Barack Obama’s Eulogy for John Lewis   

At the John Lewis memorial service on July 30 at the Ebenezer Baptist Church in Atlanta, Barack Obama gave the following moving eulogy.

The Eulogy [1]

James wrote to the believers, “Consider it pure joy, my brothers and sisters, whenever you face trials of many kinds, because you know that the testing of your faith produces perseverance. Let perseverance finish its work so that you may be mature and complete, lacking nothing.”

It is a great honor to be back in Ebenezer Baptist Church, in the pulpit of its greatest pastor, Dr. Martin Luther King, Jr., to pay my respects to perhaps his finest disciple — an American whose faith was tested again and again to produce a man of pure joy and unbreakable perseverance — John Robert Lewis.

To those who have spoken to Presidents Bush and Clinton, Madam Speaker, Reverend Warnock, Reverend King, John’s family, friends, his beloved staff, Mayor Bottoms — I’ve come here today because I, like so many Americans, owe a great debt to John Lewis and his forceful vision of freedom.

Now, this country is a constant work in progress. We were born with instructions: to form a more perfect union. Explicit in those words is the idea that we are imperfect; that what gives each new generation purpose is to take up the unfinished work of the last and carry it further than anyone might have thought possible.

John Lewis — the first of the Freedom Riders, head of the Student Nonviolent Coordinating Committee, youngest speaker at the March on Washington, leader of the march from Selma to Montgomery, Member of Congress representing the people of this state and this district for 33 years, mentor to young people, including me at the time, until his final day on this Earth — he not only embraced that responsibility, but he made it his life’s work.

Which isn’t bad for a boy from Troy. John was born into modest means — that means he was poor — in the heart of the Jim Crow South to parents who picked somebody else’s cotton. Apparently, he didn’t take to farm work — on days when he was supposed to help his brothers and sisters with their labor, he’d hide under the porch and make a break for the school bus when it showed up. His mother, Willie Mae Lewis, nurtured that curiosity in this shy, serious child. “Once you learn something,” she told her son, “once you get something inside your head, no one can take it away from you.”

As a boy, John listened through the door after bedtime as his father’s friends complained about the Klan. One Sunday as a teenager, he heard Dr. King preach on the radio. As a college student in Tennessee, he signed up for Jim Lawson’s workshops on the tactic of nonviolent civil disobedience. John Lewis was getting something inside his head, an idea he couldn’t shake that took hold of him — that nonviolent resistance and civil disobedience were the means to change laws, but also change hearts, and change minds, and change nations, and change the world.

So he helped organize the Nashville campaign in 1960. He and other young men and women sat at a segregated lunch counter, well-dressed, straight-backed, refusing to let a milkshake poured on their heads, or a cigarette extinguished on their backs, or a foot aimed at their ribs, refused to let that dent their dignity and their sense of purpose. And after a few months, the Nashville campaign achieved the first successful desegregation of public facilities in any major city in the South.

John got a taste of jail for the first, second, third … well, several times. But he also got a taste of victory. And it consumed him with righteous purpose. And he took the battle deeper into the South.

That same year, just weeks after the Supreme Court ruled that segregation of interstate bus facilities was unconstitutional, John and Bernard Lafayette bought two tickets, climbed aboard a Greyhound, sat up front, and refused to move. This was months before the first official Freedom Rides. He was doing a test. The trip was unsanctioned. Few knew what they were up to. And at every stop, through the night, apparently the angry driver stormed out of the bus and into the bus station. And John and Bernard had no idea what he might come back with or who he might come back with. Nobody was there to protect them. There were no camera crews to record events. You know, sometimes, we read about this and kind of take it for granted. Or at least we act as if it was inevitable. Imagine the courage of two people Malia’s age, younger than my oldest daughter, on their own, to challenge an entire infrastructure of oppression.

John was only twenty years old. But he pushed all twenty of those years to the center of the table, betting everything, all of it, that his example could challenge centuries of convention, and generations of brutal violence, and countless daily indignities suffered by African Americans.

Like John the Baptist preparing the way, like those Old Testament prophets speaking truth to kings, John Lewis did not hesitate — he kept on getting on board buses and sitting at lunch counters, got his mug shot taken again and again, marched again and again on a mission to change America.

Spoke to a quarter million people at the March on Washington when he was just 23.

Helped organize the Freedom Summer in Mississippi when he was just 24.

At the ripe old age of 25, John was asked to lead the march from Selma to Montgomery. He was warned that Governor Wallace had ordered troopers to use violence. But he and Hosea Williams and others led them across that bridge anyway. And we’ve all seen the film and the footage and the photographs, and President Clinton mentioned the trench coat, the knapsack, the book to read, the apple to eat, the toothbrush — apparently jails weren’t big on such creature comforts. And you look at those pictures and John looks so young and he’s small in stature. Looking every bit that shy, serious child that his mother had raised and yet, he is full of purpose. God’s put perseverance in him.

And we know what happened to the marchers that day. Their bones were cracked by billy clubs, their eyes and lungs choked with tear gas. As they knelt to pray, which made their heads even easier targets, and John was struck in the skull. And he thought he was going to die, surrounded by the sight of young Americans gagging, and bleeding, and trampled, victims in their own country of state-sponsored violence.

And the thing is, I imagine initially that day, the troopers thought that they had won the battle. You can imagine the conversations they had afterwards. You can imagine them saying, “Yeah, we showed them.” They figured they’d turned the protesters back over the bridge; that they’d kept, that they’d preserved a system that denied the basic humanity of their fellow citizens. Except this time, there were some cameras there. This time, the world saw what happened, bore witness to Black Americans who were asking for nothing more than to be treated like other Americans. Who were not asking for special treatment, just the equal treatment promised to them a century before, and almost another century before that.

When John woke up, and checked himself out of the hospital, he would make sure the world saw a movement that was, in the words of Scripture, “hard pressed on every side, but not crushed; perplexed but not in despair; persecuted, but not abandoned; struck down, but not destroyed.” They returned to Brown Chapel, a battered prophet, bandages around his head, and he said more marchers will come now. And the people came. And the troopers parted. And the marchers reached Montgomery. And their words reached the White House — and Lyndon Johnson, son of the South, said “We shall overcome,” and the Voting Rights Act was signed into law

The life of John Lewis was, in so many ways, exceptional. It vindicated the faith in our founding, redeemed that faith; that most American of ideas; that idea that any of us ordinary people without rank or wealth or title or fame can somehow point out the imperfections of this nation, and come together, and challenge the status quo, and decide that it is in our power to remake this country that we love until it more closely aligns with our highest ideals. What a radical ideal. What a revolutionary notion. This idea that any of us, ordinary people, a young kid from Troy can stand up to the powers and principalities and say no this isn’t right, this isn’t true, this isn’t just. We can do better. On the battlefield of justice, Americans like John, Americans like the Reverends Lowery and C.T. Vivian, two other patriots that we lost this year, liberated all of us that many Americans came to take for granted.

America was built by people like them. America was built by John Lewises. He as much as anyone in our history brought this country a little bit closer to our highest ideals. And someday, when we do finish that long journey toward freedom; when we do form a more perfect union — whether it’s years from now, or decades, or even if it takes another two centuries — John Lewis will be a founding father of that fuller, fairer, better America.

And yet, as exceptional as John was, here’s the thing: John never believed that what he did was more than any citizen of this country can do. I mentioned in the statement the day John passed, the thing about John was just how gentle and humble he was. And despite this storied, remarkable career, he treated everyone with kindness and respect because it was innate to him — this idea that any of us can do what he did if we are willing to persevere.

He believed that in all of us, there exists the capacity for great courage, that in all of us there is a longing to do what’s right, that in all of us there is a willingness to love all people, and to extend to them their God-given rights to dignity and respect. So many of us lose that sense. It’s taught out of us. We start feeling as if, in fact, that we can’t afford to extend kindness or decency to other people. That we’re better off if we are above other people and looking down on them, and so often that’s encouraged in our culture. But John always saw the best in us. And he never gave up, and never stopped speaking out because he saw the best in us. He believed in us even when we didn’t believe in ourselves. As a Congressman, he didn’t rest; he kept getting himself arrested. As an old man, he didn’t sit out any fight; he sat in, all night long, on the floor of the United States Capitol. I know his staff was stressed.

But the testing of his faith produced perseverance. He knew that the march is not yet over, that the race is not yet won, that we have not yet reached that blessed destination where we are judged by the content of our character. He knew from his own life that progress is fragile; that we have to be vigilant against the darker currents of this country’s history, of our own history, with their whirlpools of violence and hatred and despair that can always rise again.

Bull Connor may be gone. But today we witness with our own eyes police officers kneeling on the necks of Black Americans. George Wallace may be gone. But we can witness our federal government sending agents to use tear gas and batons against peaceful demonstrators. We may no longer have to guess the number of jelly beans in a jar in order to cast a ballot. But even as we sit here, there are those in power are doing their darnedest to discourage people from voting — by closing polling locations, and targeting minorities and students with restrictive ID laws, and attacking our voting rights with surgical precision, even undermining the Postal Service in the run-up to an election that is going to be dependent on mailed-in ballots so people don’t get sick.

Now, I know this is a celebration of John’s life. There are some who might say we shouldn’t dwell on such things. But that’s why I’m talking about it. John Lewis devoted his time on this Earth fighting the very attacks on democracy and what’s best in America that we are seeing circulate right now.

He knew that every single one of us has a God-given power. And that the fate of this democracy depends on how we use it; that democracy isn’t automatic, it has to be nurtured, it has to be tended to, we have to work at it, it’s hard. And so he knew it depends on whether we summon a measure, just a measure, of John’s moral courage to question what’s right and what’s wrong and call things as they are. He said that as long as he had breath in his body, he would do everything he could to preserve this democracy. That as long as we have breath in our bodies, we have to continue his cause. If we want our children to grow up in a democracy — not just with elections, but a true democracy, a representative democracy, a big-hearted, tolerant, vibrant, inclusive America of perpetual self-creation — then we are going to have to be more like John. We don’t have to do all the things he had to do because he did them for us. But we have got to do something. As the Lord instructed Paul, “Do not be afraid, go on speaking; do not be silent, for I am with you, and no one will attack you to harm you, for I have many in this city who are my people.” Just everybody’s just got to come out and vote. We’ve got all those people in the city but we can’t do nothing.

Like John, we have got to keep getting into that good trouble. He knew that nonviolent protest is patriotic; a way to raise public awareness, put a spotlight on injustice, and make the powers that be uncomfortable.

Like John, we don’t have to choose between protest and politics, it is not an either-or situation, it is a both-and situation. We have to engage in protests where that is effective but we also have to translate our passion and our causes into laws and institutional practices. That’s why John ran for Congress thirty-four years ago.

Like John, we have got to fight even harder for the most powerful tool we have, which is the right to vote. The Voting Rights Act is one of the crowning achievements of our democracy. It’s why John crossed that bridge. It’s why he spilled his blood. And by the way, it was the result of Democratic and Republican efforts. President Bush, who spoke here earlier, and his father, both signed its renewal when they were in office. President Clinton didn’t have to because it was the law when he arrived so instead he made a law that made it easier for people to register to vote.

But once the Supreme Court weakened the Voting Rights Act, some state legislatures unleashed a flood of laws designed specifically to make voting harder, especially, by the way, state legislatures where there is a lot of minority turnout and population growth. That’s not necessarily a mystery or an accident. It was an attack on what John fought for. It was an attack on our democratic freedoms. And we should treat it as such.

If politicians want to honor John, and I’m so grateful for the legacy of work of all the Congressional leaders who are here, but there’s a better way than a statement calling him a hero. You want to honor John? Let’s honor him by revitalizing the law that he was willing to die for. And by the way, naming it the John Lewis Voting Rights Act, that is a fine tribute. But John wouldn’t want us to stop there, trying to get back to where we already were. Once we pass the John Lewis Voting Rights Act, we should keep marching to make it even better.

By making sure every American is automatically registered to vote, including former inmates who’ve earned their second chance.

By adding polling places, and expanding early voting, and making Election Day a national holiday, so if you are someone who is working in a factory, or you are a single mom who has got to go to her job and doesn’t get time off, you can still cast your ballot.

By guaranteeing that every American citizen has equal representation in our government, including the American citizens who live in Washington, D.C. and in Puerto Rico. They are Americans.

By ending some of the partisan gerrymandering — so that all voters have the power to choose their politicians, not the other way around.

And if all this takes eliminating the filibuster — another Jim Crow relic — in order to secure the God-given rights of every American, then that’s what we should do.

And yet, even if we do all this — even if every bogus voter suppression law was struck off the books today — we have got to be honest with ourselves that too many of us choose not to exercise the franchise; that too many of our citizens believe their vote won’t make a difference, or they buy into the cynicism that, by the way, is the central strategy of voter suppression, to make you discouraged, to stop believing in your own power.

So we are also going to have to remember what John said: “If you don’t do everything you can to change things, then they will remain the same. You only pass this way once. You have to give it all you have.” As long as young people are protesting in the streets, hoping real change takes hold, I’m hopeful but we cannot casually abandon them at the ballot box. Not when few elections have been as urgent, on so many levels, as this one. We cannot treat voting as an errand to run if we have some time. We have to treat it as the most important action we can take on behalf of democracy.

Like John, we have to give it all we have.

I was proud that John Lewis was a friend of mine. I met him when I was in law school. He came to speak and I went up and I said, “Mr. Lewis, you are one of my heroes. What inspired me more than anything as a young man was to see what you and Reverend Lawson and Bob Moses and Diane Nash and others did.” And he got that kind of — aw shucks, thank you very much.

The next time I saw him, I had been elected to the United States Senate. And I told him, “John, I am here because of you.” On Inauguration Day in 2008, 2009, he was one of the first people that I greeted and hugged on that stand. I told him, “This is your day too.”

He was a good and kind and gentle man. And he believed in us — even when we don’t believe in ourselves. It’s fitting that the last time John and I shared a public forum was on Zoom. I am pretty sure that neither he nor I set up the Zoom call because we didn’t know how to work it. It was a virtual town hall with a gathering of young activists who had been helping to lead this summer’s demonstrations in the wake of George Floyd’s death. And afterwards, I spoke to John privately, and he could not have been prouder to see this new generation of activists standing up for freedom and equality; a new generation that was intent on voting and protecting the right to vote; in some cases, a new generation running for political office.

I told him, all those young people, John — of every race and every religion, from every background and gender and sexual orientation — John, those are your children. They learned from your example, even if they didn’t always know it. They had understood, through him, what American citizenship requires, even if they had only heard about his courage through the history books.

“By the thousands, faceless, anonymous, relentless young people, Black and white … have taken our whole nation back to those great wells of democracy which were dug deep by the founding fathers in the formulation of the Constitution and the Declaration of Independence.”

Dr. King said that in the 1960s. And it came true again this summer.

We see it outside our windows, in big cities and rural towns, in men and women, young and old, straight Americans and LGBTQ Americans, Blacks who long for equal treatment and whites who can no longer accept freedom for themselves while witnessing the subjugation of their fellow Americans. We see it in everybody doing the hard work of overcoming complacency, of overcoming our own fears and our own prejudices, our own hatreds. You see it in people trying to be better, truer versions of ourselves.

And that’s what John Lewis teaches us. That’s where real courage comes from. Not from turning on each other, but by turning towards one another. Not by sowing hatred and division, but by spreading love and truth. Not by avoiding our responsibilities to create a better America and a better world, but by embracing those responsibilities with joy and perseverance and discovering that in our beloved community, we do not walk alone.

What a gift John Lewis was. We are all so lucky to have had him walk with us for a while, and show us the way.

God bless you all. God bless America. God bless this gentle soul who pulled it closer to its promise.

Observation

I agree with the Washington Post columnist, Jennifer Rubin, that Obama’s eulogy “provided presidential gravitas” and a “timely affirmation that the United States is in a constant state of rebirth and is not the province of one race or religion.” In addition, Obama reminded us that Lewis “knew from his own life that progress is fragile, that we have to be vigilant against the darker currents of this country’s history. Of our own history.” In short, Lewis “vindicated the faith in our founding. The idea that any of us, ordinary people without rank or wealth or title or fame, can somehow point out the imperfections of this nation and come together and challenge the status quo. . . . What a radical idea. What a revolutionary notion.”[2]

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[1] Read the Full Transcript of Obama’s Eulogy for John Lewis, N.Y. Times (July 30, 2020) (includes full video of Obama’s delivery of the eulogy).

[2] Rubin, Obama reminds us what it’s like to have a president who understands America, Wash. Post (July 31, 2020).

 

John Lewis’ Final Message for the American People            

Shortly before he died on July 17, John Lewis wrote this essay to be published upon the day of his funeral, which was held on July 30.

Together, You Can Redeem the Soul of Our Nation[1]

“While my time here has now come to an end, I want you to know that in the last days and hours of my life you inspired me. You filled me with hope about the next chapter of the great American story when you used your power to make a difference in our society. Millions of people motivated simply by human compassion laid down the burdens of division. Around the country and the world you set aside race, class, age, language and nationality to demand respect for human dignity.”

“That is why I had to visit Black Lives Matter Plaza in Washington, though I was admitted to the hospital the following day. I just had to see and feel it for myself that, after many years of silent witness, the truth is still marching on.”

“Emmett Till was my George Floyd. He was my Rayshard Brooks, Sandra Bland and Breonna Taylor. He was 14 when he was killed, and I was only 15 years old at the time. I will never ever forget the moment when it became so clear that he could easily have been me. In those days, fear constrained us like an imaginary prison, and troubling thoughts of potential brutality committed for no understandable reason were the bars.”[2]

“Though I was surrounded by two loving parents, plenty of brothers, sisters and cousins, their love could not protect me from the unholy oppression waiting just outside that family circle. Unchecked, unrestrained violence and government-sanctioned terror had the power to turn a simple stroll to the store for some Skittles or an innocent morning jog down a lonesome country road into a nightmare. If we are to survive as one unified nation, we must discover what so readily takes root in our hearts that could rob Mother Emanuel Church in South Carolina of her brightest and best, shoot unwitting concertgoers in Las Vegas and choke to death the hopes and dreams of a gifted violinist like Elijah McClain.”

“Like so many young people today, I was searching for a way out, or some might say a way in, and then I heard the voice of Dr. Martin Luther King Jr. on an old radio. He was talking about the philosophy and discipline of nonviolence. He said we are all complicit when we tolerate injustice. He said it is not enough to say it will get better by and by. He said each of us has a moral obligation to stand up, speak up and speak out. When you see something that is not right, you must say something. You must do something. Democracy is not a state. It is an act, and each generation must do its part to help build what we called the Beloved Community, a nation and world society at peace with itself.”

“Ordinary people with extraordinary vision can redeem the soul of America by getting in what I call good trouble, necessary trouble. Voting and participating in the democratic process are key. The vote is the most powerful nonviolent change agent you have in a democratic society. You must use it because it is not guaranteed. You can lose it.”

“You must also study and learn the lessons of history because humanity has been involved in this soul-wrenching, existential struggle for a very long time. People on every continent have stood in your shoes, through decades and centuries before you. The truth does not change, and that is why the answers worked out long ago can help you find solutions to the challenges of our time. Continue to build union between movements stretching across the globe because we must put away our willingness to profit from the exploitation of others.”

“Though I may not be here with you, I urge you to answer the highest calling of your heart and stand up for what you truly believe. In my life I have done all I can to demonstrate that the way of peace, the way of love and nonviolence is the more excellent way. Now it is your turn to let freedom ring.”

“When historians pick up their pens to write the story of the 21st century, let them say that it was your generation who laid down the heavy burdens of hate at last and that peace finally triumphed over violence, aggression and war. So I say to you, walk with the wind, brothers and sisters, and let the spirit of peace and the power of everlasting love be your guide.”

Reaction

 Amen, Brother, Amen!

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[1] Lewis, Together, You Can Redeem the Soul of Our Nation, N.Y. Times (July 30, 2020).

[2] Emmett Till was killed by lynching on August 28, 1955. (Emmett Till is murdered, History.com.)

Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing

On July 29, attorneys for ex-officer Tou Thau filed a motion for dismissal of the criminal charges of aiding and abetting the May 25th killing of George Floyd. The attorneys argue the prosecutors had failed to show that Thao knew that Chauvin and the other officers were going to commit a crime and  that Thao’s presence or actions at the scene were done “to further commission of that crime.”[1]

The prosecution’s response is due August 17 with the hearing on the motion set for September 11. Also to be heard at that hearing is a similar dismissal motion by ex-officer Thomas Lane.[2]

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[1] Furst, Tou Thao seeks dismissal of charges in George Floyd’s killing, StarTribune (July 30, 2020); Assoc. Press, Ex-Minneapolis cop argues for dropped charges in Floyd death, mprnews.org (July 29, 2020).

[2]  Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing, dwkcommentaries.com (July 9, 2020).

 

U.S. Commission on Unalienable Rights’ Report

On July 7, 2019, the U.S. State Department launched its Commission on Unalienable Rights to conduct ”an informed review of the role of human rights in American foreign policy.” This study was to focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 [United Nations] Universal Declaration of Human Rights.” The next day Secretary of State Michael Pompeo announced that the group’s chair would be Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School, an expert on human rights, comparative law and political theory and former U.S. Ambassador to the Holy See, who would be aided by nine other eminent members.[1]

Over the next year the Commission held six public meetings with these ten distinguished speakers: (1) Michael W. McConnell, a Stanford University law professor and former federal appellate judge;  (2)  Wilfred M. McClay, a humanities professor at the University of Tennessee; (3) Cass Sunstein, a professor at Harvard Law School; (4) Orlando Patterson, a Professor of Sociology at Harvard University;  (5) Michael Abramowitz, the director of the Committee on Conscience at the U.S. Holocaust Memorial Museum; (6) Miles Yu, a Chinese-American and principal China policy and planning advisor to Secretary Pompeo; (7) Kenneth Roth, Executive Director of Human Rights Watch; (8) Diane Orentlicher, Professor of International Law at American University; (9) Martha Minow,  Harvard Law School professor and expert in human rights and advocacy for members of racial and religious minorities and for women, children, and persons with disabilities; and (10) Thor Halverssen, a Venezuelan-Norwegian businessman and human rights activist.[2]

On July 16, 2020, the Commission issued its 60-page report, which is subject to public comment through July 30 and which will be reviewed in this post. [3] Subsequent posts will examine Secretary Pompeo’s personal endorsement of that report and his conversation about the report with Chair Glendon as well as reactions from others outside the Commission.

The Report: Unalienable and Positive Rights

“The 17th century British subjects who settled, and built thriving communities along, the eastern seaboard of what they regarded as a new world brought with them a variety of traditions. . . . Among the traditions that formed the American spirit, three stand out. Protestant Christianity, widely practiced by the citizenry at the time, was infused with the beautiful Biblical teachings that every human being is imbued with dignity and bears responsibilities toward fellow human beings, because each is made in the image of God. The civic republican ideal, rooted in classical Rome, stressed that freedom and equality under law depend on an ethical citizenry that embraces the obligations of self-government. And classical liberalism put at the front and center of politics the moral premise that human beings are by nature free and equal, which strengthened the political conviction that legitimate government derives from the consent of the governed.”

Each of these “distinctive traditions that nourished the American spirit contributed to the core conviction that government’s primary responsibility was to secure unalienable rights — that is, rights inherent in all persons. The Declaration of Independence proclaims this core conviction:” ‘that all men are created equal, that they are endowed by their Creator, with certain unalienable rights, that among there are Life, :liberty, and the pursuit of happiness.”

“To say that a right, as the founders understood it, is unalienable is to signify that it is inseparable from our humanity, and thereby to distinguish it from other sorts of rights. The most fundamental distinction is between unalienable rights — sometimes referred to as natural rights in the founding era and today commonly called human rights — and positive rights. Unalienable rights are universal and nontransferable. They are pre-political in the sense that they are not created by persons or society but rather set standards for politics. They owe their existence not to the determinations of authorities or to the practices of different traditions but to the fundamental features of our humanity. . . . {S]uch rights are essential to the dignity and capacity for freedom that are woven into human nature.”

“In contrast, positive rights are created by, and can only exist in, civil society. Positive rights owe their existence to custom, tradition, and to positive law, which is the law created by human beings. Because custom, tradition, and positive law vary from country to country, so too do positive rights. In the same country, positive rights may evolve over centuries, may be legislated at a distinct moment, and may be revised or repealed.”

“To say that positive rights are not universal, however, is not to deny their importance, and to say that they are distinct from unalienable rights is not to deny that the two can be closely connected in political affairs. Unalienable rights provide a standard by which positive rights and positive law can be judged, while positive rights and positive law make the promise of unalienable rights concrete by giving expression to and instantiating unalienable rights.”

All of the above, in this blogger’s judgment, is eminently reasonable.

The Report: The Foremost Unalienable Rights

The Report, however, in this blogger’s opinion, is on shakier ground when it goes on to say, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty. A political society that destroys the possibility of either loses its legitimacy.”

“For the founders,” the Report goes on to say, “property refers not only to physical goods and the fruit of one’s labor but also encompasses life, liberty, and the pursuit of happiness. They assumed, following philosopher John Locke, that the protection of property rights benefits all by increasing the incentive for producing goods and delivering services desired by others.’

‘The benefits of property rights, though, are not only pecuniary. Protection of property rights is also central to the effective exercise of positive rights and to the pursuit of happiness in family, community, and worship. Without the ability to maintain control over one’s labor, goods, land, home, and other material possessions, one can neither enjoy individual rights nor can society build a common life. Moreover, the choices we make about what and how to produce, exchange, distribute, and consume can be tightly bound up with the kinds of human beings we wish to become. Not least, the right of private property sustains a sphere generally off limits to government, a sphere in which individuals, their families, and the communities they form can pursue happiness in peace and prosperity.”

“The importance that the founders attached to private property only compounds the affront to unalienable rights involved at America’s founding in treating fellow human beings as property. It also explains why many abolitionists thought that owning property was a necessary element of emancipation: only by becoming property-owning citizens could former slaves exercise economic independence and so fully enjoy their unalienable rights.”

“Religious liberty enjoys similar primacy in the American political tradition — as an unalienable right, an enduring limit on state power, and a protector of seedbeds of civic virtues. In 1785, James Madison gave classic expression to its centrality in founding-era thinking in his ‘Memorial and Remonstrance Against Religious Assessments.’ Quoting the Virginia Declaration of Rights’ definition of religion, Madison wrote, ‘we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.’ Freedom of conscience in matters of religion is unalienable “because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.’”

The Report: The Universal Declaration of Human Rights (UDHR)[4]

The report endorsed the statement of Eleanor Roosevelt, a U.S. citizen and Chair of the commission that drafted the UDHR, when the U.N. General Assembly in 1948 was considering the adoption of this instrument: “[I]t is of primary importance, that we keep clearly in mind the basic character of the document. It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation. It is a Declaration of basic principles of human rights and freedoms, to serve as a common standard of achievement for all peoples of all nations” (emphasis added).

Moreover, the UDHR has ”overarching principles and structural dimensions” connected to the U.S. founding and foreign policy.

First, the UDHR “gave voice to the conscience of global humanity for the first time in history.”

Second, the UDHR “includes only those [rights] that were capable of attaining a near-universal consensus among the diverse nations represented at the UN . . . [and] were expressed in open-ended terms in order to achieve consensus and garner widespread support.”

Third, the UDHR “was written and understood as an integrated set of interlocking principles.”

Fourth, the UDHR “affirms that human dignity, freedom, equality, and community are indissolubly linked.” It makes “clear that human dignity is inherent: it pertains to human beings solely because they are human beings . . . and provides a moral standards for evaluating positive law.” Thus, “the idea of human dignity at the heart of the [UDHR}converges with the idea of ‘unalienable rights’ in the American political tradition.”

Fifth, the UDHR has the “capacity to accommodate a broadly diverse set of political, economic, cultural, religious, and legal traditions” and “can be concretely realized in different political systems . . . [allowing] significant latitude in their interpretation and application.”

The Report: Future U.S. Foreign Policy and Human Rights

  1. “U.S. Needs To Vigorously Champion Human Rights in Foreign Policy

The U.S., “ by virtue of the principles deeply inscribed in its constitutional system and its international commitments, must champion vigorously the vision that it and nearly every other nation pledged to support when they approved the[UDHR].. It is by fidelity to what is best in the nation that the United States can respond most effectively to the manifold demands of the moment. Each of the major traditions that merged in America’s founding — Biblical faith, civic republicanism, and the modern tradition of freedom — nourished the nation’s core convictions that government is properly rooted in the consent of the governed and that its first purpose is to secure the rights that all human beings share. These core convictions, and the traditions that nourish them, are a source of inspiration and strength. It is no exaggeration to say that, with people around the world counting on America to champion fundamental rights, this country’s energetic dedication to that task will have no small influence on the future of freedom.”

  1. “The Power of Example Is Enormous”

The U.S. should serve “as an example of a rights-respecting society where citizens live together under law amid the nation’s great religious, ethnic, and cultural heterogeneity.” The U.S. also needs “to recognize the gap between our principles and the imperfections of our politics and can demonstrate, as we ask of others, tangible efforts at improvements.” 

  1. “Human Rights Are Universal and Indivisible

The U.S. needs to criticize when rights in UDHR “are radically subordinated in the name of development or other social and economic objectives.”

  1. “Universality and Indivisibility of Human Rights Does Not Mean Uniformity in Bringing Them to Life”

The UDHR contemplates “some variation in emphasis, interpretation, and mode of implementation.”

  1. A Degree of Pluralism in Respecting Human Rights Does Not Imply Cultural Relativism

“The scope for diversity in bringing human rights to life is circumscribed by the duty to ‘promote and protect all human rights and fundamental freedoms,’ and by the . . . [requirement] that all rights must be exercised with due respect for the rights of others and that its rights may be subject to “such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

  1. Nation-States Have Some Leeway To Base Their Human Rights Policy on Their Own Distinctive National Traditions

Yet such policies must be “consistent with the overarching conviction affirmed in Article I of the UDHR that ‘All human beings are born free and equal in dignity and rights.’”

  1. Certain Distinctions Among [Human Rights] Are Inherent in the [UDHR] . . .,as Well as in the Positive Law of Human Rights

“U.S. foreign policy can and should consider which rights most accord with national principles and interests at any given time. Such judgments must take into consideration both the distinctive American contributions to the human rights project and also prudential judgments about current conditions, threats, and opportunities.”

However, “some international norms, like the prohibition on genocide, are so universal that they are recognized as norms of jus cogens — that is, principles of international law that no state can legitimately set aside. The application of certain human rights demands a high degree of uniformity of practice among nations, as in the prohibition of torture, while others allow for considerable variation in emphases.”

  1. Freedom, Democracy, and Human Rights Are Indissolubly Linked

This “invites a [U.S.] commitment to the promotion of individual freedom and democratic processes and institutions as central to the U.S. human rights agenda. By the same token, it counsels considerable deference to the decisions of democratic majorities in other countries, recognizing that self-governance may lead them to set their own distinctive priorities. The U.S. promotion of fundamental rights should always be sensitive to the outcomes of ordinary democratic politics and the legitimate exercise of national sovereignty, and wary of rights claims that seek to bypass democratic institutions and processes.”

  1. Social and Economic Rights Are Essential to a Comprehensive [U.S.] Foreign Policy

The U.S. was a major supporter of the indivisibility principle as well as the aspiration for “better standards of life in larger freedom” . . . in the UN Charter and the [UDHR] Preamble.” For the U.S.,  implementation of these rights were “left up to each nation.” A “minimum standard of living is essential to the effective exercise of civil and political rights.”

  1. New Claims of Rights Must Be Carefully Considered”

“The effort to shut down legitimate debate by recasting contestable policy preferences as fixed and unquestionable human rights imperatives promotes intolerance, impedes reconciliation, devalues core rights, and denies rights in the name of rights. In sum, the [U.S.] should be open to, but cautious in, endorsing new claims of human rights.”

  1. National Sovereignty Is Vital to Securing Human Rights”

The U.S. “should resist attempts at creating new rights through means that bypass democratic institutions and procedures, or that are inconsistent with the understandings on the basis of which the [U.S.] entered into international agreements. {The U.S. also] should respect the independence and sovereignty of nation-states to make their own moral and political decisions that affirm universal human rights within the limits set forth in the UDHR.”

  1. The Seedbeds of Human Rights Must Be Cultivated

“Respect for human rights must be cultivated, and the promotion of basic rights is only one element in building the kind of societies that promote human flourishing in all its dimensions. . . . The collective effort since 1948 to translate the UDHR’s broad principles of human rights into binding legal commitments through a network of treaties has achieved laudable results.”

As Eleanor Roosevelt said on the tenth anniversary of the UDHR, “Protection of human rights is a never-ending struggle, one that involves a nation’s sense of its own principles and purpose. . . . The surest protection of human freedom and dignity comes from the constitutions of free and democratic states undergirded by a tolerant, rights-respecting culture. As in the case of the United States’ distinctive rights tradition, the maintenance of the international human rights project will require attention to the ‘small places’ where the spirit of liberty is rooted, nurtured, and cultivated.”

=================================

[1] See U.S. Commission on Unalienable Rights Is Launched, dwkcommentaries.com (July 8, 2019); State Dep’t, Charter for the Commission on Unalienable Rights; State Dep’t, Commission on Unalienable Rights, Member BiosSee also List of Posts to dwkcommentaries—-Topical: U.S. Commission on Unalienable Rights.

[2]  State Dep’t, Policy Planning Staff, Commission on Unalienable Rights; State Dep’t, Public Submissions to the Commission [on Unalienable Rights].

[3] State Dep’t, Draft Report of the Commission on Unalienable Rights (July 16, 2020).

[4] The Commission Chair, Mary Ann Glendon, is a noted authority on the UDHR. See Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001). See also Human Rights Commentaries by Mary Ann Glendon, Chair of  Commission on Unalienable Rights, dwkcommentaries.com  (Nov. 2, 2019).

 

 

 

Pandemic Journal (# 27): More Reflections on the Pandemic

The July 26 New York Times proclaims the statistics of the pandemic’s toll: [1]

  • For the world, there have been 16,034,200 cases in nearly every country with 644,925 deaths while the number of new cases is growing faster than ever with a daily average of more than 200,000.
  • The U.S. (including four territories), with at least 4,190,400 total cases has the most of any country in the world while recoding 146,314 deaths. “Case numbers are surging throughout most of the United States, including in many states that were among the first to reopen. Because the number of people hospitalized and the percentage of people testing positive also are rising in many of those places, the case spike cannot be solely explained by increased testing. Still, coronavirus deaths remain well below their peak levels. And as some places reimpose restrictions, others continue to reopen their economies.”
  • The State of Minnesota has had at least 50,331 cases and 1,611 deaths. “Over the past week, there have been an average of 689 cases per day, an increase of 22 percent from the average two weeks earlier.”

The pandemic has been having and continues to have a major negative impact on the world and U.S. economies. For the week ending July 25, the initial U.S. jobless claims rose to 1.4 million. This increase was the first in nearly four months, “a sign the jobs recovery could be faltering.” Now the $600/week jobless aid is nearing an end. Evictions loom for millions who cannot afford their rent while foreclosures loom for homeowners who cannot pay their mortgages. And the U.S. federal government recorded a budget deficit of $ 3 Trillion for the 12 months ending this June.[2]

These calamities have had a disproportionate impact on our African-American brothers and sisters. For example, in Minnesota 48% of Black workers have filed for unemployment compensation versus 22% of white workers. “One of the big reasons for the unemployment disparity in Minnesota is that Black Minnesotans are more likely to be employed at hotels, restaurants, retail, health and other service-related industries that have seen the most job losses because of stay-at-home orders and other pandemic-induced slowdowns.” In addition, “the pandemic also has disproportionately hurt American Indian, Latino and Asian American employment in the state. Women, younger workers and those with less education have also taken a bigger hit.”[3]

In the midst of these immense problems and challenges, President Trump continues to lie and demonstrate his incompetence. As a result, the rest of the world is shocked and dismayed.[4] I worry that Trump will attempt in some fashion to try to steal the election.[5]

Although I am retired with good health and financial savings and thus not personally affected (so far) by these woes, I worry about the impact of these crises on my sons and grandchildren. More generally I am worried about the negative impact of these crises on people and countries all over the world and the U.S. in particular that will linger for all their lives as I believe happened to those who lived through the Great Depression of the 1930’s.

“Investing in the Future” was the sermon today at Westminster Presbyterian Church by Associate Pastor Sarah Brouwer. It drew upon Jeremiah 19: 1-14, where the Prophet sends a letter to the Jewish people who have been taken into exile in Babylon after the Babylonians had destroyed the Temple in Jerusalem. God tells the exiles, “Build houses and live in them; plant gardens and eat what they produce. Take wives and have sons and daughters; take wives for your sons, and give your daughters in marriage, that they may bear sons and daughters; multiply there, and do not decrease. But seek the welfare of the city where I have sent you into exile, and pray to the Lord on its behalf, for in its welfare you will find your welfare.”

This passage of Jeremiah continues. “Only when Babylon’s seventy years are completed will [the Lord] visit you, and I will fulfill to you my promise and bring you back to [Jerusalem]. For surely I know the plans I have for you, says the Lord, plans for your welfare and not for harm, to give you a future with hope. Then when you call upon me and come and pray to me, I will hear you. When you search for me, you will find me; if you seek me with all your heart, I will let you find me, says the Lord, and I will restore your fortunes and gather you from all the nations and all the places where I have driven you, says the Lord., and I will bring you back to the place from which I sent you [Jerusalem] into exile.”

According to Rev. Brouwer, this passage reminds us today to shed our expertise and judgment, relearn old ways and accept marginal status in the current pandemic in order later to flourish.

================================

[1] Coronavirus Map: Tracking the Global Outbreak, N.Y.Times (July 26, 2020, 9.21 a.m. EDT); Coronavirus in the U.S.: Latest Map and Case Count, N.Y.Times (July 26,2020, 9.21 a.m. EDT); Minnesota Coronavirus Map and Case Count, N.Y.Times (July 26,2020, 9:21 a.m. EDT); Hyatt, Minnesota COVID-19 cases up by 871; 3 more deaths reported, StarTribune (July 26, 2020). See also List of Posts to dwkcommentaries–Topical: Pandemic Journal.

[2] Davidson, Coronavirus Spending Pushes U.S. Budget Deficit to $ 3 Trillion for 12 Months Through June, W.S.J. (July 13, 2020); Kiernan, Evictions Loom for Millions Who Can’t Afford Rent, W.S.J. (July 16, 2020); Chaney & Mackrael, Jobs Recovery Shows Signs of Slowing as Coronavirus Surges, W.S.J. (July 17, 2020);Benoit, What Banks Tell Us About Business: Everybody Is Struggling, W.S.J. (July 18, 2020); Morath & Chen, As $600-a-week Jobless Aid Nears End, Congress Faces a Quandary, W.S.J. (July 19, 2020).

[3] Kumar, Half of Black workers in Minnesota have lost work during pandemic, StarTribune (July 18, 2020).

[4] E.g., Achenbach, Wan, Brulliard & Janes, The crisis that shocked the world: America’s response to the coronavirus, Wash. Post (July 19, 2020).

[5] E..g., Sonmez, Trump declines to say whether he will accept November election results, Wash. Post (July 19, 2020). See also, Election Officials’ Dread About This Year’s U.S. Election, dwkcommentaries.com (July 11, 2020).

 

 

Gary Hart Concerned About Emergency Powers of President 

 Gary Hart, the former U.S. Senator from Colorado and a former presidential candidate, has said, “We have recently come to learn of at least a hundred documents authorizing extraordinary presidential powers in the case of a national emergency, virtually dictatorial powers without congressional or judicial checks and balances.” And this March President Donald Trump bragged, “I have the right to do a lot of things that people don’t even know about.” [1]

According to Hart, “What little we know about these secret powers comes from the Brennan Center for Justice at the New York University Law School, but we believe they may include suspension of habeas corpus, surveillance, home intrusion, arrest without a judicial warrant, collective if not mass arrests and more; some could violate constitutional protections.”[2]

Hart, therefore, presses for an investigation and public disclosure of such powers. Indeed, he says, “public hearings should be held before the November elections, especially with rumors rife that the incumbent president might interfere with the election or refuse to accept the result if he felt in jeopardy of losing.”

“The most obvious first question is why these far-reaching powers are kept secret, not only from Congress but also from the American people. The second question is why they are necessary at all. And ultimately, should not there be permanent congressional oversight of any suggestion for calling these powers into operation? Under what dire conditions should our system of checks and balances among the executive, legislative and judicial branches be abandoned in favor of a dictatorship? And once a dictatorship is declared, what would be required to return us to our historic democratic system of government?”

Hart’s concern is made even more pressing by the recent disclosure that the Trump Administration is collaborating with attorney and law professor John Yoo on his expansive view of presidential power to rule by executive order.[3]

===========================

[1] Hart, How Powerful Is the President?, N.Y. Times  (July 23, 2020).

[2] Brennan Center for Justice, Emergency Powers. presid

[3] President Trump Prepares To Rule by Decree, dwkcommentariews.com (July 23, 2020).

 

President Trump Prepares To Rule By Decree

There are grounds to believe that the Trump Administration is preparing to bypass Congress and attempt to rule by presidential decree on many important issues in the months before this year’s election. We see this in Trump’s comments in his June 19th Fox News interview by Chris Wallace and articles about the Administration’s recent consultations with Professor John Yoo regarding his interpretation of the Supreme Court’s  June 18th decision invalidating the Trump Administration’s 2017 rescission of the DACA (Deferred Action for Childhood Arrivals) program.

Trump Comments in Fox News Interview[1]

Near the end of the lengthy Fox News interview of President Trump on July 19, Wallace said that Trump did not yet have a plan to replace Obamacare. Trump disagreed in the following lengthy response:

  • “We’re signing a health care plan within two weeks, a full and complete health care plan that the Supreme Court decision on DACA gave me the right to do. So we are going to . . . sign an immigration plan, a health care plan, and various other plans. And nobody will have done what I’m going to do in the next four weeks. The Supreme Court gave the president of the United States powers that nobody thought the president had, by approving, by doing what they did—their decision on DACA. And DACA’s going to be taken care of also. But we’re getting rid of it because we’re going to replace it with something much better. What we got rid of already, which was most of Obamacare, the individual mandate. And that I’ve already won on. And we won also on the Supreme Court. But the decision by the Supreme Court on DACA allows me to do things on immigration, on health care, on other things that we’ve never done before. And you’re going to find it to be a very exciting two weeks.”

Note that Trump cleverly did not mention John Yoo by name as the legal architect of this strategy.

Wallace apparently was not prepared for this answer, because he had no follow-up questions and instead immediately switched to asking about the Mary Trump book, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.

.The Supreme Court’s Decision on DACA[2]

The Court in a 5-4 Opinion by Chief Justice Roberts invalidated the 2017 decision by the Acting Secretary of the Department of Homeland Security (DHS), Elaine C. Duke, to terminate the Deferred Action for Childhood Arrivals (DACA) because that termination was “arbitrary and capricious” even though the Attorney General had determined that the DACA program was illegal. The defects in the DHS termination decision, said the Court, were failure to recognize that the defining feature of DACA was deferring removal of DACA recipients from the U.S. and the failure to assess “the existence and strength of any reliance interests” on that deferral by  DACA recipients.

Therefore, the only valid way for the DHS to terminate the DACA program, said the Court, was to proceed under the cumbersome Administrative Procedure Act.

Mr. Justice Thomas in his dissenting opinion for himself and Justices Alito and Gorsuch, said, “DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.”

Moreover, said Mr. Justice Thomas, “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.”

Yoo’s Interpretation of That Supreme Court Case[3]

Yoo, the Emmanuel S. Heller Professor of Law and Director of the Public Law & Policy Program at the University of California Berkeley School of Law, believes that the Supreme Court’s opinion is erroneous. In Yoo’s words, the opinion “upends the text, structure, and history of the Constitution, which generally prevents the occupants of a branch of government (who are temporary, after all) from binding their successors. . . . When a president wants to repeal an executive order, all he need do is issue a new executive order. . . . Recognizing a plenary power to reverse previous acts, contrary to the Supreme court’s DACA rule, comports best with the purposes behind the creation of the executive branch.”

Nevertheless, under this recent Supreme Court decision, in what may have intended as a reductio ad absurdum, Yoo said, “ presidents, including President Trump, may now stop enforcing laws they dislike, hand out permits or benefits that run contrary to acts of Congress and prevent their successors from repealing their policies for several years.” Thus, Trump, for example, could decline “to enforce the tax laws, and economic regulations . . . issue permits allowing federally financed or regulated construction project fully s to go forward . . . [and] defer action under environmental laws.”

In any event, we need an attorney knowledgeable about constitutional and federal administrative law to analyze and critique Yoo’s analysis of this Supreme Court opinion.

Trump Consultations with John Yoo[4]

We now have evidence that President Trump and others in the White House have been consulting with Yoo about this subject.

At least that is what Professor Yoo said to Julian Borger, the author of an article in the Guardian of London on these issues. There also are reports by Axios that “President Trump and top White House officials are privately considering a controversial strategy to act without legal authority to enact new federal policies-starting with immigration,” that a copy of Yoo’s article on the subject in the National Review was “spotted atop Trump’s desk in the Oval Office” and that “White House thinking is being heavily influenced by John Yoo.’”

Reactions[5]

 Yoo’s interpretation of this case was called “indefensible” by constitutional lawyer and  professor Laurence Tribe with these additional comments. “I fear that this lawless administration will take full advantage of the fact that judicial wheels grind slowly and that it will be difficult to keep up with the many ways Trump, aided and abetted by Bill Barr as attorney general and Chad Wolf as acting head of homeland security, can usurp congressional powers and abridge fundamental rights in the immigration space in particular but also in matters of public health and safety.”

Of the same opinion is Alka Pradhan, a Lecturer in Law at the University of Pennsylvania Law School and defense counsel in the 9/11 terrorism cases against inmates in the Guantánamo Bay prison camp. She said, “John Yoo’s so-called reasoning has always been based on ‘What can the president get away with?’ rather than ‘What is the purpose and letter of the law?’ That is not legal reasoning, it’s inherently tyrannical and anti-democratic.”

In the New Republic, Matt Ford has a more extensive analysis. He says Yoo has “a disfigured reading” of the DACA case. In Ford’s opinion, “The Supreme Court did not explicitly rule that DACA itself was legal or illegal last month, only that Trump’s efforts to reverse it violated the Administrative Procedure Act, a federal law that sets out how executive agencies write new rules and regulations. Roberts, writing for the court, concluded that the Department of Homeland Security ran afoul of the APA by not providing enough justification for its sweeping move. ‘We do not decide whether DACA or its rescission are sound policies. The wisdom of those decisions is none of our concern,’ the Chief Justice wrote. ‘We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.’”

In addition, Matt Ford asserts, “Yoo’s Trumpian turn is far from surprising. In both government service and academic life, he has advanced an untrammeled vision of executive power that brushes aside most constraints imposed upon presidents by Congress or international law. His highest-profile work came during George W. Bush’s first term in office, when he worked in the Justice Department’s Office of Legal Counsel, which provides legal advice to other parts of the executive branch. In that role, Yoo helped draft a series of memos that effectively authorized torture of terrorism suspects and justified warrantless surveillance of Americans, arguing that the president’s wartime powers trumped almost all other constraints.”

Those memos by Yoo and Jay Bybee, says Ford, were castigated in 2009 as “professional misconduct” by the Justice Department’s Office of Professional Responsibility, which conclusion was rejected the next year by a senior official at the Department with this comment: “While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client.”

Matt Ford also notes that Yoo’s new book, Defender in Chief, is about to be published. According to its publisher, “Far from considering Trump an inherent threat to our nation’s founding principles, Yoo convincingly argues that Washington, Jefferson, Madison and Hamilton would have seen Trump as returning to their vision of presidential power, even at his most controversial. It is instead liberal opponents who would overthrow existing constitutional understanding in order to unseat Trump, but in getting their man would inflict permanent damage on the office of the presidency, the most important office in our constitutional system and the world.”[6]

Finally Matt Ford sees President Trump’s July 21st executive order excluding undocumented immigrants from the executive branch’s report to Congress on this year’s census  as a sign “that the White House is embracing Yoo’s mutilated logic.” This executive order, says Ford, contradicts the Constitution’s providing that members of the House of Representatives “are allotted according to ‘the whole number of persons in each State, excluding Indians not taxed.’ Since Congress automatically granted citizenship to all Native Americans by 1924, the ‘whole number of persons’ now truly means the whole number.” This conclusion was unanimously affirmed by the U.S. Supreme Court four years ago, but was ignored by this executive order and by President Trump’s July 21st statement that excluding undocumented immigrants from the report to Congress “reflects a better understanding of the Constitution and is consistent with the principles of our representative democracy.”[7]

It also should be noted that these latest moves by Yoo contradict what he said in February 2017, one month after Trump’s inauguration. Then Yoo had “grave concerns about Mr. Trump’s uses of presidential power” and was troubled by “little sign that he understood the constitutional roles  of the three branches.” Unless he changed, Yoo said, “our new president will spend his days overreacting to the latest events, dissipating his political capital and haphazardly wasting the executive’s powers.”[8]

Conclusion

 As an opponent of the re-election of Donald Trump, I believe he knows he is far behind Biden in nearly all the polls and needs to change his campaign message. I, therefore, believe that he will do what he mentioned in the Fox News interview and will argue that he is doing many things to meet the problems and challenges facing the U.S.

Be on guard, citizens and the Biden campaign!

=======================================

[1] Fox News, Transcript: ‘Fox News Sunday’ interview with President Trump (pp. 17-18), foxnews.com (July 19, 2020); Borger, Trump consults Bush torture lawyer on how to skirt law and rule by decree, Guardian (July 20, 2020); Marcus, Trump wants to be king. Did John Yoo just hand him the crown?, Wash. Post (July 21, 2020).

[2] Department of Homeland Security v. Regents of the University of California, No. 18-587 (U.S. Sup. Ct. June 18, 2020.

[3] Yoo, How the Supreme Court’s DACA Decision Harms the Constitution, the Presidency, Congress, and the Country, National Review (June 22, 2020); Yoo, How Trump Can Weaponize the DACA Decision and Cut Taxes, Newsweek (June 24, 2020): Treene & Kight, Scoop: Trump’s license to skirt the law, Axios (July 19, 2020); Borger, supra; Marcus, supra. Ford, John Yoo’s Twisted Path to Trumpism, New Republic (the Soapbox) (July 22, 2020). https://newrepublic.com/article/158589/john-yoo-twisted-path-trumpism

[4] Treene & Kight, supra; Borger, supra; Marcus, supra.

[5] Borger, supra; Marcus, supra; Ford, supra.

[6] Macmillan, Defender in Chief: Donald Trump’s Fight for Presidential Power (2020).

[7]  White House, Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census (July 21, 2020); White House, Statement from the President Regarding Apportionment (July 21, 2020); White House, President Donald J. Trump Is Taking Action to Ensure American Citizens Receive Proper Representation in Congress (July 21, 2020); Rogers & Baker, Trump Seeks to Stop Counting Unauthorized Immigrants in Drawing House Districts, N.Y. Times (July 21, 2020).

[8] Yoo, Executive Power Run Amok, N.Y. Times (Feb. 8, 2017).

 

Chauvin and Wife Now Charged with Minnesota Tax Crimes  

On July 22, Derek Chauvin and his wife, Kellie Chauvin, were charged with Minnesota felony tax crimes dating back to 2014 that allege failure to report more than $460,000 in income — at least $96,000 of that in his off-duty security work. This resulted in their illegal failure to pay $21,853 in Minnesota taxes, which with interest and late filing and fraud penalties, amounts to $37,868.[1]

These charges were filed in Washington County District Court in Stillwater, Minnesota. County Attorney Pete Orput said the investigation of the two “was in the works well before” Derek Chauvin was charged with Floyd’s death. Orput added that his office was contacted in June by the state Department of Revenue officials with what they found, including getting no responses from the Chauvins to letters about no returns having been filed for certain years.

Could these charges also signal possible charges for failure to pay federal income taxes?

==========================

[1] Walsh, Fired Minneapolis officer Derek Chauvin, wife charged with tax crimes, StarTribune (July 22, 2020);  Horner, Derek Chauvin, officer in George Floyd death, charged with felony tax fraud in Washington County, Twin Cities Pioneer Press (July 22, 2020); Ex-officer accused in killing of George Floyd also charged with tax crimes, Wash. Post (July 22, 2020); Read the tax charges against fired Minneapolis police officer Derek Chauvin, StarTribune (July 22, 2020).

 

 

Court Hearing in Criminal Cases Against the Four Ex-Policemen in George Floyd Killing      

On July 21 Hennepin County District Court Judge Peter Cahill held a hearing to hear arguments on several pending motions in the criminal cases against the four ex-police officers involved in the May 25th killing of George Floyd.[1]

First, was the motion by the four ex-policemen to hold Attorney-General Ellison in contempt of court for making a public statement about his hiring, pro bono, four additional attorneys for the prosecution. Before the hearing, an Assistant Attorney General said this motion was a ploy to smear the prosecution, and during the hearing the Judge said the statement was innocuous and did not violate the gag order.

In any event, during the hearing, the judge vacated the gag order. The Judge said that order could have been more narrowly drawn as it “didn’t work” and  “may have exacerbated the issue” by causing parties to “tip toe” around in their public statements while leading the news media to rely on anonymous sourcing.

Second, the Judge heard arguments on the motion by a media coalition to release the video footage of two body camera footage of the police’s restraint of Mr. Floyd, but did not rule on that motion.

During the hearing, the attorney for defendant Thomas Lane, said that Floyd had “swallowed drugs” as Lane approached the car and that the bodycam video actually showed Floyd “stuffing counterfeit bills down his [car] seat before he showed his hands.”

==========================

[1] Montemayor, Hennepin County judge drops gag order in case against four ex-cops charged in Killing of George Floyd, StarTribune (July 21, 2020); Ibrahim, Hennepin County judge lifts gag order in George Floyd criminal case, Twin Cities Pioneer Press (July 21, 2020); Lambert, Judge lifts gag order in criminal case against four former Minneapolis police officers, MINNPOST (July 22, 2020).

 

 

Minnesota Legislature Adopts Significant Police Reform

Early this morning, July 21, the Minnesota Legislature in Special Session adopted a significant police reform bill, the Minnesota Police Accountability Act. Just before midnight, the House did so, 102-29, and the Senate did the same a few hours later, 60-7 and sent the bill to Governor Tim Walz for his promised signature.[1]

Summary of the Act[2]

The House’s Research Memo about the Act listed the following provisions:

  • “Critical incident stress management teams and public safety peer counseling.
  • Investigatory reform.
  • Police residency reform.
  • Banning chokeholds and certain neck restraints.
  • Use of force reform.
  • Use of force reporting.
  • POST Board reform and citizen engagement.
  • Prohibiting warrior-style training.
  • POST Board model policies.
  • Mental health and crisis intervention training.
  • Mandatory autism training.
  • Requiring the duty to intervene and report.
  • Arbitration reform.
  • Peace officer training assistance funding extension.”

Here are that Research Memo’s summaries of some of these provisions in light of issues raised by the police killing of George Floyd on February 25th.

Prohibiting Chokeholds and Certain Neck Restraints (sections 7 and 8). “Prohibits a peace officer from using [chokeholds and] certain neck restraints, unless section 609.066 authorizes the use of deadly force to protect the peace officer or another from death or great bodily harm. With the exception described above, officers will no longer be able to use chokeholds, they will not be able to tie all of the person’s limbs together behind the person’s back to render the person immobile, and they cannot secure a person in any way that results in transporting the person face down in a vehicle. The only time a peace officer can restrict free movement of a person’s neck or head is to protect the peace officer or another from imminent harm. For the purposes of this section, chokeholds are defined as “a method by which a person applies sufficient pressure to a person to make breathing difficult or impossible, and includes but is not limited to any pressure to the neck, throat, or windpipe that may prevent or hinder breathing, or reduce the intake of air.” It also means, “applying pressure to a person’s neck on either side of the windpipe, but not to the windpipe itself, to stop the flow of blood to the brain via the carotid arteries.”

Prohibiting Warrior-Style Training (Section 12). “Prohibits the use of warrior-style training by law enforcement. It also states that the POST [Board of Police Officer Standards and Training] may not certify a continuing education course that includes warrior-style training; the Board may not grant continuing education credit to a peace officer for a course that includes warrior-style training; and the Board may not reimburse a law enforcement agency or a peace officer for a course that includes warrior-style training. Warrior-style training is defined in . . . this section as training for peace officers that dehumanizes people or encourages aggressive conduct by peace officers during encounters with others in a manner that deemphasizes the value of human life or constitutional rights, the result of which increases a peace officer’s likelihood or willingness to use deadly force.”

Requiring the Duty To Intervene and Report (Section 21). “This section lays out that peace officers, regardless of tenure or rank, must intercede when (1) present and observing another peace officer using force, in violation of MS, Section 609.066, Subd. 2, or otherwise beyond that which is objectively reasonable under the circumstance to prevent the use of unreasonable force; and (2) is physically and verbally in a position to do so. Lastly, this section establishes a duty to report excessive use of force incidents in writing to the chief law enforcement officer of the agency that employs the reporting officer and provides that failure to comply with either duty is grounds for POST Board discipline under the Board’s rules.”

Police Residency Reform (Section 6). “This section allows cities or counties to offer incentives to encourage a person hired as an officer to be a resident of that city or county. . . .”

Arbitration reform (Sections 22 and 24). “This section modifies how, and which arbitrators are used in peace officer grievance arbitration by establishing an arbitrator selection procedure. These changes apply to all peace officer grievance arbitrations for written disciplinary action, discharge, or termination, and must be included in the grievance procedure for all collective bargaining agreements covering peace officers negotiated on or after the enactment date.”

‘Once a peace officer grievance is filed, the Bureau of Mediation Services assigns or appoints an arbitrator from the roster, on a rotation through the roster alphabetically ordered by last name. All parties involved cannot be involved in selecting the arbitrator. The arbitrator or panel will decide the grievance, and the decision is binding subject to provisions of the Uniform Arbitration Act (Ch. 572B). The changes made to the arbitration process in this section only applies to peace officer grievances and do not apply to other public employees. Peace officers cannot agree to a collective bargaining agreement or grievance arbitration selection procedure that is not consistent with the changes in this section.”

“The Bureau of Mediation Services, . . .in consultation with community and law enforcement stakeholders, is required to appoint a roster of at least 6 qualified arbitrators. Any arbitrator seeking appointment to this roster must complete six hours of training in culture competency, racism, implicit bias, and recognize the value in community diversity and cultural differences. They will also be required complete six hours of training related to daily experiences of police officers The Bureau of Mediation Services may adopt rules establishing training requirements for the pool of arbitrators.”

Other Provisions. The Act also improves data collection around deadly force encounters, creates a new state unit to investigate those cases, and boosts funding for crisis intervention training for police.

Reactions to the New Act[3]

Representative Carlos Mariani (DFL-St. Paul), the author of the bill and chair of the House Public Safety and Criminal Justice Reform Division, after the House passage, said, ““Today, we’re beginning to make the overdue changes Minnesotans have been demanding to help ensure no more lives are lost due to police violence. By passing this bill into law, we’re taking the first steps toward major changes to hold police officers accountable for harmful acts, and we are committed to continuing our work for safer communities. It wasn’t safe for George Floyd or for Philando Castile, and they deserved a better way to police that builds community.”

Minnesota Senate Majority Leader Paul Gazelka (Rep.) said, ““We’ve never stopped working on this, whether we were in session or out of session. That’s something we all felt was important.”

Senator Jeff Hayden (DFL), who represents the district where police killed Floyd, said the Act fails to provide “robust police accountability measures and transformative criminal justice” while Senator Patricia Torres Ray (DFL-Minneapolis) voted against the bill because, she said, it “is not actually the bill that communities of color want.”

Upon passage, Minnesota Governor Tim Walz tweeted the following:

  • ‪”George Floyd’s death brought the urgent need for meaningful police reform into sharp focus.”
  • “Last night, the Legislature passed bipartisan police accountability and reform measures. This is a critical step toward justice.”
  • “But this is only the beginning. The work does not end today.”
  • “Everyone deserves to feel safe and protected by police. I look forward to signing these long-overdue reforms to strengthen transparency and community oversight, ban chokeholds and warrior training, expand de-escalation training for officers, and reduce the use of deadly force.”
  • “Thank you to the communities of color and the People of Color and Indigenous Caucus, who have led this conversation and fought tirelessly for change.”

Conclusion

 Congratulations to Representative Mariani for being the lead author of this bill and to all the State Senators and Representatives for persistently negotiating and compromising to produce this important reform of policing in Minnesota.

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[1] Bierschbach, Minnesota lawmakers pass sweeping package of police accountability measures, StarTribune (July 21, 2020); Mearhoff, Minnesota lawmakers advance police accountability measures 8 weeks after Floyd’s death, Twin Cities Pioneer Press (July 21, 2020); MPR, Legislature passes policing bill, ends special session, MPR News (July 21, 2020); Assoc. Press, Minnesota Lawmakers Ban Neck Restraints After Floyd’s Death, N.Y. Times (July 21, 2020); Bella, Minnesota passes police accountability measures, including banning chokeholds, two months after George Floyd’s death, Wash. Post (July 21, 2020); Orenstein & Callaghan, The Legislature just passed a police reform bill. What it does—and doesn’t do—to reshape law enforcement in Minnesota, MINNPOST (July 21, 2020); Cook, House, Senate agree to compromise
police reform. Minn. H. Rep.(July 21, 2020).

[2] Minnesota Legislature, Research Memo: HF 1 (Marlani), The Minnesota Police Accountability Act [July 2020); HF1 Minnesota Police Accountability Act (1st Engrossment)(July 21, 2020).

[3] Mariani, RELEASE: Minnesota House Passes Police Accountability Act (July 20, 2020); Governor Tim Walz, Tweet on Passage of Minnesota Police Accountability Act, facebook.com/GovTimWalz/ (July 21, 2020).