be possible if Iran changes course. </p>
</blockquote>
<p>Iranian diplomats, however, want the US to right its betrayal and remove sanctions before Tehran begins to comply with the agreement again.</p>
<p>These two intractable and incompatible positions have so far scuttled any efforts to make meaningful headway in negotiations.</p>
<p>For both parties, it is clear the previous terms of the JCPOA simply won’t cut it – especially now that demands from both ends are no longer limited to the nuclear discussions and the wider strategic conditions in the region have changed. </p>
<p>Under Biden, the US focus has shifted towards <a href="https://www.nytimes.com/article/us-china-tensions-explained.html">confronting China</a> in the Asia-Pacific and <a href="https://www.aljazeera.com/news/2021/11/15/biden-signs-1t-infrastructure-bill-with-bipartisan-audience">recovering domestically from COVID-19</a>. This has meant a slow <a href="https://www.middleeasteye.net/opinion/us-middle-east-disengagement-shape-how">disengagement from the Middle East</a>, placing the Iran issue on somewhat of a backburner (at least compared to 2015). </p>
<p>Iran may also be apprehensive due to the significant possibility of Biden as a one-term president (with a chance, however slim, he could be succeeded by Trump). Iran is also aware the US commitment to the region may not be what it once was, and that biding its time may be the best course of action. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/biden-is-already-carving-out-a-different-middle-east-policy-from-trump-and-even-obama-156206">Biden is already carving out a different Middle East policy from Trump — and even Obama</a>
</strong>
</em>
</p>
<hr>
<h2>Flickers of hope?</h2>
<p>Despite such gloom, there is cause for limited optimism through subtle gestures on both sides. </p>
<p>Iran has agreed to return to negotiations on November 29 without the lifting of US sanctions first. This can be considered a mild olive branch.</p>
<p>And US officials <a href="https://www.state.gov/u-s-gcc-iran-working-group-statement/">recently met</a> with representatives from Persian Gulf states in Saudi Arabia to discuss potential channels of diplomacy with Tehran. They also discussed deeper economic ties once sanctions are lifted under the JCPOA. </p>
<p>Such an optimistic declaration suggests US policymakers are at least entertaining the possibility of a positive outcome and path forward from negotiations – despite significant pressure from Republicans in the US and Israel to the contrary. </p>
<p>But making predictions in the current muck of diplomatic negotiations is difficult. There may be a path towards resuscitating the JCPOA. If possible, however, it will require reestablishing a level of trust that neither side seems open to embracing, nor fostering in the current frosty diplomatic climate.</p><img src="https://counter.theconversation.com/content/171937/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Much has changed since the Trump administration pulled out of the Iran nuclear deal in 2018, and good will is seriously lacking.Ben Rich, Senior lecturer in History and International Relations, Curtin UniversityLeena Adel, PhD student, Political Science and International Relations, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1716532021-11-12T13:34:54Z2021-11-12T13:34:54ZThe Hatch Act, the law Trump deputies are said to have broken, requires government employees to work for the public interest, not partisan campaigns<figure><img src="https://images.theconversation.com/files/431379/original/file-20211110-19-1msqcmz.jpeg?ixlib=rb-1.1.0&rect=0%2C7%2C5061%2C3366&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">At least 13 former Trump administration officials, including Jared Kushner and Kayleigh McEnany, pictured here, violated the Hatch Act, according to a new federal investigation released Nov. 9, 2021.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpHatchAct/ccefacd6bbb840efb47c1dc4972f82c3/photo?Query=Trump%20Kushner&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1895&currentItemNo=0">AP Photo/Alex Brandon</a></span></figcaption></figure><p>Thirteen top officials of the <a href="https://www.nytimes.com/2021/11/09/us/politics/trump-officials-illegal-campaigning.html">Trump administration violated the federal law known as the Hatch Act</a>, which prohibits political campaigning while employed by the federal government. That’s the <a href="https://osc.gov/Documents/Hatch%20Act/Reports/Investigation%20of%20Political%20Activities%20by%20Senior%20Trump%20Administration%20Officials%20During%20the%202020%20Presidential%20Election.pdf">conclusion of a federal government report</a> issued by the Special Counsel, Henry Kerner. </p>
<p>The officials, including then-acting Secretary of Homeland Security Chad Wolf and Secretary of State Mike Pompeo, “chose to use their official authority not for the legitimate functions of the government, but to promote the reelection of President Trump in violation of the law.” </p>
<p>The Trump administration members were not the first federal employees to <a href="https://www.governmentattic.org/41docs/OSChathActWarningLrtrs_2018-2020.pdf">have crossed the line</a> into prohibited political advocacy. Over the past few decades, government employees have been documented violating the Hatch Act in their offices, at meetings and in memos. And in a world awash in social media, it has become much easier for people to share their views about politics digitally.</p>
<p>But government employees work for the people of the United States. Paid with the tax dollars of Democrats and Republicans, they are supposed to work in the public interest, not use the power of the federal government to pursue partisan political causes. </p>
<h2>Public dollars, public mission</h2>
<p>The ideal of public employees as politically neutral is, at its core, driven by accountability. </p>
<p>For many government employees, the appearance of political impartiality is an overriding principle that governs their professional lives. Upholding this principle can even cause them to sacrifice their own electoral influence outside of the office.</p>
<p>I am a scholar of public policy and administration, and my research indicates that <a href="https://thebluereview.org/hidden-cost-primary-systems/">many would rather not vote in a party’s primary election</a>, where they would be required to publicly state what party they belong to.</p>
<p>Where is the line between professional standards and political speech?</p>
<p>Public servants, the argument goes, should be neutral and concerned only with implementing public policy that is decided by elected officials. This <a href="https://www.iapss.org/wp/2014/06/30/the-dichotomy-of-politics-and-public-administration-lessons-from-the-perennial-debate/">principle</a> has driven the field of public administration for more than 100 years. </p>
<p>Passed in 1939, the Hatch Act <a href="https://osc.gov/Services/Pages/HatchAct.aspx">prohibits</a> federal employees from running for partisan office, encouraging subordinates to engage in political activity, soliciting political contributions or engaging in political activity while on duty. It does not prohibit affiliating with a political party, discussing politics or attending fundraisers.</p>
<p>The Hatch Act generally only applies to federal employees. It does not apply to the president, vice president or Cabinet appointments. It can also cover state and local government employees, if their work is at least partially funded by federal dollars. <a href="http://www.ncsl.org/research/ethics/50statetablestaffandpoliticalactivitystatutes.aspx">Several states, such as Minnesota, North Carolina and Ohio, have additional laws</a> that can further restrict the political activity of public employees, even if their positions aren’t federally funded.</p>
<p>From 2010 through 2016, <a href="https://osc.gov/PublicFiles">the Office of the Special Counsel, or OSC, which investigates Hatch Act violations,</a> received an average of 315 Hatch Act complaints per year, which resulted in an average of 102 warning letters per year. An average of nine employees per year have resigned from their positions in response.</p>
<p>Some recent examples of Hatch Act violations include <a href="http://www.washingtonpost.com/wp-dyn/content/article/2007/05/24/AR2007052401130.html">asking others</a> to “help our candidates” and <a href="https://www.washingtonpost.com/politics/postal-service-broke-law-in-pushing-time-off-for-workers-to-campaign-for-clinton-investigation-finds/2017/07/19/3292741c-6ca0-11e7-b9e2-2056e768a7e5_story.html">pressuring supervisors</a> to allow employees time off in order to campaign for their union’s preferred candidate. Others <a href="http://www.nytimes.com/2011/01/25/us/politics/25ethics.html">coordinated partisan elections</a> using taxpayer-funded resources. Even <a href="https://www.usatoday.com/story/news/politics/onpolitics/2017/10/03/un-ambassador-nikki-haley-hit-hatch-act-reprimand/728611001/">retweeting a post from the president of the United States</a> on social media constituted a violation. </p>
<h2>From patronage to neutrality, via assassination</h2>
<p>During the early years of the United States, the federal government operated under a system known as “patronage.” </p>
<p>Under that system, a newly elected president could replace federal employees with a person of their choosing. Often, they chose only from among their supporters, campaign workers and friends. This was especially true if the presidency changed political parties. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/211576/original/file-20180322-54903-1bi9wgl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/211576/original/file-20180322-54903-1bi9wgl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=852&fit=crop&dpr=1 600w, https://images.theconversation.com/files/211576/original/file-20180322-54903-1bi9wgl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=852&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/211576/original/file-20180322-54903-1bi9wgl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=852&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/211576/original/file-20180322-54903-1bi9wgl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1071&fit=crop&dpr=1 754w, https://images.theconversation.com/files/211576/original/file-20180322-54903-1bi9wgl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1071&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/211576/original/file-20180322-54903-1bi9wgl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1071&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Woodrow Wilson wrote an important essay on government employee neutrality before he became president.</span>
<span class="attribution"><span class="source">Library of Congress</span></span>
</figcaption>
</figure>
<p>The public bureaucracy was constantly changing, and few officials were around long enough to develop institutional memory. In addition, patronage led to the appointment of people who were not qualified for the positions they got, leaving the government inefficient and the public dissatisfied. </p>
<p>President <a href="http://teachingamericanhistory.org/library/document/the-study-of-administration/">Woodrow Wilson,</a> prior to his presidency, and <a href="https://books.google.com/books?id=NVoPAAAAYAAJ&pg=PR3#v=onepage&q&f=false">Frank Goodnow</a>, writing separately at the end of the 19th century, first articulated the theory that there should be a wall between elected officials who set public policy and the professional staff charged with implementing that policy. </p>
<p>A professional class of government employees was not the tradition of the United States at that time, and the public had to be convinced of its virtue. Wilson’s <a href="http://teachingamericanhistory.org/library/document/the-study-of-administration/">essay</a> tried to help the wider population understand why civil service reforms were necessary.</p>
<p>There was another event that also helped move government employment from patronage to professionalism. In 1881, a man who felt he had been unfairly passed over for a patronage job shot and killed <a href="https://www.smithsonianmag.com/history/garfield-assassination-altered-american-history-woefully-forgotten-today-180968319/">President James Garfield</a>. This assassination helped highlight the problems of the patronage system and led to the passage of the <a href="https://www.politico.com/story/2018/01/16/pendleton-act-inaugurates-us-civil-service-system-jan-16-1883-340488">Pendleton Act in 1883</a>. That legislation instituted a merit-based civil service system that remains largely in place today.</p>
<p>Under the system instituted in 1883, only the top levels of federal agencies can be replaced by patronage appointments – friends, supporters and allies of the new administration. The remaining levels of rank-and-file staff are expected to be nonpartisan professionals. In many respects, the Hatch Act can be seen as an outgrowth of this ideal.</p>
<p>[<em>Over 115,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-newsletter-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<h2>A ‘fanciful’ distinction</h2>
<p>The boundary between politics and civil service employees is not necessarily easy to see or maintain. Scholars have wrestled with whether government employees, charged with implementing vague public policy, can really be separated entirely from political concerns. </p>
<p>In fact, some scholars have rejected the separation as fanciful. In an important debate between preeminent public administration scholar <a href="https://www.jstor.org/stable/40861434?seq=1#page_scan_tab_contents">Dwight Waldo and Nobel Prize-winning economist Herbert Simon</a>, Waldo argued that when some decision-making is left to administrators, an administrator’s own politics will influence those decisions. In short, public employees are not actually neutral. Simon, on the other hand, argued that efficient government required that administrative decisions should emphasize objective facts and not be influenced by a public employee’s personal values.</p>
<p>While most public administration scholars have moved beyond debate about the dichotomy itself, public employees still have to grapple with their proper role. And they do so as they work for elected policymakers, who themselves <a href="https://www.tandfonline.com/doi/abs/10.1081/PAD-100000713">still think that they are the only ones who should drive what all levels of government do</a>.</p>
<h2>Neutrality not getting easier</h2>
<p>For over a century, public employees have generally subscribed to an ethos that theirs is a professional role separated from the daily political grind. In the modern era, it takes far more discipline to maintain that separation. And it does not appear to be getting any easier.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/211577/original/file-20180322-54893-1bpgl0t.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/211577/original/file-20180322-54893-1bpgl0t.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=516&fit=crop&dpr=1 600w, https://images.theconversation.com/files/211577/original/file-20180322-54893-1bpgl0t.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=516&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/211577/original/file-20180322-54893-1bpgl0t.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=516&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/211577/original/file-20180322-54893-1bpgl0t.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=648&fit=crop&dpr=1 754w, https://images.theconversation.com/files/211577/original/file-20180322-54893-1bpgl0t.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=648&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/211577/original/file-20180322-54893-1bpgl0t.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=648&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">CNBC reporter Christina Wilkie’s tweet about Kellyanne Conway’s attack on a Democratic political candidate; Conway was found to have violated the Hatch Act.</span>
<span class="attribution"><span class="source">Twitter</span></span>
</figcaption>
</figure>
<p>In 2015, the <a href="https://www.washingtonpost.com/news/federal-eye/wp/2015/11/13/no-tweeting-what-you-actually-think-about-clinton-or-carson-if-youre-on-the-clock-new-limits-on-feds/">Hatch Act was clarified</a> to prohibit federal employees from, among other things, liking or retweeting a political candidate while on the job, even during break time. Some in sensitive positions, like law enforcement or intelligence, are even prohibited from doing so during their off-hours.</p>
<p>Despite that attempt at clarity, in today’s hyperpartisan climate, social media and 24-hour connectivity have helped blur the line between a public employee acting in their official capacity and their private life. </p>
<p>The Trump administration officials’ violations help remind us that the line between political activity and professional neutrality still exists for federal employees. And in this increasingly connected world, the opportunities to fall short are plentiful.</p>
<p><em>This is an updated version of <a href="https://theconversation.com/federal-employees-work-for-both-democrats-and-republicans-even-kellyanne-conway-93165">an article</a> originally published on March 23, 2018.</em></p><img src="https://counter.theconversation.com/content/171653/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matthew May does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>More than a dozen Trump administration officials are said to have violated a federal law that bars federal employees from political campaigning. They weren’t the first to have run afoul of the law.Matthew May, Senior Research Associate, Boise State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1695732021-10-08T17:26:39Z2021-10-08T17:26:39ZBiden restores protection for national monuments Trump shrank: 5 essential reads<figure><img src="https://images.theconversation.com/files/425507/original/file-20211008-13-1pz09lp.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C5485%2C3088&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The twin buttes that give Bears Ears National Monument in Utah its name are sacred places to many Indigenous Tribes and Pueblos.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/bears-ears-as-seen-from-natural-bridges-national-royalty-free-image/1203244684">T. Schofield, iStock via Getty Images</a></span></figcaption></figure><p>On Oct. 7, 2021, the Interior Department announced that President Biden was <a href="https://www.doi.gov/pressreleases/administration-leaders-applaud-president-bidens-restoration-national-monuments">restoring protection</a> for three U.S. national monuments that the Trump administration sought to shrink drastically: <a href="https://www.blm.gov/programs/national-conservation-lands/utah/bears-ears-national-monument">Bears Ears</a> and <a href="https://www.blm.gov/programs/national-conservation-lands/utah/grand-staircase-escalante-national-monument">Grand Staircase-Escalante</a> in Utah, and <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/habitat-conservation/northeast-canyons-and-seamounts-marine-national">Northeast Canyons and Seamounts</a> in the Atlantic Ocean. President Trump’s 2017 orders downsizing these monuments, originally created by previous administrations, ignited debate over whether such action was legal. Here are five articles from our archives that examine this controversy.</p>
<h2>1. A law rooted in presidential power</h2>
<p>Presidents can designate lands as national monuments quickly, without seeking consent from Congress, under the 1906 <a href="https://sgp.fas.org/crs/misc/R41330.pdf">Antiquities Act</a>. Congress passed the law to protect historically valuable archaeological sites in the Southwest that were being looted. </p>
<p>But as the late <a href="https://scholar.google.com/citations?user=XcJV-xEAAAAJ&hl=en">John Freemuth</a>, a public policy scholar at Boise State University, observed, presidents soon were <a href="https://theconversation.com/how-the-antiquities-act-has-expanded-the-national-park-system-and-fueled-struggles-over-land-protection-56454">using it much more expansively</a> – and affected interests pushed back: </p>
<blockquote>
<p>“Use of the Antiquities Act has fueled tensions between the federal government and states over land control – and not just in the Southwest region that the law was originally intended to protect. Communities have opposed creating new monuments for fear of losing revenues from livestock grazing, energy development, or other activities, although such uses have been allowed to continue at many national monuments.”</p>
</blockquote>
<p>Freemuth predicted in a 2016 article that “future designations will succeed only if federal agencies consult widely in advance with local communities and politicians to confirm that support exists.” </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-the-antiquities-act-has-expanded-the-national-park-system-and-fueled-struggles-over-land-protection-56454">How the Antiquities Act has expanded the national park system and fueled struggles over land protection</a>
</strong>
</em>
</p>
<hr>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"606156058814476288"}"></div></p>
<h2>2. Can presidents alter monuments their predecessors created?</h2>
<p>Many environmental advocacy groups and tribes opposed President Trump’s order to remove large swaths of land from these three monuments and sued to block it. The Antiquities Act is silent on this question. But when The Conversation asked environmental lawyers <a href="https://www.law.lsu.edu/directory/profiles/nicholas-bryner/">Nicholas Bryner</a>, <a href="https://scholar.google.com/citations?user=_YZy3OwAAAAJ&hl=en">Eric Biber</a>, <a href="https://lawweb.colorado.edu/profiles/profile.jsp?id=189">Mark Squillace</a> and <a href="https://lawweb.colorado.edu/profiles/profile.jsp?id=189">Sean Hecht</a>, they argued – based on other environmental statutes and legal opinions – that <a href="https://theconversation.com/president-trumps-national-monument-rollback-is-illegal-and-likely-to-be-reversed-in-court-88376">such acts would require congressional approval</a>: </p>
<blockquote>
<p>“Courts have always been deferential to presidents’ use of the law, and no court has ever struck down a monument based on its size or the types of objects it is designed to protect. Congress, rather than the president, has the authority to alter monuments, should it decide that changes are appropriate.”</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/president-trumps-national-monument-rollback-is-illegal-and-likely-to-be-reversed-in-court-88376">President Trump's national monument rollback is illegal and likely to be reversed in court</a>
</strong>
</em>
</p>
<hr>
<h2>3. Monuments have scenic, cultural and scientific value</h2>
<p>National monuments protect many unique resources. For example, Bears Ears conserves land where Indigenous people have lived, hunted and worshiped for centuries. The Bears Ears designation was requested by an intertribal coalition and approved by President Barack Obama after extensive consultation with tribal governments.</p>
<p>Many national monuments contain scenic lands and areas that are critical habitat for endangered species, such as desert tortoises and California condors. The underwater canyons of Northeast Canyons and Seamounts house sponges, corals, squid, octopus, numerous fish species and <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/habitat-conservation/northeast-canyons-and-seamounts-marine-national">endangered sperm whales</a>.</p>
<p>Monuments also can have important scientific value. President Bill Clinton designated Grand Staircase-Escalante partly to protect <a href="https://theconversation.com/shrinking-the-grand-staircase-escalante-national-monument-is-a-disaster-for-paleontology-103414">thousands of unique fossil sites</a>, most of which had yet to be studied. Many were located in areas near potential shale gas, coal or uranium extraction zones.</p>
<p>“Decades of ongoing research in this region have literally rewritten what scientists know about Mesozoic life, especially about the ecosystems that immediately preceded the final extinction of the dinosaurs,” Indiana University earth scientist <a href="https://scholar.google.com/citations?user=aPOrK60AAAAJ&hl=en">P. David Polly</a> writes. “Paleontologists like me know that the still-pristine Grand Staircase-Escalante region has divulged only a fragment of its paleontological story.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/shrinking-the-grand-staircase-escalante-national-monument-is-a-disaster-for-paleontology-103414">Shrinking the Grand Staircase-Escalante National Monument is a disaster for paleontology</a>
</strong>
</em>
</p>
<hr>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/425512/original/file-20211008-15-fjkmi6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Scientists sitting in the dirt brush soil away from fossilized bones." src="https://images.theconversation.com/files/425512/original/file-20211008-15-fjkmi6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/425512/original/file-20211008-15-fjkmi6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/425512/original/file-20211008-15-fjkmi6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/425512/original/file-20211008-15-fjkmi6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/425512/original/file-20211008-15-fjkmi6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/425512/original/file-20211008-15-fjkmi6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/425512/original/file-20211008-15-fjkmi6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Researchers dig for fossils in Utah’s Grand Staircase-Escalante National Monument, which has emerged as one of the most important paleontological reserves in the world.</span>
<span class="attribution"><a class="source" href="https://nsf.gov/news/news_images.jsp?cntn_id=117745&org=NSF">Utah Museum of Natural History</a>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
</figcaption>
</figure>
<h2>4. How a Native American Interior Secretary sees it</h2>
<p>The stark difference between the Trump and Biden administrations’ public land policies can be summed up by comparing their respective interior secretaries. </p>
<p>President Trump chose U.S. Rep. Ryan Zinke of Montana to head the agency, which manages more than 480 million acres of public lands, including national monuments. Zinke, who supported opening public lands for oil and gas development and mining, led a review that proposed shrinking the three monuments Biden has just restored. </p>
<p>President Biden’s interior secretary, former U.S. Rep. Deb Haaland of New Mexico, is the <a href="https://theconversation.com/indian-country-is-excited-about-the-first-native-american-secretary-of-the-interior-and-the-promise-she-has-for-addressing-issues-of-importance-to-all-americans-153775">first Native American</a> to head the agency that maintains government-to-government relationships with and provides services to Native American Indian tribes and Alaska Native entities.</p>
<p>“For Native Americans, seeing people who look like us and are from where we come from in some of the highest elected and appointed offices in the U.S. demonstrates inclusion. Indian Country finally has a seat at the table,” writes Arizona State University Indigenous studies scholar <a href="https://scholar.google.com/citations?user=Bc-RS6QAAAAJ&hl=en">Traci Morris</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/indian-country-is-excited-about-the-first-native-american-secretary-of-the-interior-and-the-promise-she-has-for-addressing-issues-of-importance-to-all-americans-153775">'Indian Country' is excited about the first Native American secretary of the interior – and the promise she has for addressing issues of importance to all Americans</a>
</strong>
</em>
</p>
<hr>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/vSYw43bEIII?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Utah Native Americans support President Biden’s decision to restore Bears Ears and Grand Staircase-Escalante to their original boundaries.</span></figcaption>
</figure>
<h2>5. Monuments aren’t always beloved at first</h2>
<p>Some of the most popular U.S. national parks initially were protected as national monuments, then expanded and given national park status by Congress years later. They include <a href="https://www.nps.gov/acad/index.htm">Acadia</a> in Maine, <a href="https://www.nps.gov/jotr/index.htm">Joshua Tree</a> in Southern California, and <a href="https://www.nps.gov/arch/index.htm">Arches</a> in Utah. </p>
<p>But a site’s merit may not be obvious at first. As Arizona State University’s <a href="https://www.researchgate.net/profile/Stephen-Pyne">Stephen Pyne</a> writes, the first Europeans who explored the Grand Canyon in the 18th and 19th centuries thought it was unremarkable or worse; one called it “altogether valueless.”</p>
<p>Then geologists working for the federal government traversed the canyon, and wrote rapturous accounts that <a href="https://theconversation.com/grand-canyon-national-park-turns-100-how-a-place-once-called-valueless-became-grand-111144">recast it as a marvel</a> – a shift that Pyne calls “an astonishing reversal of perception”: </p>
<blockquote>
<p>“The geologic mystery of the canyon is how the south-trending Colorado River made a sudden turn westward to carve its way, cross-grained, through four plateaus. This is also more or less what happened culturally. Intellectuals cut against existing aesthetics to make a place that looked nothing like pastorals or alpine mountains into a compelling spectacle.”</p>
</blockquote>
<p>President Theodore Roosevelt agreed. After making multiple visits to the canyon, he designated it as a national monument in 1908. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/grand-canyon-national-park-how-a-place-once-called-valueless-became-grand-111144">Grand Canyon National Park: How a place once called 'valueless' became grand</a>
</strong>
</em>
</p>
<hr>
<p><em>Editor’s note: This story is a roundup of articles from The Conversation’s archives.</em></p><img src="https://counter.theconversation.com/content/169573/count.gif" alt="The Conversation" width="1" height="1" />
The Biden administration is restoring full protection to three national monuments that President Trump sought to cut down drastically.Jennifer Weeks, Senior Environment + Cities Editor, The ConversationLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1675132021-09-28T19:26:51Z2021-09-28T19:26:51ZCanadians shouldn’t take for granted the recent peaceful transition after the election<figure><img src="https://images.theconversation.com/files/423657/original/file-20210928-28-5kdew1.jpg?ixlib=rb-1.1.0&rect=0%2C32%2C5483%2C3603&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Liberal leader Justin Trudeau waves as he leaves a poling station after casting his ballot in his riding of Papineau, in Montréal, on Sept. 20, 2021.
</span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Paul Chiasson</span></span></figcaption></figure><p>Prime Minister Justin Trudeau is back in power and the makeup of Parliament remains similar to how it was prior to the federal election. In the wake of the vote, the caustic protest language and aggressive actions that were directed at candidates during the campaign has raised questions around whether this was “<a href="https://www.thestar.com/news/canada/2021/09/08/pebble-throwing-vitriol-protests-at-hospitals-is-it-just-anti-vaxxer-mobs-or-a-new-brand-of-canadian-political-violence.html">a new brand of Canadian political violence</a>.”</p>
<p>With the final tallies of the votes confirmed, <a href="https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201930E#a52">a series of constitutional, conventional and practical steps</a> are currently taking place to provide for the peaceful transition of power. It is taken for granted that after each and every election, a peaceful transfer of power will take place.</p>
<p>The 2020 United States presidential election challenges and the subsequent capitol insurrection serve as reminders that democracy is fragile. While not approaching the levels of dysfunction in the U.S., the 2021 federal election revealed that Canada is also subject to pressures of anti-democratic threats from within.</p>
<h2>A cautionary tale</h2>
<p>In the days following the <a href="https://www.theguardian.com/us-news/2019/jun/13/donald-trump-presidential-campaign-speech-eyewitness-memories">June 2015 golden escalator ride</a> when Donald Trump announced his run for the presidency, it was not imagined that five years and seven months later the capstone of the Trump presidency would be a <a href="https://www.cnn.com/2020/09/23/politics/trump-election-day-peaceful-transition/index.html">refusal to commit to a peaceful transition of power</a>, culminating in a siege on the U.S. Capitol.</p>
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Read more:
<a href="https://theconversation.com/pro-trump-rioters-storm-u-s-capitol-as-his-election-tantrum-leads-to-violence-149142">Pro-Trump rioters storm U.S. Capitol as his election tantrum leads to violence</a>
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<p>Repeatedly underestimated as <a href="https://www.nytimes.com/2016/03/13/us/politics/donald-trump-campaign.html">a wild card or silly showman</a>, Trump muscled his way into power. In the meantime, a permissive environment was created for various violent extremists to attempt to halt the peaceful transition of power.<br>
Are Canadian wild cards waiting in the wings?</p>
<p>The insurrectionist attack on the Capitol <a href="https://www.justsecurity.org/74622/stopthesteal-timeline-of-social-media-and-extremist-activities-leading-to-1-6-insurrection/">was not spontaneous</a>. Existing anti-government groups, hate groups and adherents of far right ideologies overlapped with groups protesting COVID-19 vaccinations and lockdowns. Merging under the umbrella of supporting Trump, the more militant members of these groups converged to violently obstruct congressional procedures to certify the results of the 2020 election.</p>
<p><a href="https://freedomhouse.org/report/freedom-world/2021/democracy-under-siege">The final weeks of the Trump presidency featured unprecedented attacks on one of the world’s most visible and influential democracies</a>. The cautionary tale is that it did happen, and the peaceful transfer of power was threatened.</p>
<h2>Red flags in Canada</h2>
<p>For Canada to shrug off election violence as a threat that died along with Trump’s presidency, <a href="https://www.macleans.ca/opinion/canada-needs-to-brace-itself-for-the-next-chapter-of-far-right-extremism/">or as a purely American ailment</a>, is as dangerous as it is apathetic. While nowhere near the scale of the election chaos in the U.S., the Canadian 2021 federal election was marred with anti-democratic incidents.</p>
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<figcaption><span class="caption">CBC News covers disruptive crowds on Trudeau’s campaign trail.</span></figcaption>
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<p>Incidents ranged from <a href="https://cpcrempel.ca/news/f/statement-from-michelle-rempel-garner">smaller instances of intimidation</a> to <a href="https://www.cbc.ca/news/politics/violence-vandalism-campaign-rise-1.6177269">larger acts of outright violence</a>. In total, these incidents did not threaten the integrity of the election or undermine the peaceful transition of power — this time.</p>
<p>Nonetheless no matter how small or isolated these incidents were, a red flag is waving that cannot be ignored.</p>
<p>The agitators protesting during the federal election were part of an anti-vaccine movement emerging from discontent with the management of the COVID-19 public health crisis. This movement’s characteristics include: <a href="https://www.nationalobserver.com/2021/09/19/analysis/shocking-anti-vaccine-protests-plagued-canadas-election-spawned-resurgent-far">distrust of the government and other institutions, animosity towards experts and authorities, cultural grievances, rejection of mainstream science and the creeping influence of extremism in public discourse</a>.</p>
<p>During a campaign stop in London, Ont., the incumbent Prime Minister Trudeau was pelted by gravel as he boarded a bus after a campaign stop. After the incident, Trudeau dismissed the incident by saying: “<a href="https://www.washingtonpost.com/world/2021/09/06/canada-election-trudeau-vaccines/">There was little bits of gravel … It’s no big deal</a>.” </p>
<p>Police have since <a href="https://www.thestar.com/politics/federal-election/2021/09/11/london-police-lay-criminal-charge-against-man-who-allegedly-threw-gravel-at-trudeau.html">laid charges of assault with a weapon</a> on the alleged stone thrower, a man who had been <a href="https://www.cbc.ca/news/canada/london/ppc-maxime-bernier-justin-trudeau-shane-marshall-1.6169515">a local riding association president for the People’s Party of Canada</a>.</p>
<p>The gravel-throwing incident was in the context of what was referred to as a <a href="https://globalnews.ca/news/8170264/trudeau-anti-vaxx-protests-response/">“rocky start” to Trudeau’s campaign</a>. Challenges of electioneering were compounded with intense and vitriolic protests from anti-vaxxers in different parts of Ontario. And on Aug. 27, a Liberal campaign event in Bolton, Ont., was <a href="https://globalnews.ca/news/8147847/canada-election-trudeau-event-cancelled/">cancelled due to safety concerns</a>.</p>
<p>The election ended with sentiments that <a href="https://www.thestar.com/politics/political-opinion/2021/09/20/federal-election-brings-world-of-deeply-polarized-politics-to-canadas-doorstep.html">a “deeply polarized” brand of politics has been brought to Canada’s doorstep</a>.</p>
<h2>What’s next?</h2>
<p>With the election past, what will those people who fervently protested candidates do now that they no longer have an election at which they can direct their fervour. Will another iteration of this movement materialize in the future to harass candidates in the next election? </p>
<p>Should malcontents build on their limited success and attempt to mess up the outcome of future elections, an indecorously contested race can result in electoral chaos. It has been suggested that Canada’s constitution leaves gaps on how or when a prime minister assumes or leaves office, <a href="https://www.washingtonpost.com/opinions/2020/12/16/canada-trudeau-us-election-trump-politics/">allowing competing theories of precedent and propriety to fill the vacuum</a>.</p>
<p>While the outcomes of the 2021 federal election maintained the status quo, the discontent took a few baby steps in the direction of serious threats to the democratic process. One hopes this does not mature into a future election-related insurrection attempt taking place at the Centre Block of Parliament in Ottawa.</p><img src="https://counter.theconversation.com/content/167513/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jack L. Rozdilsky is a Professor at York University who receives funding from the Canadian Institutes of Health Research as a co-investigator on a project supported under operating grant Canadian 2019 Novel Coronavirus (COVID-19) Rapid Research Funding.</span></em></p>While the recent federal election maintained the status quo, there were moments on the campaign trail that reflected the fragility of Canadian democracy.Jack L. Rozdilsky, Associate Professor of Disaster and Emergency Management, York University, CanadaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1685562021-09-24T16:37:45Z2021-09-24T16:37:45ZHaitian migrants at the border: An asylum law scholar explains how US skirts its legal and moral duties<figure><img src="https://images.theconversation.com/files/423157/original/file-20210924-26-fj91z8.jpg?ixlib=rb-1.1.0&rect=0%2C5%2C3839%2C2975&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. envoy resigned over "inhumane" treatment of Haitian migrants</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/BorderHaitianRacism/698458add41b4d3997107a6663cd318f/photo?Query=Haitian%20AND%20migrants&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1071&currentItemNo=9">AP Photo/Felix Marquez</a></span></figcaption></figure><p>The U.S.’s top envoy to Haiti <a href="https://www.cnbc.com/2021/09/23/us-special-envoy-to-haiti-resigns-over-migrant-expulsions.html">resigned abruptly on Sept. 22, 2021</a>, over the Biden administration’s “inhumane” treatment of Haitian migrants crossing the border via Mexico into Texas.</p>
<p>The resignation came amid debate over the U.S. decision to <a href="https://fox8.com/news/thousands-of-haitian-migrants-deported-from-us/">deport thousands of Haitians</a> entering the U.S. in search of asylum or a better life. Criticism over the policy mounted as <a href="https://apnews.com/article/donald-trump-immigration-united-states-health-coronavirus-pandemic-083b5ac02cc17a1ce06b6ac0048e99ec">images of U.S. Border Patrol</a> <a href="https://www.reuters.com/world/us/us-homeland-security-chief-heads-border-removal-migrant-camp-accelerates-2021-09-20/">agents on horseback and carrying whip-like cords</a> while encountering migrants gained widespread media attention and criticism from the White House. Border <a href="https://www.dailymail.co.uk/news/article-10014399/Texas-border-agents-DENY-whipping-migrants-accuse-Biden-administration-deflection.html">agents denied using whips</a> on migrants.</p>
<p>The Conversation asked Karen Musalo, an <a href="https://www.uchastings.edu/people/karen-musalo/">expert on refugee law and policy</a>, to unpack what went on at the U.S. border and whether the Biden administration is shirking its moral and legal obligations in deporting the Haitian migrants.</p>
<h2>What’s behind the recent surge of Haitian refugees at the Texas border?</h2>
<p>Haiti is beset by extraordinarily desperate conditions of political chaos and natural disasters, as well as the COVID-19 pandemic. The assassination of President Jovenel Moïse in July 2021 catapulted the country into <a href="https://www.nytimes.com/2021/09/14/world/americas/haiti-henry-moise-assassination.html">political turmoil</a>. The post-assassination power struggle exacerbated <a href="https://www.hrw.org/world-report/2021/country-chapters/haiti">pre-existing political violence</a> and dysfunction. Violent gangs, often <a href="https://www.hrw.org/world-report/2021/country-chapters/haiti">with ties to the state</a>, are increasingly a threat.</p>
<p>In addition, Haiti suffered a devastating 7.2 magnitude earthquake in August, just two days before being hit directly by tropical storm Grace, with a <a href="https://disasterphilanthropy.org/disaster/2021-haiti-earthquake-and-tropical-storm-grace/">combined toll</a> of <a href="https://www.nbc12.com/2021/08/22/haiti-raises-earthquake-death-toll-passes-2200/">over 2,200 dead</a>, 12,000 injured and hundreds of thousands displaced, many in remote regions that have yet to receive aid. The pandemic has exacerbated these woes. Less <a href="https://ourworldindata.org/covid-vaccinations?country=OWID_WRL">than one-half of 1%</a> of the population has received even a first dose of a vaccine.</p>
<p>This has undoubtedly swelled the number of people trying to leave the nation. But many of the migrants arriving in the U.S. in recent weeks left Haiti before the recent turmoil. Haitian migrants have been <a href="https://cgrs.uchastings.edu/sites/default/files/A-Journey-of-Hope-Haitian-Womens-Migration-to%20-Tapachula.pdf">trapped in Mexico</a> for several years under various <a href="https://www.latimes.com/politics/la-na-pol-central-americans-asylum-protections-20190715-story.html">Trump-era policies that limited</a>, and then eliminated, the possibility for them to request asylum in the United States. At the same time, others who left Haiti in years past for countries in South America have suffered from <a href="https://www.houstonpublicmedia.org/articles/news/in-depth/2021/06/11/400406/many-haitians-are-migrating-to-the-u-s-after-facing-racism-poverty-in-latin-america/">deep antipathy and racism</a> in their host countries, living in perilous conditions with only precarious legal status at best.</p>
<p>It appears many asylum seekers in Mexico, including Haitians, took heed of Biden’s promises during the presidential election campaign <a href="https://joebiden.com/immigration/">to restore the asylum system</a>. That may have been a factor in their decision to present themselves at the Texas border seeking the <a href="https://ijrcenter.org/refugee-law/">protection guaranteed under law</a> for those fleeing persecution.</p>
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<img alt="A uniformed Mexican police officer talks with a Haitian migrant wearing a mask." src="https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A Haitian migrant pleads with a Mexican police officer blocking access to the Rio Grande river.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MexicoUSBorderMigrants/243ec96d0e9749eda7e7ccd02b18ef56/photo?Query=Haitian%20AND%20migrants&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1071&currentItemNo=41">AP Photo/Felix Marquez</a></span>
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<p>It should be remembered that the U.S. has long played a role in Haiti’s troubles. When Special Envoy for Haiti Daniel Foote resigned, coverage <a href="https://www.thedailybeast.com/daniel-foote-abruptly-quits-over-inhumane-deportation-of-haitian-migrants">focused on his protest</a> against what he described as the inhumanity of returning Haitians to a “collapsed state … unable to provide security or basic services.” Overlooked was his equally damning indictment of the <a href="https://www.washingtonpost.com/context/read-resignation-letter-from-u-s-special-envoy-for-haiti-daniel-foote/3136ae0e-96e5-448e-9d12-0e0cabfb3c0b/">U.S. as a puppet master</a> in Haiti’s political breakdown, for example by supporting the unelected prime minister and his political agenda.</p>
<h2>Doesn’t the US have a legal obligation to process asylum seekers?</h2>
<p>Both <a href="https://ijrcenter.org/refugee-law/">international</a> and <a href="https://www.law.cornell.edu/uscode/text/8/1158">U.S. law</a> recognize the basic human right to seek asylum. The U.S. has ratified two treaties, the <a href="https://www.kaldorcentre.unsw.edu.au/publication/1967-protocol">1967 Protocol Relating to the Status of Refugees</a> and the <a href="https://www.ohchr.org/en/professionalinterest/pages/cat.aspx">1984 Convention against Torture</a>, which prohibit the U.S. from returning people to countries where they risk persecution or torture. As a practical matter, this means that people must be able to request asylum at the U.S. border, or within U.S. territory, so that they have the opportunity to prove whether or not they fit within the category of persons legally protected from forced return.</p>
<p>This international legal framework has been codified in U.S. law, primarily through the <a href="https://www.acf.hhs.gov/orr/policy-guidance/refugee-act">Refugee Act of 1980</a>, along with later statutes and regulations. It is universally acknowledged, including <a href="https://www.justice.gov/file/23326/download">by the Supreme Court</a>, that in passing these laws Congress intended to bring U.S. law into conformity with the United States’ international treaty obligations.</p>
<p>It is entirely legal to approach U.S. borders and request asylum. Statements by the administration that <a href="https://www.bbc.com/news/world-us-canada-57387350">people should not come</a>, that they are doing something illegal when they seek protection, and that there is a right way and wrong way to seek asylum are, in my opinion, not only callous and cruel but also false statements of the law.</p>
<p>The <a href="https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/23/press-briefing-by-press-secretary-jen-psaki-september-23-2021/">White House has asserted</a> that Haitians are not coming into the country through “legal methods,” which would indeed be impossible since all legal methods have been foreclosed to them.</p>
<p>As part of the Trump administration’s dismantling of the asylum system, the White House in March 2020 <a href="https://www.cdc.gov/coronavirus/2019-ncov/order-suspending-introduction-certain-persons.html">ordered the Centers for Disease Control and Prevention</a>, over the objections of its own scientists, to use a 1944 public health law known as “<a href="https://www.npr.org/2021/08/02/1023187217/title-42-foes-go-back-to-court-to-try-to-end-covid-measure-blocking-asylum-seeke">Title 42</a>” to bar asylum seekers from entering the United States. This law had never been used before to dictate the movement of people across U.S. borders, which is instead the province of immigration laws. And despite the Biden’s campaign promises to restore the country’s asylum system, the administration continues to rely on Title 42 – <a href="https://thehill.com/opinion/immigration/573016-why-is-the-biden-administration-turning-its-back-on-asylum-seekers?rl=1">despite most Americans now being vaccinated</a> – to keep asylum seekers out. </p>
<h2>Can you tell me a little more about Title 42?</h2>
<p>Even before COVID-19 struck, Trump administration aide <a href="https://www.hrw.org/news/2021/04/08/qa-us-title-42-policy-expel-migrants-border">Stephen Miller had inquired</a> about using the government’s public health authority to shut U.S. borders to people seeking asylum. He was told there was no legal authority to do so. The emergence of the pandemic provided a pretext for the unprecedented use of this little-known law dating back over 75 years. It formed part of the <a href="https://www.ssa.gov/policy/docs/ssb/v7n8/v7n8p15.pdf">Public Health Service Act of 1944</a> to allow for the quarantine of anyone, including a U.S. citizen, arriving from a foreign country. It was never intended, nor until 2020 was used, to expel noncitizens from the United States. In fact, when Congress enacted the initial version of this law, references to immigration were deliberately omitted precisely to avoid the use of its provisions to discriminate against immigrants.</p>
<p>But the March 2020 order by the Trump administration <a href="https://www.publichealth.columbia.edu/public-health-now/news/public-health-experts-urge-us-officials-withdraw-order-enabling-mass-expulsion-asylum-seekers">targets one group, and one group only</a>: noncitizens who lack documentation and arrive by land.</p>
<p>All other people arriving in the U.S., including American citizens, lawful permanent residents and tourists arriving by plane or ship, are exempt. As currently employed by the government, this public health law has displaced existing immigration law, which allows people to request asylum. And in doing so it has also eliminated the due process protections that are part of our immigration laws.</p>
<p>On Sept. 16, a federal court found the use of Title 42 to expel people seeking asylum to be a clear violation of U.S. law and <a href="https://cgrs.uchastings.edu/news/federal-court-blocks-title-42-expulsions-families-seeking-safety">granted a preliminary injunction</a> against the practice. The court stayed its own order for 14 days to allow the government an opportunity to appeal its decision.</p>
<h2>Is there a history of discriminatory US migration policy against Haitians?</h2>
<p>Haitians have suffered from <a href="https://www.washingtonpost.com/national/haitian-migrants-racism/2021/09/22/e400793e-1be1-11ec-bcb8-0cb135811007_story.html">discriminatory treatment in immigration</a> for decades, and it would, I believe, be naïve to attribute this adverse treatment to anything other than systemic racism, which pervades so many aspects of American society. Shortly after the U.S. enacted the <a href="https://www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg102.pdf">1980 Refugee Act</a>, it <a href="https://www.everycrsreport.com/reports/RS21349.html">began to stop</a> Haitians on the high seas and to return them to Haiti so that they could not apply for asylum in this country. This violation of international law was upheld by the Supreme Court in 1993, and the practice continues to this day. Before the border was closed to them, Haitians who reached the U.S. and applied for asylum were denied at a <a href="https://apnews.com/article/immigration-race-and-ethnicity-mexico-haiti-asylum-seekers-a81ac1148118db38824d2d8f62139b87">higher rate than just about any other nationality</a> – notwithstanding the dire human rights conditions in their country.</p>
<p>After Haiti’s catastrophic earthquake in 2010, the government gave <a href="https://www.federalregister.gov/documents/2010/01/21/2010-1169/designation-of-haiti-for-temporary-protected-status">Temporary Protected Status to Haitians</a> already in the United States, thus shielding them from removal. In 2017 the Trump administration <a href="https://www.nytimes.com/2017/11/20/us/haitians-temporary-status.html">terminated the status for Haitians</a>, giving them until July 2019 to leave or to face deportation.</p>
<p><em>Editor’s note: This story was updated on Sept. 26 to add a denial from border agents.</em></p><img src="https://counter.theconversation.com/content/168556/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Karen Musalo receives funding from the National Science Foundation,</span></em></p>The Biden administration has used a public health provision to deport thousands of Haitian migrants entering the US via Mexico.Karen Musalo, Professor of International Law, University of California College of the Law, San FranciscoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1664852021-08-24T12:17:44Z2021-08-24T12:17:44ZThe EPA is banning chlorpyrifos, a pesticide widely used on food crops, after 14 years of pressure from environmental and labor groups<figure><img src="https://images.theconversation.com/files/417442/original/file-20210823-17-k6uchx.jpg?ixlib=rb-1.1.0&rect=15%2C0%2C5172%2C3492&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Chlorpyrifos is widely used on crops, including fruits, vegetables, nuts, corn and soybeans.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/FracturedFlorida/88f1a039d10946f8bdaf55ffca07e71e/photo">AP Photo/John Raoux</a></span></figcaption></figure><p><em>On Aug. 18, 2021, the U.S. Environmental Protection Agency announced that it will end use of chlorpyrifos – a pesticide associated with neurodevelopmental problems and impaired brain function in children – on <a href="https://www.epa.gov/newsreleases/epa-takes-action-address-risk-chlorpyrifos-and-protect-childrens-health">all food products nationwide</a>. <a href="https://www.researchgate.net/profile/Gina_Solomon2">Gina Solomon</a>, a principal investigator at the <a href="http://www.phi.org/">Public Health Institute</a>, clinical professor at the University of California, San Francisco and former deputy secretary at the <a href="https://calepa.ca.gov/">California Environmental Protection Agency</a>, explains the scientific evidence that led California to ban chlorpyrifos in 2020 and why the EPA is now following suit.</em></p>
<h2>1. What is chlorpyrifos, and how is it used?</h2>
<p>Chlorpyrifos is an inexpensive and effective pesticide that has been on the market since 1965. According to the EPA, approximately <a href="https://www.epa.gov/sites/default/files/2020-12/documents/chlorpyrifos_pid_signed_120320.pdf">5.1 million pounds</a> of chlorpyrifos have been used annually in recent years (2014-2018) on a wide range of crops, including many different vegetables, corn, soybeans, cotton and fruit and nut trees. </p>
<p>Like other <a href="https://en.wikipedia.org/wiki/Organophosphate">organophosphate insecticides</a>, chlorpyrifos is designed to kill insects by <a href="http://npic.orst.edu/factsheets/archive/chlorptech.html">blocking an enzyme called acetylcholinesterase</a>. This enzyme normally breaks down acetylcholine, a chemical that the body uses to transmit nerve impulses. Blocking the enzyme causes insects to have convulsions and die. All organophosphate insecticides are also <a href="https://www.medicalnewstoday.com/articles/320350.php">toxic and potentially lethal to humans</a>.</p>
<p>Until 2000, chlorpyrifos was also used in homes for pest control. It was banned for indoor use after passage of the 1996 <a href="https://www.epa.gov/laws-regulations/summary-food-quality-protection-act">Food Quality Protection Act</a>, which required additional protection of children’s health. Residues left after indoor use were quite high, and toddlers who crawled on the floor and put their hands in their mouth were found to be at risk of poisoning.</p>
<p>Despite the ban on household use and the fact that chlorpyrifos doesn’t linger in the body, over 75% of people in the U.S. still have <a href="https://www.cdc.gov/biomonitoring/Chlorpyrifos_BiomonitoringSummary.html">traces of chlorpyrifos in their bodies</a>, mostly due to residues on food. Higher exposures have been documented in <a href="https://doi.org/10.3390/ijerph111213117">farm workers</a> and people who <a href="https://doi.org/10.1016/j.envint.2019.105210">live or work near agricultural fields</a>. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/iPFMLYQjcb0?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">The Environmental Protection Agency has concluded that less-toxic alternatives to chlorpyrifos are available.</span></figcaption>
</figure>
<h2>2. What’s the evidence that chlorpyrifos is harmful?</h2>
<p>Researchers published the first study linking chlorpyrifos to potential <a href="https://doi.org/10.1289/ehp.5742">developmental harm in children</a> in 2003. They found that higher levels of a chlorpyrifos metabolite – a substance produced when the body breaks down the pesticide – in umbilical cord blood were significantly associated with smaller infant birth weight and length. </p>
<p>Subsequent studies published from 2006 to 2014 showed that those same infants had developmental delays that persisted into childhood, with lower scores on standard <a href="http://dx.doi.org/10.1542/peds.2006-0338">tests of development</a> and changes that researchers could see on <a href="https://doi.org/10.1073/pnas.1203396109">MRI scans of the children’s brains</a>. Scientists also discovered that a <a href="https://doi.org/10.1289/ehp.6414">genetic subtype</a> of a common metabolic enzyme in pregnant women increased the likelihood that their children would experience <a href="https://doi.org/10.1016/j.envres.2014.07.001">neurodevelopmental delays</a>.</p>
<p>These findings touched off a battle to protect children from chlorpyrifos. Some scientists were skeptical of results from <a href="https://toxtutor.nlm.nih.gov/05-003.html">epidemiological studies</a> that followed the children of pregnant women with greater or lesser levels of chlorpyrifos in their urine or cord blood and looked for adverse effects. </p>
<p>Epidemiological studies can provide powerful evidence that something is harmful to humans, but results can also be muddled by gaps in information about the timing and level of exposures. They also can be complicated by exposures to other harmful substances through diet, personal habits, homes, communities and workplaces.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/417447/original/file-20210823-19-1xu4mwh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Workers cut greens in a field." src="https://images.theconversation.com/files/417447/original/file-20210823-19-1xu4mwh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/417447/original/file-20210823-19-1xu4mwh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/417447/original/file-20210823-19-1xu4mwh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/417447/original/file-20210823-19-1xu4mwh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/417447/original/file-20210823-19-1xu4mwh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/417447/original/file-20210823-19-1xu4mwh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/417447/original/file-20210823-19-1xu4mwh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Farm laborers, like these workers harvesting curly mustard in Ventura County, Calif., are especially vulnerable to pesticide exposure.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/farmworker-harvests-curly-mustard-in-a-field-on-february-10-news-photo/1231093765">Patrick T. Fallon/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>3. Why did it take so long to reach a conclusion?</h2>
<p>As evidence accumulated that low levels of chlorpyrifos were probably toxic to
humans, regulatory scientists at the EPA and in California reviewed it – but they took very different paths. </p>
<p>At first, both groups focused on the established toxicity mechanism: acetylcholinesterase inhibition. They reasoned that preventing significant disruption of this key enzyme would protect people from any other neurological effects.</p>
<p>Scientists working under contract for Dow Chemical, which manufactured chlorpyrifos, <a href="http://dx.doi.org/10.3109/00498254.2014.918295">published a complex model</a> in 2014 to estimate how much of the pesticide a person would have to consume or inhale to trigger acetylcholinesterase inhibition. But some of their equations were based on data from as few as <a href="http://dx.doi.org/10.1016/0041-008x(84)90046-2">six healthy adults</a> who had swallowed capsules of chlorpyrifos during experiments in the 1970s and early 1980s – a research method that now would be considered unethical. </p>
<p>California scientists questioned whether risk assessments based on the Dow-funded model adequately accounted for <a href="https://oehha.ca.gov/media/downloads/pesticides/report/chlorpyrifostacfindings121217.pdf">uncertainty and human variability</a>. They also wondered whether acetylcholinesterase inhibition was really the most sensitive biological effect. </p>
<p>In 2016 the EPA released a <a href="https://www.epa.gov/pesticides/updated-human-health-risk-analyses-chlorpyrifos">reassessment</a> of chlorpyrifos’s potential health effects that took a very different approach. It focused on epidemiological studies published from 2003 through 2014 at Columbia University that <a href="http://www.publichealth.columbia.edu/research/columbia-center-childrens-environmental-health/archived-scientific-papers">found developmental impacts</a> in children exposed to chlorpyrifos. The Columbia researchers analyzed chlorpyrifos levels in the umbilical cord blood at birth, and the EPA attempted to back-calculate how much chlorpyrifos the babies might have been exposed to throughout pregnancy. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/417448/original/file-20210823-14-18qu98u.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Map showing estimated use by state." src="https://images.theconversation.com/files/417448/original/file-20210823-14-18qu98u.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/417448/original/file-20210823-14-18qu98u.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=442&fit=crop&dpr=1 600w, https://images.theconversation.com/files/417448/original/file-20210823-14-18qu98u.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=442&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/417448/original/file-20210823-14-18qu98u.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=442&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/417448/original/file-20210823-14-18qu98u.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=556&fit=crop&dpr=1 754w, https://images.theconversation.com/files/417448/original/file-20210823-14-18qu98u.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=556&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/417448/original/file-20210823-14-18qu98u.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=556&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Scientists estimate that U.S. farmers used more than 5 million pounds of chlorpyrifos in 2017.</span>
<span class="attribution"><a class="source" href="https://water.usgs.gov/nawqa/pnsp/usage/maps/show_map.php?year=2017&map=CHLORPYRIFOS&hilo=L">USGS</a></span>
</figcaption>
</figure>
<p>On the basis of this analysis, the Obama administration concluded that chlorpyrifos could not be safely used and <a href="https://www.epa.gov/pesticides/updated-human-health-risk-analyses-chlorpyrifos">should be banned</a>. However, the Trump administration halted this decision one year later, arguing that the science was not resolved and <a href="https://www.epa.gov/sites/production/files/2017-03/documents/chlorpyrifos3b_order_denying_panna_and_nrdc27s_petitition_to_revoke_tolerances.pdf">more study was needed</a>. The Trump administration subsequently abandoned the human epidemiological studies and <a href="https://www.regulations.gov/document/EPA-HQ-OPP-2008-0850-0944">reverted to using the Dow-sponsored model</a> and acetylcholinesterase inhibition endpoint that was used back in 2014.</p>
<p>History indicates that both political and scientific considerations likely accounted for the long delays. Although the conclusions clearly shifted with different federal administrations, the epidemiological studies and the acetylcholinesterase model also pointed in different directions – one suggested high health risks in humans, and the other suggested relatively lower risks. Policy conclusions thus depended partly on which data scientists chose as the basis for evaluating health risks.</p>
<h2>4. What convinced California to impose a ban?</h2>
<p>Three new papers on prenatal exposures to chlorpyrifos, published in 2017 and 2018, broke the logjam. These were independent studies, conducted on rats, that evaluated subtle effects on learning and development. </p>
<p>The results were consistent and clear: Chlorpyrifos caused <a href="http://dx.doi.org/10.1016/j.fct.2016.11.028">decreased learning</a>, <a href="http://dx.doi.org/10.1007/s12640-017-9823-9">hyperactivity</a> and <a href="http://dx.doi.org/10.1016/j.neulet.2017.01.053">anxiety</a> in rat pups at doses lower than those that affected acetylcholinesterase. And these studies clearly quantified doses to the rats, so there was no uncertainty about their exposure levels during pregnancy. The results were eerily similar to effects seen in human epidemiological studies, vindicating serious health concerns about chlorpyrifos.</p>
<p>California <a href="https://www.cdpr.ca.gov/docs/whs/active_ingredient/chlorpyrifos.htm">reassessed chlorpyrifos</a>, using these new studies. Regulators concluded that the pesticide posed significant risks that could not be mitigated, especially among people who lived near agricultural fields where it was used. In October 2019, the state announced that under an enforceable <a href="https://www.cdpr.ca.gov/docs/pressrls/2019/100919.htm">agreement with manufacturers</a>, all sales of chlorpyrifos to California growers would end by Feb. 6, 2020, and growers would not be allowed to possess or use it after Dec. 31, 2020. </p>
<p>Two months after the California decision, the <a href="https://cen.acs.org/environment/pesticides/EU-countries-vote-ban-chlorpyrifos/97/web/2019/12">European Union voted</a> to ban chlorpyrifos due to concerns about neurodevelopmental harm. <a href="https://www.dec.ny.gov/press/122262.html">New York</a>, <a href="https://governor.hawaii.gov/newsroom/latest-news/office-of-the-governor-news-release-with-photos-hawaii-becomes-first-in-nation-to-enact-law-banning-pesticides-containing-chlorpyrifos/">Hawaii</a>, <a href="https://www.capitalpress.com/ag_sectors/nursery/oregon-to-phase-out-most-uses-of-chlorpyrifos-by-end-of-2023/article_60c6a44c-3fc0-11eb-be96-838fe96229d7.html">Oregon</a> and <a href="https://news.maryland.gov/mda/press-release/2020/06/16/department-adopts-regulations-for-phase-out-of-chlorpyrifos/">Maryland</a> also moved to end use of the pesticide within their borders. On the same day that California sales of the pesticide ceased, the main manufacturer of chlorpyrifos, Corteva Agrosciences, announced that it would <a href="https://cen.acs.org/environment/pesticides/Corteva-stop-producing-chlorpyrifos/98/web/2020/02">stop producing the chemical</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1428079614320992261"}"></div></p>
<h2>5. Why is the EPA acting now?</h2>
<p>This saga began in 2007, when the <a href="https://www.nrdc.org/">Natural Resources Defense Council</a> and the <a href="http://www.panna.org/">Pesticide Action Network</a> <a href="https://www.nrdc.org/sites/default/files/hea_10072201a.pdf">formally petitioned the EPA to ban chlorpyrifos</a>, citing epidemiological evidence that the chemical caused harm to brain development. (I worked at NRDC at the time and reviewed scientific studies on chlorpyrifos, but was not directly involved with the petition.)</p>
<p>Over a decade passed while the agency reevaluated the science, studying multiple ways of analyzing the data. In 2016 the EPA <a href="https://archive.epa.gov/epa/ingredients-used-pesticide-products/proposal-revoke-chlorpyrifos-food-residue-tolerances.html">proposed to grant the petition and ban chlorpyrifos</a>, but did not complete this action by the end of the Obama administration. </p>
<p>In July 2019, under the Trump administration, the EPA denied the petition, saying that claims about neurodevelopmental toxicity were “<a href="https://www.epa.gov/sites/production/files/2019-07/documents/prepubcopy_9997-06_fr_document_signed_2019-07-18.pdf">not supported by valid, complete and reliable evidence</a>.” Nonetheless, a <a href="https://www.epa.gov/ingredients-used-pesticide-products/chlorpyrifos">new EPA risk assessment released in 2020</a> identified significant risks associated with combined exposures to chlorpyrifos from multiple sources, including food and drinking water. </p>
<p>In late April 2021, a federal court in California ordered the agency to either <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/29/19-71979.pdf">ban use of chlorpyrifos on food within 60 days or show that it was safe</a>. “The EPA has had nearly 14 years to publish a legally sufficient response to the 2007 Petition,” the ruling stated. “During that time, the EPA’s egregious delay exposed a generation of American children to unsafe levels of chlorpyrifos.” </p>
<p>With the agency’s Aug. 18 <a href="https://www.epa.gov/newsreleases/epa-takes-action-address-risk-chlorpyrifos-and-protect-childrens-health">announcement</a>, that delay is finally over.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/why-california-is-banning-chlorpyrifos-a-widely-used-pesticide-5-questions-answered-130115">article</a> originally published on Jan. 23, 2020.</em></p><img src="https://counter.theconversation.com/content/166485/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gina Solomon worked for the California Environmental Protection Agency from 2012-2018. During that time, she helped to oversee the California scientific review of chlorpyrifos. In 2019, Dr. Solomon consulted for the California Department of Justice on matters involving the cancellation of chlorpyrifos in California. As a Senior Scientist at the Natural Resources Defense Council from 1996-2012, she was involved in reviewing scientific studies on chlorpyrifos; some of the scientific summaries she produced were used in the organization's 2007 petition to the U.S. EPA. </span></em></p>What kind of evidence does it require to get a widely used chemical banned? A professor of medicine and former state regulator explains how the case for chlorpyrifos as a threat to public health developed.Gina Solomon, Clinical Professor of Medicine, University of California, San FranciscoLicensed as Creative Commons – attribution, no derivatives.