President Biden’s Executive Order on Policing

On May 25, 2022, President Joe Biden signed the Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety.[1] This lengthy Order calls for the creation of national standards for the accreditation of police departments and a national database of federal officers with substantiated complaints and disciplinary records, including those fired for misconduct. It also will instruct federal law enforcement agencies to update their use-of-force policies to emphasize de-escalation. The Order also restricts tactics like chokeholds and no-knock warrants and grants incentives to encourage state and local agencies to adopt the same standards while also banning the transfer of most military equipment to police.[2]

The signing was done on the second anniversary of the killing of George Floyd in the presence of members of his family as well as Vice President Harris, members of his Cabinet and lawmakers.

President Biden’s Comments on the Order

This order is “a measure of what we can do together to heal the very soul of this nation; to address the profound fear and trauma, exhaustion that particularly Black Americans have experienced for generations; and to channel that private pain and public outrage into a rare mark of progress for years to come.”

“Two summers ago, in the middle of a pandemic, we saw protests [about the killing of George Floyd] across the nation the likes of which you hadn’t seen since the 1960s.They unified people of every race and generation.  Athletes and sports leagues boycotted and postponed games.  Companies and workers proclaimed ‘Black Lives Matter.’  Students staged solidarity walkouts. From Europe to the Middle East to Asia to Australia, people saw their own fight for justice and equality in what we were trying to do.”

“The message is clear: Enough!”

“[A]lmost a year later, a jury in Minnesota stepped up and they found a police officer guilty of murdering George Floyd, with officers and even a police chief taking the stand to testify against misconduct of their colleagues.  I don’t know any good cop who likes a bad cop.”

But for many people, including many families here, such accountability is all too rare.  That’s why I promised as President I would do everything in my power to enact meaningful police reform that is real and lasting. That’s why I called on Congress to pass the George Floyd Justice in Policing Act, to send it to my desk.”

“This is a call to action based on a basic truth: Public trust, as any cop will tell you, is the foundation of public safety.  If they’re not trusted, the population doesn’t contribute, doesn’t cooperate.”

“For the wheels of justice are propelled by the confidence that people have in their system of justice.  Without that confidence, crimes would go unreported.  Witness[es] fear to come forward; cases go unsolved; victims suffer in isolation while perpetrators remain free; and ironically, police are put in greater — greater danger; justice goes undelivered.”

“Without public trust, law enforcement can’t do its job of serving and protecting all of our communities.  But as we’ve seen all too often, public trust is frayed and broken, and that undermines public safety.”

“The families here today and across the country have had to ask why this nation — why so many Black Americans wake up knowing they could lose their life in the course of just living their life today — simply jogging, shopping, sleeping at home.  Whether they made headlines or not, lost souls gone too soon.”

“Members of Congress, including many here today . . . spent countless hours on the George Floyd Justice in Policing Act to find a better answer to that question. The House passed a strong bill.  It failed in the Senate where our Republican colleagues opposed any meaningful reform.”

“So we got to work on this executive order, which is grounded in key elements of the Justice in Policing Act and reflects inputs of a broad coalition represented here today. Families courageously shared their perspectives on what happened to their loved ones and what we could do to make sure it doesn’t happen to somebody else. Civil rights groups and their leaders of every generation who have given their heart and soul to this work provided critical insights and perspectives. The executive order also benefits from the valuable inputs of law enforcement who put their . . . lives on the line every single day to serve.”

“Here today, I want to especially thank the International Association of Chiefs of Police, the Fraternal Order of Police, as well as the National Organization of Black Law Enforcement Executives, the Federal Law Enforcement [Officers] Association, the Police Executive Research Forum, Major City Chiefs Association, and others who . . . stepped up and endorsed what we’re talking about today.”

“This executive order is going to deliver the most significant police reform in decades.  It applies directly, under law, to only 100,000 federal law enforcement officers — all the federal law enforcement officers.  And though federal incentives and best practices they’re attached to, we expect the order to have significant impact on state and local law enforcement agencies as well.”

“Here are the key parts:

“First, the executive order promotes accountability.  It creates a new national law enforcement accountability database to track records of misconduct so that an officer can’t hide the misconduct. It strengthens the pattern-and-practice investigations to address  systemic misconduct in some departments.  It mandates all federal agents wear and activate body cameras while on patrol.”

Second, the executive order raises standards, bans chokeholds, restricts no-knock warrants, tightens use-of-force policies to emphasize de-escalation and the duty to intervene to stop another officer from using excessive force. . . .”

Third, “the executive order modernizes policing.  It calls for a fresh approach to recruit, train, promote, and retain law enforcement that [is] tied to advancing public safety and public trust.
Right now, we don’t systematically collect data, for instance, on instances of police use of force.  This executive order is going to improve that data collection.”

Other Comments on the Order

As an executive order, it is not as comprehensive as a federal statute on these subjects, but because of Republican opposition Congress has refused to adopt such legislation this term. Moreover, as a federal order it cannot and does not compel state and local law enforcement agencies to adopt the policies set forth in the order; instead, as previously noted, it provides incentives for state and local agencies to do so.

“Larry Cosme, president of the Federal Law Enforcement Officers Association, said the order will have the most direct impact on the nation’s 100,000 federal officers, given that Biden’s ability to act unilaterally on policies for local and state police is limited. But Cosme [also] said the document could serve as a ‘national role model for all law enforcement around the country. We’ve engaged in hundreds of hours of discussions, and this can inspire people in the state and local departments to say: ‘This is what we need to do.’”

“Cosme emphasized that the order will include sections aimed at providing more support for officer wellness, including mental health, and officer recruitment and retention at a time when many departments are facing low morale and staffing shortages. ‘No officer wants anyone, not the suspect or the victim, to lose their life. We want the maximum safety for everyone in the country.’”

The order also drew support from other leaders of major policing organizations.

Jim Pasco, the executive director of the Fraternal Order of Police, said he thought the order’s revised use-of-force language would “bring more clarity and better guidance to officers” but without causing them to become so risk-averse that they fail to protect themselves and others when necessary. “It’s not a question of stricter or less strict,” Mr. Pasco said. “It’s a question of better framed. And a better-constructed definition of the use of force.” He added: “It’s not a sea change.”

Chuck Wexler, executive director of the Police Executive Research Forum, “It’s the nature of American policing. We don’t have a national police force, no national standards and no way of making every department comply with national standards. What this does is, when you don’t have Congress acting on a police bill, you have the president of the United States setting the tone: ‘Here’s what I expect of federal agencies and, therefore, I think state and local will follow.’”

Another supporter of the order, the NAACP by its President, Derrick Johnson, said, ‘We know full well that an executive order cannot address America’s policing crisis the same way Congress has the ability to, but we’ve got to do everything we can. There’s no better way to honor George Floyd’s legacy than for President Biden to take action by signing a police reform executive order.’”

Marc Morial, a former New Orleans mayor who is president and chief executive of the National Urban League, called the order ‘a very important step. We recognize that this process is not going to be easy. This is a long fight. I’m going to accept this first important step by the president because it’s a powerful statement, and it reflects what he can do with his own executive power.’”

The American Civil Liberties Union by Udi Ofer, its deputy national political director, offered cautious support for the executive order, saying much would depend on how it was carried out. “Correct implementation of this standard will be pivotal for its success,” he said. “We have seen jurisdictions with strong standards where officers still resort to the use of deadly force, so just having these words on paper will not be enough. The entire culture and mentality needs to change to bring these words to life, and to save lives.”

Christy E. Lopez, a Georgetown University Law professor and expert on policing issues, [3] praised the order, but noted, that the order is not self-executing, but “will take an enormous amount of effort and focus, particularly by Attorney General Merrick Garland and the Justice Department, but by other federal agencies as well, to ensure that the mandated guidance, studies, grants, task forces and databases are not only created but remain faithful to the goals of the executive order. And that is going to require advocates to keep persistent pressure on the government.” This order “is not legislation. This means, for example, that those of us who support modifying qualified immunity for officials accused of violating a plaintiff’s rights, or creating direct municipal liability for police misconduct, must still push Congress to pass the necessary laws. An even bigger limitation is that while the executive branch can provide state and local governments support and incentives to reduce the harms of policing, it cannot direct them to do so. The bulk of that work must continue to be done in cities, counties and states across the country.”

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[1] White House, Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety (May 25, 2022);

[2] White House, Remarks by President Biden and Vice President Harris at Signing of Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety (May 25, 2022); Biden Set to Issue Policing Order on Anniversary of George Floyd Killing, N.Y. Times (May 24, 2022); Biden signs executive order on policing on the anniversary of George Floyd’s death, Wash. Post (May 25, 2022); Biden signs police reform executive order on anniversary of George Floyd’s murder, Guardian (May 26, 2022); Lopez, Biden’s order is a good start on police reform, But Congress must also act, Wash. Post (May 27, 2022)

[3] See Importance of Pending Federal Criminal Case Over Killing of George Floyd, dwkcommentaries.com (Jan. 24, 2022).

The Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006. [1] This provision extended for 25 years a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Department of Justice for any changes in their election laws.[2]

Before we discuss that argument, we will look at the Voting Rights Act of 2006.[3]

Its stated Purpose in Section 2(a) was “to ensure that the right of all citizens to vote, including the right to register to vote and cast meaningful votes, is preserved and protected as guaranteed by the Constitution.” The last reference, of course, included the Constitution’s Fifteenth Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

The 2006 statute did that by reauthorizing and extending for 25 years (until 2032) the following essential provisions of the original Voting Rights Act of 1965:

  • Section 2 forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result.
  • Section 5 (the focus of the current case before the Supreme Court) only applies to certain “covered jurisdictions” and “prescribes remedies . . . which go into effect without any need for prior adjudication.”  Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the [U.S.] Attorney General.”
  • Such approval or preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.”
  • The “covered jurisdictions” subject to section 5 were identified in section 4(b), as subsequently modified, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.”
  • Upon satisfying certain criteria a state or other jurisdiction could obtain “bailout” from section 5 or be subject to “bail-in” to such coverage.

The Voting Rights Act of 2006 was overwhelmingly adopted by the Congress: 98 to 0 in the Senate and 390 to 33 (with 9 not voting) in the House. In doing so, the Congress acted on the basis of a legislative record over 15,000 pages in length, including statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.[4]

Given this extensive record before Congress, Section 2(b) of the Voting Rights Act of 2006 contains the following extensive congressional Findings:

  • “(1) Significant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.
  • “(2) However, vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process.
  • “(3) The continued evidence of racially polarized voting in each of the jurisdictions covered by the expiring provisions of the Voting Rights Act of 1965 demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the Voting Rights Act of 1965.
  • “(4) Evidence of continued discrimination includes—
  • “(A) the hundreds of objections interposed, requests for more information submitted followed by voting changes withdrawn from consideration by jurisdictions covered by the Voting Rights Act of 1965, and section 5 enforcement actions undertaken by the Department of Justice in covered jurisdictions since 1982 that prevented election practices,such as annexation, at-large voting, and the use of multimember districts, from being enacted to dilute minority voting strength;
  • “ (B) the number of requests for declaratory judgments denied by the United States District Court for the District of Columbia;
  • “(C) the continued filing of section 2 cases that originated in covered jurisdictions; and
  • “(D) the litigation pursued by the Department of Justice since 1982 to enforce sections 4(e), 4(f)(4), and 203 of such Act to ensure that all language minority citizens have full access to the political process.
  • “(5) The evidence clearly shows the continued need for Federal oversight in jurisdictions covered by the Voting Rights Act of 1965 since 1982, as demonstrated in the counties certified by the Attorney General for Federal examiner and observer coverage and the tens of thousands of Federal observers that have been dispatched to observe elections in covered jurisdictions.
  • “(6) The effectiveness of the Voting Rights Act of 1965 has been significantly weakened by the United States Supreme Court decisions in Reno v. Bossier Parish II and Georgia v. Ashcroft, which have misconstrued Congress’ original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act.
  • “(7) Despite the progress made by minorities under the Voting Rights Act of 1965, the evidence before Congress reveals that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.
  • “(8) Present day discrimination experienced by racial and language minority voters is contained in evidence, including the objections interposed by the Department of Justice in covered jurisdictions; the section 2 litigation filed to prevent dilutive techniques from adversely affecting minority voters; the enforcement actions filed to protect language minorities; and the tens of thousands of Federal observers dispatched to monitor polls in jurisdictions covered by the Voting Rights Act of 1965.
  • “(9) The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.”

PresBush signign VRAOn July 27, 2006, President George W. Bush signed this statute in a ceremony on the South Lawn of the White House (as shown in the photo to the left). Attending the event were Attorney General Alberto Gonzalez and other members of the Cabinet, the leaders of the United States Senate and House of Representatives, representatives of the Fannie Lou Hamer family,  representatives of the Rosa and Raymond Parks Institute, members of the Martin Luther King, Jr. family and  civil rights leaders, including Dr. Dorothy Height, Julian Bond (the Chairman of the NAACP), Bruce Gordon, Reverend Lowery, Marc Morial, Juanita Abernathy, Jesse Jackson, Al Sharpton and Dr. Benjamin and Frances Hooks.

On that occasion President Bush said, “By reauthorizing this act, Congress has reaffirmed its belief that all men are created equal; its belief that the new founding started by the signing of the [Voting Rights Act of 1965] . . .  by President Johnson is worthy of our great nation to continue.”

That original statute, President Bush continued, “rose from the courage shown on a Selma bridge one Sunday afternoon in March of 1965 . . . [when] African Americans . . .  marched across the Edmund Pettus Bridge in a protest intended to highlight the unfair practices that kept them off the voter rolls.The brutal response [to the marchers that day] . . . stung the conscience of a slumbering America. . . . One week after Selma, President Lyndon Johnson took to the airwaves to announce that he planned to submit legislation that would bring African Americans into the civic life of our nation. Five months after Selma, he signed the Voting Rights Act [of 1965] into law in the Rotunda of our nation’s capitol.”

President Bush recognized that in the “four decades since the Voting Rights Act was first passed, we’ve made progress toward equality, yet the work for a more perfect union is never ending.” By signing the Voting rights Act of 2006, President Bush concluded, we “renew a bill that helped bring a community on the margins into the life of American democracy. My administration will vigorously enforce the provisions of this law, and we will defend it in court.”

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[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. 109-246, 120 Stat. 577 (2006).

[2] The states now subject to section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

[3]  A prior post discussed the original Voting Rights Act of 1965. Other posts will discuss two other predicates for the recent Supreme Court argument: the previous Supreme Court case regarding the 2006 statute (Northwest Austin Municipal Utility District No. One v. Holder) and the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit that is the subject of the that argument (Shelby County, Alabama v. Holder).

[4]  The 2006 Act also overruled two Supreme Court decisions interpreting the statute.