Executive orders:  Are Presidents Abusing Their Power?

By

Robert J. Fischer

President Barrack Obama was criticized for using executive orders to achieve his political goals.  Some Americans began calling him a dictator.  Donald Trump also made use of executive orders to keep campaign promises.  As President Joe Biden enters the third week of his presidency, he has already signed several executive orders designed to reverse orders that were signed by former President Donald Trump. 

What is an executive order?  How does the Executive order translate into law?  Does the extensive use of the order signal a dangerous move toward a dictatorship?

A Brief Background

To answer these questions it is important to understand where the executive order originated, as well as the intent in creating it.  Executive orders were established in Article II of the Constitution.  This article gives the President, and only the President, power to enforce the law, manage resources, and manage his/her staff.  More recently, the power of the President has been expanded to include Acts of Congress. A president may issue an executive order that applies to a law passed by Congress.   In other words, these orders, like laws or other legislation, must meet Constitutional scrutiny through Court review if and when challenged. 

Both former Presidents Obama and Trump saw executive orders challenged and reviewed by the Supreme Court. For example, President Obama’s order over inadequate enforcement of the Affordable Care Act, in particular the employer mandate clause, was challenged in federal court in 2014.  The case was put on hold until 2016 when President Trump superseded President Obama’s order.  Another example is President Trump’s executive order banning Muslims from seven countries from entering the United States, which was stayed by a federal court in 2017.  In 2018, the Supreme Court abated the lower court decision.

However, historically, most executive orders have dealt with waging war, responding to emergencies, and providing structure to legislation.  These orders are in effect until they are cancelled, revoked, expire, or are found unconstitutional or unlawful.  Also, a new president can modify, cancel or revoke an order by a previous president.

Historically, the first executive order was written by President George Washington in 1789.  He instructed his cabinet to report on the affairs of the United States from their area of responsibility as he prepared his State of the Union address.  Since 1789 all presidents have issued executive orders.  (The one exception was William Henry Harrison, who died within a month of taking office.)

While pundits have been quick to deplore the hundreds of executive orders issued by recent presidents, it is worth noting that no recent president has reached the numbers of executive orders issued by some well-known previous presidents. 

Harry Truman – 907

Theodore Roosevelt – 1,081

Calvin Coolidge – 1,203

Woodrow Wilson – 1,803

Franklin Roosevelt – 3,522

A few examples of executive orders of historical significance include Truman’s order to integrate the armed forces, Franklin Roosevelt’s gold hoarding orders, and the infamous 1942 Executive Order 9066 which led to the internment of Japanese-Americans during World War II.

Problems and Criticisms

Critics have long held that presidents abuse executive orders, using them to bypass Congress. John Hudak, a senior fellow at the Brookings Institute, says, “When your party’s in the White House, it’s the greatest thing on earth. When your party’s out, it’s undemocratic.  It’s basically Satan’s pen.”  In some recent cases, the courts have spoken against executive orders which appeared to bypass Congress.  In 1995, President Bill Clinton signed an executive order which prohibited the federal government to contract with companies which hired strike-breakers.  A federal court overturned the order citing a conflict with the National Labor Relations Act.   As noted earlier, the most recent controversies involved former presidents Obama and Trump.  President Obama was accused of exceeding his powers by changing provisions of the Affordable Care Act, in particular rules on the mandate concerning employers who do not provide health care coverage. 

Discussion

While some presidents have used executive orders to expedite their agenda, or in response to national emergencies, is the expanded use of executive orders a good way to govern?  It is beyond the scope of this article to evaluate the motives or needs behind the large number of executive orders issued by Franklin Roosevelt or the other presidents cited earlier.  However, it is instructive to know that each of these presidents was serving during a time of national emergency.  However, other presidents like Barrack Obama and Donald Trump used the executive order when Congress failed to pass legislation that would have furthered their political/social agenda. 

It is my opinion that the use of executive orders is not a good way to govern in non-emergency times.  Executive orders are NOT a replacement for legislated law.  Our founding fathers specifically put legislative matters in the hands of Congress.  The executive branch was designed to manage.  During non-emergency situations, our democratic system requires debate and compromise—not single-handed acts by the President. 

An executive order does not have the strength of legislative action, since it can be rescinded by Congress or a succeeding president.  The executive order actions taken by President Obama on immigration, health care, and the environment were rescinded under President Trump.  Now President Biden is rescinding President Trump’s orders.  For example, the move away from fossil fuels and to alternative energy sources has been hampered by a single change in administrations.  Such actions create an uncertainty in our national policy that “blows with the current political winds.”   

Conclusion

Is President Biden overusing executive orders?  Perhaps.  However, many of the changes made through executive order by President Trump needed immediate action from a more liberal point of view.  In addition, other problems such as the COVID-19 epidemic, global warming, and economic issues faced by the lower and middle class likely require immediate attention.  If we are indeed “fighting a war,” as President Biden has claims, than it is expedient to use executive orders to quickly move the agenda forward.  However, once the crisis has been averted, it would be better for President Biden, who has sold his experience of working across the aisle, to help shape legislation that is bipartisan.  Legislated initiatives are likely to last much longer than an executive order that can be revoked with the stroke of a pen, and are less likely to create instability and uncertainty.

Should Donald Trump be Impeached, Censured, or Banned from Office:  Is There a Good Option?

By

Robert J. Fischer

Introduction

I had considered taking a pass on this controversial question.  However, given the forty-five Republican Senators who voted to NOT proceed with Impeachment due to Constitutional issues, I decided to do some research.  Depending on which media outlet or social media being read, the opinions are varied.  There are those who believe that even though Donald Trump is no longer President, he can and should be held accountable for actions that are attributed to him in reference to the January 6, 2021, assault on the Capitol.  On the other hand, there are many (including the forty-five Republican Senators) who believe that since Donald Trump is no longer President, there is no need for Impeachment. 

Impeachment or Banned from Holding Office?

Given the bipartisan divide, as well as the continuing popularity of Donald Trump, Impeachment is likely to be a public “showcasing” of his alleged treasonous actions that will likely NOT result in a conviction.  Is this the best direction for a legislature that has several major national crises which they must tackle? 

There are other options which have been mentioned in the media.  Perhaps the most promising is invoking Section 3 of the 14^th Amendment.  Section 3 bars any federal or state office holder who has “engaged in insurrection or rebellion” from holding public office.  The language is clear, and on the surface appears to present an easy way to deal with the problem.  In addition, this approach might garner Republican support.  However, it is unlikely that most Trump supporters will support the idea.

This Section was part of the post-Civil War efforts to keep Confederates from holding federal and state offices.  Congress establishes that the penalty for insurrection, rebellion, or giving aid or comfort to the enemy is disqualification from holding public office.  The Amendment gives Congress the power to enforce the provisions of this Amendment. 

In an effort to clarify who has the right to determine culpability,  Congress passed the Klu Klux Klan Act of 1870, which established the provisions for enforcing Section 3.  The Act charged federal prosecutors with enforcing the provisions of the Section by bringing charges to remove the offender from office. The Act also made it a criminal offense for someone to knowingly seek office if in violation of the language in Section 3. 

Using Section 3 and the Klu Klux Klan Act could make it possible for the Justice Department to disqualify Donald Trump from running for office.  However, the charge against Donald Trump would allow him to present evidence in his behalf in a federal trial.

There are arguments that the 1860s and 70s legislation had a specific purpose, and that purpose does not apply to Donald Trump.  Therefore, the courts would need to settle the dispute.  This would require a review of “case law” which weighs in favor of granting prosecution under Section 3 to the judiciary, not Congress. 

As suggested by Daniel Hemel in his Washington Post piece of January 21, a safer approach would be for Congress to pass an updated Klu Klux Klan Act.  This act would specifically authorize the Department of Justice to bring legal action against a person who pursues public office in violation of Section 3. 

The advantage of Hemel’s approach is that the law does not specifically mention Donald Trump, but does subject him to a criminal trial should he decide to seek office at any point following passage of the legislation.

Censure

This does NOT preclude censure of Donald Trump. A censure is a public reprimand, and would likely include most if not all of the accusations made toward President Trump during the final months of his presidency.

The criticism of this approach is that a censure is not binding. It does not have any direct legal consequences for the censured party, other than public denouncement.  A censure is an alternative to taking more serious actions.

The censure is designed to  bring about reform of the accused and prevent them from repeating the conduct that led to the censure.  Possible grounds for censure of presidents may include some of the following:

• Refusal to accept appeals for decisions
• Ignoring proper protocol
• Disobeying laws and rules
• Ignoring the direction of the Legislature or Courts
• Denying constituents their proper constitutional rights
• Promoting insurrection

Andrew Jackson is the only President to have been successfully censured.  He was censured for his failure to turn over documents, as ordered by Congress, supporting his claims that the Bank of the United States was influenced by foreign governments.  There was also an unsuccessful attempt to censure James Polk, who some believed had started the Mexican/American War illegally.  In the past four years, there have been unsuccessful efforts to censure President Donald Trump over the Ukraine scandal. 

Summary/Conclusions

There are actually four options in considering what to do with Donald Trump’s actions associated with the January 6, 2021 attack on the Capitol.  The first is to do nothing.  That would not fare well with a large majority of Americans.  The second is Impeachment.  This option would not fare well with Trump followers, but would allow the accusations to have a thorough hearing.  However, it is unlikely that there would be enough votes to find Donald Trump guilty.   A third option is Censure.  However, this option is weak and would leave no assurance that Donald Trump would not be able to run for office in the future.  The fourth option is Section 3 of the 14^th Amendment.  This is the most time consuming option, which might also face legal challenges.  However, it is the option which would allow for an airing of the charges against Donald Trump and his ability to defend himself.  A verdict rendered by a judicial court would then be established.  Should Donald Trump be found guilty, he would be banned from office under the Klu Klux Klan Act or a new law, should Congress decided to update the 1870 law.

A Nation Divided:  The Need for Political Reform

By

Robert J. Fischer

In my last post, I discussed the frustrations that many Americans have with our two mainstream political parties, and politicians in general.  This post will discuss the American political party system, its advantages, its shortfalls, and the fears that our founding fathers had about a two party system. 

Two of the most important factors that allow democracy to work are the election process and compromise of ideas.  This past election may be an indication of just how important the voice of the people is in determining a general policy trend. The 2020 election was essentially about Donald Trump and his perceived agenda of “Make America Great Again,” versus Joe Biden’s platform of bringing civility and compromise back to government and America. 

 In round numbers, the turnout for the 2020 presidential election was approximately 150 million.  Of registered voters, 81,009,468 cast their ballots for Joe Biden and 74,111,419 cast ballots for President Donald Trump.  The numbers are record setting.  While numbers vary, there were approximately 160 million registered voters in 2020.  The turnout for the vote was almost 94%.  The percentage drops when the total number of persons eligible to vote is considered.  There are approximately 230 million persons eligible to vote, but only 160 million are registered.  Seventy million Americans were silent by not registering to vote. 

By a majority of 6,888,049, Americans voted for Joe Biden’s platform, including his promise of a civil presidency, as opposed to the harsh rhetoric of the Trump presidency (as well as other factors).

Despite the numbers, there are still approximately 5 million voters who apparently believe in former President Trump’s agenda.  The last post pondered this fact (Why Do Over 35 Million Americans Still Support President Trump?).  In summary, I voiced an opinion that there is much dissatisfaction among many voters.  Many working class voters perceive that the Democratic Party has forgotten about the working class America in favor of an agenda aimed at socialistic programs.  On the other hand, others see the Republican Party as being too involved with “big business” and big money. 

The question is, does the American two party system need reform and if so, how does the nation go about the task of reforming the parties?

Alternative Options to the Two Party Systems

The alternatives to a two party system are few for a democracy.  A one party system comes too close to a monarchy, since there is no choice of candidates that are not part of the official party. 

A three party system allows for three parties to vie for office.  It also encourages coalitions, which are often needed to have enough votes to move a legislative initiative forward. The limitation of this system is that often there is no majority winner, requiring runoff elections.  The United Kingdom, Canada, and Israel are examples of the three party systems.  The pitfalls of this system are clearly visible in Israel’s continuing battle over who will be Prime Minister. 

A multiple party system is another option.  There are numerous examples of multiple party systems.  The multiparty system is not common in presidential democracies.  However, it is very common in parliamentary systems.  The advantage of the multiparty system is that it generally allows for multiple points of view.  Countries like Argentina, Brazil, France, and Germany operate under multiparty systems.  Much of what is said regarding three party systems is also true of multiparty systems.  The major difference is a greater need for coalition building to garner enough votes to pass legislative initiatives.

The American Two Party System

While American politics is seen as a two party system, that view is not true.  There are many political parties.  However, the system has allowed for only the Republican and Democrat parties to dominate.  This two party dominance is a function of law, party rules, and customs. There have been a few successful third party movements– the Granger Movement (1860s -70s), the Progressive (Bull Moose) Party (1912), Ross Pierot’s Reform Party USA (1995 – present), the Libertarian Party (3^rd largest) (1971 – present), and to a lesser extent the Green Party (2001 – present), the Socialist Party of America (1901 – present), and others.

During the formative years, the Founding Fathers did not support partisan party politics.  Alexander Hamilton and James Madison feared the dangers of political factions.  George Washington did not have a political party affiliation.  Hamilton and Washington might be considered as aligned with the Federalist positions.  In his farewell address, Washington spoke against partisan politics, fearing the conflict of interests that would weaken the voice of the people and democracy. However, partisan issues would soon develop into the first two party system. One party was the Federalists, which supported a strong central government as outlined in the Constitution, centralized banking, and close ties with England.  The second party was the Democratic-Republican Party (Jeffersonian Republicans) which was opposed to a strong central government and was in favor of a loose republic of independent states. 

While there have always been at least two parties, the beliefs and makeup of parties has changed as a result of social interests, and cultural, personal, and financial gain. Today the two parties are called Democrat and Republican.  These two parties have dominated the federal government for decades.  Today there are only two independent senators, and two non-voting- representatives in the House.  One is an independent the other is from the Progressive Party.

The Need for Reform

Many Americans believe that the government and politics have been hijacked by extremists on both sides of the political spectrum.
These Americans feel forgotten due to the fact that parties are not focusing on health care, climate change, and security for the working class.  Other working class Americans who are forced to choose between food, prescription drugs, or rent often see government as not responding to their economic plight.

How do we fix our politics?  Previous posts have voiced a belief that Americans need to get involved.  A major study by the Pew Research Center, found that two thirds of Americans did not get involved in politics.  Those who did get involved were ideologues. Thus, these are the people who control the views of the political parties.

Citizen’s Responsibility 

Citizens need to stay informed about political issues at the local, state, federal and international level.  That takes a little work and some time.  However, a few minutes devoted to something like NPRs News Brief in the morning and CNN or FOX News in the evening can provide an overview of various issues.  Citizens should listen to various opinions, sort through the information, and develop a position.  Then they should let their legislators know what they think, and suggest solutions to the problems.

Government’s Responsibility

On the legislative side, the government needs to assure that everyone who wants to be heard is heard.  For example, Independent voters should not be excluded from party primaries.  Gerrymandering must be eliminated.  Legislatures need to support independent redistricting commissions in lieu of party controlled redistricting. (See an earlier post, Why Should Something be Done to Eliminate Gerrymandering?)  Laws need to be enacted to hold political advertisements to the same standards that we exert over businesses through the Truth in Advertising laws. Individuals should be held responsible for their false claims through the enforcement of existing laws regarding slander and liable. (See an earlier post, The First Amendment:  What Should be the Limits of Freedom of Speech?).   Perhaps legislation making these false statements a criminal offense might reduce their use in social media platforms.  Legislators need to work toward having the Supreme Court overturn Citizens United.  Corporations are not “people.” They should not have an oversized influence on elections through big money (See an earlier post Citizens United and the Right to Vote).

During the 2020 Presidential Election, the need for caution for health reasons was paramount due to Covid-19.  The increased availability of mail in ballots increased voter turnout.  Legislators need to continue to find ways to encourage voter turnout rather than discourage it. 

Finally, perhaps the most important variable is to make sure that the candidates who are chosen to run for public office are committed to the position they are seeking, and not to some party platform.  Elected officials need to recognize that in order to move forward, they need to work with those with whom they do not agree.  Compromise is NOT a dirty word.  It has only been through compromise that America has been able to move forward.  Gridlock and hyper-partisanship have no place in a democracy!  There are movements to reduce the gridlock.  For example, consider Unite America.  This philanthropic organization is composed of Republicans, Democrats, independents, and others who are interested in supporting political candidates who put their constituents ahead of party politics. 

America has, and can again, reform its political parties!

The Donald Trump Cult:  Why do over 35 Million American Still Support President Trump?

By

Robert J. Fischer*

Introduction

The majority of Americans were appalled by the events of January 6, 2021.  Recent polls indicate that 54% of Americans hold President Trump responsible for the violence during the takeover of the Capitol (The Hill/Harris poll, January 7, 2021).  Likewise, they also believe he should be impeached and banned from holding public office for life.  Not surprisingly most democrats in Congress support impeachment.  But perhaps somewhat surprising is the number of Republican legislators who also support censure, impeachment, or barring President Trump from public office.

On the other hand the Republican National Committee (RNC), many state party leaders, and up to 35 million voters still believe that the election was stolen from President Trump.  Some serving on the RNC, led by Trump supporter and chairperson Rona Romney McDaniel,  have already voiced support for a 2024 Trump Presidential race.  Why?  It is a question being asked by many Americans.  While I’m not a psychologist, there are some clues.

The makeup of the mob that descended on the Capitol on January 6 is not very helpful.  People from all walks of life were present and involved:  police officers, former military personnel, physical therapists, retired firefighters, factory workers, college students, and many others.  Was there any common connection?  The answer is yes!  All of these people were likely influenced by a constant message in the media that the election was stolen by liberal, socialist elites.  “Stop the Steal” posts on various media platforms swayed these people toward a belief that there was credible evidence that the election was stolen from President Trump.

The Influence of social media on shaping a believer’s views

 In my two past articles, I focused on the role that media has played in furthering this false premise. This article specifically focuses on the factors that influence the beliefs of the loyal Trump followers.  For example, The New York Times recently published an opinion article that features Dominick McGee, a young college student and army veteran who became convinced, via Facebook posts, that the election was stolen (Thompson, Stuart A., and Charlie Warzel, “How Facebook Incubated the Insurrection,” The New York Times, January 14, 2021), and became the founder of the media platform, “Win the Win.” 

Media platforms such as McGee’s “Win the Win” and Trump’s own Facebook presence cater to like-minded individuals.  Reposts with refinement follow, enhancing what is often false or misleading information.  An organizer for an another Facebook group said, “This is not a group for socializing. I don’t care if you’re a 5G person, you come from QAnon, you’re a mad super believer in all this stuff that’s happening, or you’re just new to the group, you’ve just had your eyes opened, you have to understand, we’re a mixed bag.”  McGee says that his followers support his beliefs.  “I’ve been feeling this way for years.  That’s why it’s so easy for me to make posts, because I’ve been suppressing this stuff forever.”

Dominick McGee started “Win the Win” with the goal to overturn the 2020 election results.  Within weeks he had tens of thousands of followers, and before being shut down by Facebook, the group had over 61,000 members.  While McGee’s group has been deleted from Facebook, he has returned using another group name.  This group is attracting radically thinking people.  A few days following McGee’s return from the Capitol, a chat room discussion included claims by a woman who says she runs a multi-state group interested in far-right tactics.  She was recruiting members and told Mr. McGee that he could join if he passed a thorough interview and background check.  She is quoted as saying, “We’re ready for anything. We have tons of gas masks. Tons of bullets. Tons of magazines. Tons of ARs. Anybody who’s interested, hit me up. Hit me up on Facebook.” (Thompson and Warzel)

Why do people believe what they believe?

The factors that lead us to believe what we believe are complex. We are influenced by a combination of genetics, family, friends, media, life experiences, and many other circumstances and events.  Our beliefs tend to be firm, but perhaps not accurate.  We tend to seek out that which confirms our “world view.” We are supported in this effort by what is called the echo chamber.  In other words, people seek out and hear only opinions and beliefs that support their own.  Alternative ideas are not considered.  In addition, media platforms, through what is called the filter bubble, provide support for existing beliefs.  In other words, algorithms personalize the information that the media user sees.  Finally, there is a phenomenon known as confirmation bias,where groups and persons seek out information that supports their beliefs and ignore other information that goes against their views.

Many of us think that we are critical in our analysis of information (in other words critical thinkers).  If a person fails to consider or distrust information that does not agree with their view, they are NOT a critical thinker.  Getting information from only supportive sources is not critical thinking.  This is particularly true if sources are saying distrust science, government, the media, and academia.

The Trump phenomenon and his supporters

What do Trump supporters believe? The best way to determine the beliefs and values of Trump supporters is to take a close look at Donald Trump.  What does Trump say that he stands for?  The list is long, and often not consistent.  The following are a few of his stated or implied beliefs:

• Ethnic groups are a lesser lot
• Deportation of undocumented immigrants is good and follows the law
• Barring Muslims from entering the United States protects us from terrorists
• Christianity must be reinstated  as the founding principle of this great nation
• Strongmen/dictators get the job done
• Acceptable civility isn’t a prerequisite for public office.  The First Amendment applies to anything said or published!
• There is a need to build a wall to keep Hispanic people from taking our jobs
• There are many bad trade agreements that lead to de-industrialization and the loss of American jobs
• Drug prices are too high, government can negotiate better deals
• The legendary military/industrial complex is a corruption of good business and an insult to working Americans.  Think the $435 hammer or the $600 toilet seat (Mathershed, Airon, “Does Media Coverage of Procurement Scandals Lead to Procurement Reform?” Public Contract Law Journal, Summer 2012)

These statements reflect a couple of broad beliefs held by various constituent groups.  The first three statements supported by the President’s rhetoric, imply racism.  To paraphrase comedian John Oliver, either Donald Trump is a racist or he is pretending to be one.  His support by groups such as the Poor Boys and other neo Nazi groups demonstrates this appeal.  On the other hand, a larger number of his supporters are influenced by his economic views.  The trade issue has been a divisional problem since the NAFTA agreements drafted during the Clinton administration.  While many main stream Republicans and Democrats believe that free trade is good for America, working class Americans are often left behind when corporations move business to Mexico or China.  Many working class Americans believe Donald Trump when he talks about bringing jobs back to the United States.  While the past four years haven’t shown this to be true, Americans still believe Trump’s promises.  He appears to be on the working person’s side, as compared to career politicians who are often viewed by working class people as rich and as tools of corporate American.

Conclusions

The reason that approximately 35 million Americans still believe in Donald Trump may be because of commonly held fear– that the America that they know is being destroyed.  The economy, while looking good on Wall Street, has left many Americans jobless or working at lesser paying jobs.  The changing demographics means that white Americans will soon no longer be the majority in their America.  The combination of Hispanics, Blacks, Asians, and others will make up the majority.  To further complicate this perception that white America is losing its status is the view that immigrants are taking away jobs and are often living off of the tax dollars that hard working Americans pay.

Donald Trump uses these fears to gain support.  Supporters view him as outspoken, speaking in a language that the working class understands, and a believer in the America that they don’t want to see change.  Trump followers often view Democrats as abandoning working class values for liberal idealist social issues, and view main stream Republicans as the rich elite who do not share working class values.

*Supporting materials on media literacy provided by Jenni Levora

Other material from Frank, Thomas, “Millions of ordinary Americans support Donald Trump. Here’s Why,” The Guardian, March 7, 2016.

Evaluating What You Read:  Media Literacy

By

Robert J. Fischer

“BOMBSHELL:  IT Expert And Global Defense Contractor Testifies In Italian Court That He And Others Rigged Machines To Switch Votes to Biden In US Election,” by A. M. Smith.  This is an actual post on Twitter from a site called en-Volve.  Is the statement true, false, or a combination of truth and falsehoods?  How do you know what to believe?  If it is true, then it supports the contention that the 2020 election was stolen from President Trump.  If it is false, then those who believe in the stolen election are being misled.

The first thing to note is the site enVolve.  Is it even a legitimate media outlet? A quick inquiry on the internet indicates that it is a verifiable site.  However, En-volve.com has this disclaimer on its “Website Terms of Use” page:

“The information presented on or through the Website is made available solely for general information and entertainment purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.”

Furthermore, the site is registered through 1&1 Internet, a company that hides the identity and location of the owner of the website!

Evaluating Information

The consumer can spot fake news using the following suggestions:

• Read past the headline
• Check what news outlet published it
• Check the publish date and time
• Who is the author?
• Look at what links and sources are used
• Beware of confirmation bias (see the explanation below)
• Search other news outlets to see if they are reporting the same news
• Think before you share

.  Bias:  “Never trust a brain, especially your own . . .” This is an important observation made during a Ted Talk (http: theoatmeal.com/comics/believe.clean). The statement is based on metacognition—thinking about your own thinking.  All of us have a bias.  However, many fail to recognize that bias and the impact it has on filtering information that we receive and disseminate.  We all need to examine our assumptions and any inclination to fall for logistic fallacies.  We need to be critical thinkers. If we buy into everything that supports our inner bias, we are not using critical thinking

A good rule for evaluating information is simple:  If it is posted on social media by a friend, check to see where they got their information.  Often these posts are reposts of information that has been written by some person unknown to you.  Even if it supports your views, the information may not be true, so you are wise to disregard it and NOT repost.  A second rule is:  If the information is not posted by a known media source, disregard it, or at least spend a few minutes evaluating it, as exemplified by the above evaluation of the en-Volve post.  A good source for evaluation of sites that you don’t recognize is FactCheck.org Misinformation Directory. 

If the information is posted on known media sites, remember that many of these outlets have a bias.  The following is a general assessment of some of these outlets. 

Liberal leaning bias: Daily Kos, New Republic, BuzzFeed, Mother Jones, MSNBC, Vanity Fair, Daily Beast, Slate, Vox, Atlantic,

Conservative leaning bias: Fox News, One America News (OAN), Drudge Report, Federalist, The Washington Times, Examiner, National Review, Newsmax, The Blaze, New York Post

Mainstream with minimal partisanship bias: Reuters, AP, Bloomberg, NBC, ABC, CBS, NPR, BBC, PBS, Time, Aljazeera

Slightly left: Axios, Washington Post, The Guardian, Politico, The New York Times

Slightly right: Wall Street Journal, The Hill

Although some sources lean left or right, they may still present valuable and factual information. For example, Mother Jones is left-leaning; the Wall Street Journal and the Economist are right-leaning.  They are still credible news sources, but they likely present information from a certain perspective.  It is a good idea to consume information from sources with different points of view as long as the information presented is factual. 

It is also important to know if you are consuming news or editorial/opinion.  News is informative while editorial/opinion articles are designed to influence how you think. Hannity presents opinions, as does Rachel Maddow.  You are getting their opinions, not unfiltered news. 

It is equally important to remember that there is “good” news, “bad” news, and “fake news.”  Good news presents the facts and allows the consumer to make their own conclusions.  Good news is presented by organizations such as ABC, Reuters, NPR, Wall Street Journal. Bad news often contains errors and/or intentional bias, and the intent to sway the consumer to reach a certain opinion. Organizations such as the Daily Kos, Buzz Feed, Fox News, New Republic, One America News, and Drudge Report fall into this category. Fake news is made up—in other words, a false story or a LIE!  And as Adolf Hitler said, “Make the lie big, make it simple, keep saying it, and eventually they will believe it.” There is no debating that these sources are selling a particular idea with the hope that the consumer will accept the information as fact. This news is blatant propaganda. Sources which peddle propaganda are represented by The Blaze, Newsmax, Daily Caller, U. S. Uncut, and Occupy Democrats.  Beware of their tactics.  Some of these tactics are:

• Name-calling:  commie, pig, terrorist, fascist, socialist
• Glittery Generalities:  making the consumer believe that the presenter shares the consumer’s beliefs
• Euphemisms:  presenting ideas that often soften the message (i.e., civilian casualties are referred to as collateral damage, a rioter is referenced as a veteran and patriot)
• Transfer:  use of respected symbols to stir emotions (i.e., the Bible or cross)
• Testimonials:  can be good or bad  (e,g., a bad testimonial– when a person’s testimonial comes from someone who is not qualified to make a judgement)
• Band Wagon:  everyone is on board, follow the crowd
• Plain Folk: the ideas presented are those “of the people” (i.e., MAGA hats)
• Flag-waving: are you loyal?
• Black-white fallacy:  the fallacy is that there are only two choices when there are actually shades of gray
• Ad hominem:  straying from the argument to attack the person
• Manufactured outrage

  There is one more category that needs to be considered– satire.  Satire should not be considered factual news, although it is most often based on actual news events.  Forums like The Daily Show, Saturday Night Live’s “Weekend Update, or the Onion are meant to humorously analyze news stories or poke fun.  Unfortunately, there are those who will not separate the humor from reality.

Legal limits on false information

Evaluation of sources cannot be overemphasized!  Information that shapes opinions must be factual.  As noted in my last post, consumer information is subject to the Fair Reporting Act, and in general, publications and statements that are false are subject to civil suit for libel or slander.  Good decisions cannot be made when the information is not accurate. 

In the past week, Twitter, Facebook, Snapchat and YouTube banned President Trump from posting on their sites.  Google and Apple have removed Parler from their app store. Amazon has removed Parler from its platform.  These organizations have come to realize the damage that “alternative facts” have had on opinions.  But these measures are coming too late.  Even before the Trump era of “alternative facts,” fact-bending news organizations were disseminating information that distorted reality and manufactured outrage. The trend continues even as the events of January 6, 2021, were viewed live on national television.  For example, Newsmax downplayed the uprising as an antifa organized activity! 

In part, President Trump won the 2016 election by using media that suffered from poor control.  Discussions on social platforms were often unreasonable and hateful.  And when Facebook started monitoring its users, many turned to Parler because of its lax attention to the accuracy of posts.  Through his use of Twitter with over eighty million followers, Trump has been able to build a “cult” following that believes the “alternative facts” that he presents, and accepts his conspiracy theories.  It is interesting to note that a Wall Street Journal/NBC News poll found that a majority of Republicans said they were more loyal to Trump than to the Republican Party. (Quoted from Giovanni Russonello, “On Politics,” The New York Times, January 11, 2021) Why do so many Republicans continue to believe in Donald Trump? This unwavering faith in Donald Trump is understandable when analyzed as a process in thinking, influenced by false information and a failure of the consumers to critically analyze what they are consuming. 

Summary

Major social platforms could ban various users, or at a minimum, continue to tag posts as false or misleading.  If this occurs, users may come to realize that their posts are opinions and not necessarily factual.  This country can heal as it has many times before, if and when people are presented with solid and factual information. Informed users can make good decisions if they take the time to evaluate their sources.. 

In summary, as citizens and leaders, our duty is the preservation of peace and freedom.  As President Kennedy had planned to say in his speech in Austin, Texas on the evening of November 22, 1963, “So let us not be petty when our cause is so great.  Let us not quarrel amongst ourselves when our Nation’s future is at stake.”

The First Amendment:  What should be the Limits of Freedom of Speech?

By

Robert J. Fischer

January 6, 2021 was certainly a day that will be remembered for decades.  The President addressed followers (that he had previously encouraged to descend on Washington, D. C.) to march on the Capitol while Congress was in the process of certifying the 2020 election returns.  The takeover of the Capitol, destruction of property, and the death of 6 people resulted in a backlash.  The Republican Party is now split in two, with traditional Republicans attempting to salvage the party, and MAGA supporting the President’s fraudulent claims that the election was stolen.

How did the nation get to this point?  The answer is complex, but the central answer lies in the President’s false claims about the election, as well as many other issues critical to the operation of a democracy.  These claims were widely disseminated through the media.  Twitter, Facebook, Parler, and other social media posts allowed for all kinds of information—true, false or partially true—to be posted as though they were facts.  In addition, blogs and media publications, such as American Thinker. Newsmax, and the Daily Caller, make for a staggering amount of information that is available!  Most consumers do not have the time or inclination to attempt reading op eds, but instead, they tend to view information that supports their own beliefs.  There is little interest in sorting through the various claims to find the facts.  Truth has become whatever is published in your favorite source of information.  The “halo effect” (the belief in that which surrounds you) is also enhanced by social media’s algorithm profiling of users. These algorithms enable these media giants to send out information that corresponds with the interests and beliefs of the reader.  These practices only tend to reinforce the existing views of any given reader.

Reading posts on social media by longtime friends, former students, and associates has reinforced my belief that the “truth” is not always associated with facts. A recent article in the American Thinker is well written and presents tangible material; however, there are also many unproven assumptions which support a very conservative narrative.   Is it ethical for someone to mislead consumers of political and social information?  For most Americans, the First Amendment, which includes Freedom of Speech and Press, is critical for the American way of life.  We are free to express our opinions without fear of reprisal from our government.  Opposing opinions are allowed, creating an opportunity for discussion and debate.  The discussion and debate can possibly lead to compromise of ideas.  This is one of the major foundations of our success as a democracy. 

Yet in today’s twenty-four hour news cycle and instant access to information, freedom of speech and the press are likely contributing to much of the division among American citizens.  Is there a limit to freedom of speech?  Many years ago the Supreme Court concluded that there is a limit.  For example, you may yell, “Fire, Fire!” if you are in the woods by yourself, but it is not allowed if you are at a concert.  Words that incite imminent lawless action (revolt or riot) are not protected by the First Amendment (Schenck v. United States, 1919; Brandenburg v. Ohio, 1969).  

In addition, stated opinions may also result in being censored by publications or ostracism by others.  Congress has also weighed in with laws that have made it illegal to mislead customers about price, quality and value of products.  The laws allow the Federal Trade Commission to evaluate whether commercial ads are truthful.  (Truth in Advertising Act, 2014)  Unfortunately the current law does not extend to political ads.

Should the freedom provided by the First Amendment include making false or misleading statements? For example, a post on Twitter attributed to A. M. Smith, claims that an IT expert has testified in Italian court that the voter machines used in the American 2020 election were rigged to switch votes to Biden.   For decades, speech and the written word have been subject to civil suits if they are false (either libel or slander).  Merchants have been held accountable for false advertising by the Truth in Advertising legislation. Shouldn’t false, misleading statements be subject to criminal prosecution?   It is time that our legal remedies– and perhaps new laws– are applied to the publication of statements on social media!

Forums such as Facebook and Twitter have recently begun to more closely monitor content published on their platforms.  Google and Apple just blocked the app for Parler, which has been an alternative “free speech” site replacing Facebook and Twitter due to what many believe is censorship.  Amazon, which hosted Parler, has now terminated their relationship. Critics believe that these corporate giants are violating the rights granted through the First Amendment, however, as stated earlier, the First Amendment only protects the right of free speech from government censorship.  In addition, if the information is not factually based, the forum should have the right to refuse publication. The person who eventually makes the statement should be held accountable for their false statements. 

It is my opinion that while there should always be freedom to express views and ideas, these views and ideas should be based on factual information, not on lies and conjecture. There are NO “alternative facts!”  There is only one truth.

 How America handles this new problem of determining the limits of freedom of speech (last considered by the Supreme Court in 1968) is critical to healing a divided nation created by conflict of information.  Finally, it is essential that citizen consumers know how to evaluate the information that they are reading.  What are good sources of factual material?  Is the media source liberal or conservative in nature?  Who is the editor?  Where is the money source?  Does the author (or website) have possible ulterior motives for publishing their point of view? The next article will focus on these questions.

American Democracy: Are We Losing It?

The Failure of Americans to Understand Our History and Basic Political Science

By Robert J. Fischer

When the press called the presidential election in favor of Joe Biden, followed by the Electoral College declaring him President, I was not surprised that President Donald Trump failed to acknowledge Biden’s victory.  That’s just part of his character!  However, I was disappointed in Republican law makers and Trump voters who failed to acknowledge the results, and who questioned the process.  Why? 

As an historian and former school board president, I have lamented the decline in  history classes in our school curricula, as well as the similar decline in the teaching of civics.  Our founding fathers believed that the most important thing in keeping our government by the people was an educated public.  Why would they believe that?  As Thomas Jefferson wrote to John Adams, he was afraid that the memories of all that had been discussed and fought for would be forgotten unless there was someone to tell the story.  An understanding of the history of what transpired prior to 1776, and the aftermath of the Declaration of Independence, is essential to keeping our democracy.  We need to know who our founding fathers were, what they stood for, and what they died for.  It is essential that we know and appreciate the workings of the government that they created. If we don’t understand the democracy that they created, those whom we entrust with governing may trample on the rights of the people and harm the democracy that they fought so hard to establish.

The failure of millions of Americans to understand basic civics and the underpinnings of our democracy have led America to a point where some do not trust the process.  Even though the majority of those serving the people have insured that the election process was fair, too many still doubt!

The root causes of this phenomenon are several, including a feeling of abandonment by many main stream Americans.  But perhaps more important is the failure of our education system to provide the necessary information for all Americans to understand how our government by the people truly works.  Through an understanding of the operation of government, it may be possible to right the wrongs that currently exist inherent in government.

While our founding fathers established a representative democratic republic, they understood that to truly have a government of the people, the people needed to be involved at all levels.  Yet, there were skeptics who believed that the average American did not have the ability to make informed decisions.  That is why Jefferson and others advocated for a strong education. Educated people can potentially make good decisions.  Good decisions require knowledge of the issues, an understanding of what is to be achieved, and a knowledge of what America stands for.

An education must include a history of America, so that people understand what our founding fathers and revolutionaries fought for.  It must also include a thorough study of the Constitution and the operation of our government. ( For example, several decades ago there was a cartoon, “How a Bill Becomes Law,” that helped our youth understand how a bill is shaped and moves through Congress to the Executive Branch for signature.)  Students also need skills in critical thinking.  These include an understanding of how to evaluate source materials.  In this age of instant media coverage, it is even more important than several decades ago.  Too much of the information that is presented today is either a “rush to press,” something that should clearly be labeled as “editorial“ or “opinion,” or just plain false!  People need to know how to evaluate their sources in order to make informed decisions. 

People must also know how to evaluate the performance of their elected representatives in Congress.  The joke today is that a representative or senator simply has a lobbyist write the bill and then they introduce it to their respective chamber.  It is a bad joke, but it does have some merit. 

How do we gain control of our democracy?  One starting point should be local involvement in our education system– being aware of, and involved in, the curricula that our schools teach.  Citizens should also get to know the teachers, run for the school board, and, work with educators to lobby state governments on the importance of history, political science, and critical thinking in the curriculum.

Citizens should also pay attention to the actions of their elected representatives at the local, state, and federal level.  Votes on all legislation are a matter of public record.  Citizens should learn how to voice opinions on pending legislation through the mechanisms that are now available to anyone with an internet connection.  If the internet is not an option, they should call legislators.  Citizens must make their feeling known then follow up to see how their legislators voted!

In other words more citizens should GET INVOLVED!

American Democracy and Freedom:  A Gift that Requires Much Work

By Robert Fischer

Introduction

While I have striven to stay in the middle when presenting topics in the past, I have often failed.  The past four years have moved my position to the left in some of my posts. In four years of office, President Donald Trump has managed to trample on the basic foundation of this country—our Constitution. As a Presidential candidate, Trump used the slogan “Make America Great Again.” In my opinion, America IS great!  Although there are some who would question the greatness of the United States, we are among the few nations that afford the most individual freedoms.  As a nation, our democratic, capitalist, republic has been a model for many other countries. 

Our founding fathers created a new system of government unlike any that existed at the time– and perhaps in all of history.  During their lifetime, countries were governed by monarchs, and the people were subjects.  The founding fathers had the audacity to suggest that the people should be the government. There was no need for a king.

 I’m not sure that President Trump views America this way.  He seems more interested in his own image and often projects the image of a monarch rather than an elected president.  Unfortunately, he has managed to convince a vast number of people that he alone holds the answer to their perceived problems. 

The Foundation of Democracy

How do you build and maintain a government of the people when so many fail to understand the basic foundations that this nation was built on?

Historic Experiments and Thinking

What led these founding fathers to believe that thirteen very different colonies could, and even want to, try to govern themselves? The idea of a democracy was not new.  The Greeks had tried it on a small city/state level.  The Romans had a republic with a senate and emperor.

The founding fathers used these experiments with rule (or at least involvement) of the people over government as a starting point. They supplemented this base with other ideas. These individuals were well educated in 17^th Century philosophy.  Writers such as Thomas Hobbs wrote that people cannot govern themselves because they are self-centered and quarrelsome.  On the other hand, philosophers such as Voltaire, Montesquieu, and Rousseau encouraged thoughts of rule by the people, questioning the authority of absolute monarchies.  Montesquieu went on to suggest a shared government, with separation of powers through various branches of government.

Foundations for the American Experiment in Democracy

Of these 17^th Century writers John Locke was perhaps the most influential.  Locke contended that rulers could only rule with the consent of the governed.  In other word, the government’s duty is to protect the rights of the governed.  These rights included life, liberty, and property.  In fact, Thomas Jefferson used much of Locke’s thinking in the drafting of the Declaration of Independence.

Even though the colonies revolted against the king of England, the English form of government was still the basis for much of this country’s government and law.  The Magna Carta (1215) required that the king consult nobles before making major decisions.  This right led to the creation of Parliament.  In 1628, “commoners” were given a voice in Parliament.  And in 1688, Parliament passed the English Bill of Rights, guaranteeing free elections as well as rights to those accused of crimes.

American Democracy Today

Our founding fathers used various ideas to craft a government of the people.  While a unique blend of historic ideas, a government by the people and for the people became the primary  reality.  There were those who didn’t think that the “experiment” would succeed.  However, the United States of America has retained our government by the people for over 250 years.  But today, the country is perhaps suffering from too much government by a president who thinks he can make all the decisions, and too little active participation by the people.  This lack of participation is partially the result of inadequate education about our form of government and the thinking of those who founded this nation. In addition, as a result of a shift in power to the moneyed interests, many voters feel that their votes not longer count. However, the encouraging news is that the Presidential election of 2020 resulted in a massive voter turnout.

The Foundational Principles for American Democracy

The Power of the Constitution

Our founding fathers were some of the brightest people of their time.  Thomas Jefferson, the primary author of our Constitution, cautioned, “On every question of construction [of the Constitution] [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.” George Washington instructed that, “The power under the Constitution will always be in the people.  It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own choosing; and whenever it is executed contrary to their interest, or not agreeable to their wishes, their servants can and undoubtedly will be recalled.”

The Assumption of Virtuous People

Both of these men believed in the power of the Constitution and the people.  It is the belief in the power of good, moral people that sustains the freedom that we have under the Constitution.  Still, there were reservations and warnings from our founding fathers.  Benjamin Franklin believed, “Only a virtuous people are capable of freedom.  As nations become corrupt and vicious, they have more need of masters.”  Daniel Webster warned, “I am committed . . . to the Constitution of the country. . . And I am committed against every thing, which, in my judgment, may weaken, endanger, or destroy it. . .; and especially against all extension of Executive power; and I am committed against any attempt to rule the free people of this country by the power and the patronage of the government.”  Samuel Adams wrote, “. . . if we are universally vicious and debauched in our manner, though the form of our Constitution carries the face of the most exalted freedom, we shall in reality be the most abject slaves.”  And perhaps the most important warning came from Thomas Jefferson.  “We in American do not have government by the majority— we have government by the majority who participate… All tyranny needs to gain a foothold is for the people of good conscience to remain silent.”

Education

George Washington believed in the necessity and power of education.  He believed that there “should be the education of our youth in the science of government.  In a republic, what species of knowledge can be equally important?  And what duty more pressing. . . than communicating it to those who are to be the future guardians of the liberties of the country?”  James Madison agreed.  “A well-instructed people alone can be permanently a free people.”   Thomas Jefferson wrote, “I know of no safe depositor of the ultimate powers of society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.  This is the true corrective of abuses of constitutional power.”

Franklin is credited with answering a question from a concerned constituent about democracy.  He may have said, “We have created a democracy, now can we keep it?”

Keeping the American Democracy Alive — Conclusions

While we still live in a country that values democracy, we must also face the fact that there is much social unrest and disagreement over what the United States stands for.  Are we the land of opportunity?  Do we welcome the poor and huddled masses?  Are we participating in our government by at least casting a ballot?  Are we educating our youth regarding the foundation and operation of our government?  Do we teach American values through history?  Do we still teach about American heroes? 

I believe that we have come to a point of self-analysis.  Many Americans only see the problems and missteps that our government has made over the course of its existence.  Granted, it is important to be critical of the way the Native Americans were and are treated.  It is important to remember, not forget, our heritage of slavery and the problems that are still present among black citizens.  And more recently, we should not forget that there have been many Americans who failed in their duty to protect democracy.  Think about Watergate, the My Lai massacre, Abu Grab, and other misdeeds.

However, we must also not present our nation as somehow failing.  We must regain our pride in being Americans.  We must continue to work to fix our flaws.  We should also honor the people who sacrificed to make this nation great.  We must learn to debate and find solutions to our differences.  Polarization (far left or right) only leads to a path of self-destruction.

We must remember that despite President Trump’s decisions over the past four years, the United States can still be a world leader and should be a role model   We must take pride in this leadership role and continue to evaluate our behavior on the world stage!

What Would Hamilton, Jay and Monroe Think of Our President’s Statements Regarding His Self-Appointed Victory?

By Robert James Fischer

Introduction

As the presidential election draws to a conclusion, two opposing views of the executive branch of the government are being presented by our two candidates.  On one hand, President Trump talks about curbing the vote in some states, but extending it in others.  On election night, he went on national television to declare that he had won when his electoral vote was nowhere near the 270 needed for victory.  Over his almost four years in office, he has repeatedly claimed powers for the Executive Branch that are not there.  In addition, his rhetoric has empowered radical right groups, often resulting in rioting or other violence.  On the other hand, former Vice President Biden is presenting himself as a person who will govern as a national president, not a democratic politician.  It is too early to know whether he will work within the confines of the executive branch as defined in our Constitution or seek to expand its powers. However, his years as a representative and senator would indicate that he believes in a representative government, not a closely executive controlled organization.

The apparent differences between the two candidates caused me, as an historian, to consider what our founding fathers intended.  While I could refer to the Constitution or the Declaration of Independence, the best source of information is perhaps the Federalist Papers.  This series of essays approached a variety of topics that were significant in the debate about the proposed Constitution and what our nation would become.  There are 85 essays, written under the name Publius.  In reality, the authors were Alexander Hamilton, John Jay, and James Monroe, with Hamilton writing the majority of the essays.

The Executive Branch and the President

Before considering the presidency, the Constitution makes it clear that our founding fathers considered the legislative branch the most significant.  While they envisioned a strong executive branch, they did not want an executive branch that resembled the English monarchy.  Therefore the executive branch is covered in Article II, not Article I.  The Constitution limits the term of the President to four years.  Under oath the President swears to “preserve, protect and defend the Constitution. . . “

Article II gives the President the following powers:

• To be the Commander in Chief
• To seek opinions from his Executive Cabinet members
• To grant reprieves and pardons for offenses against the United States, except for cases of Impeachment
• To make treaties with the advice and consent of the Senate
• To nominate ambassadors, other public ministers and cousuls [sic], judges of the Supreme Court, and all other officers of the United States, with the consent of the Senate
• To appoint inferior officers such as courts of law or head of departments if such power is given by Congress
• To report on the state of the Union to Congress
• To make recommendations to Congress
• To convene both Houses in cases of disagreement between them
• To receive Ambassadors and other public ministers
• To commission all officers of the United States
• To make sure that the laws passed by Congress are faithfully executed

These are the only powers granted to the Executive by the Constitution.

The Federalist Papers and the Executive

In the paper, “The Real Character of the Executive,” one of 11 essays that discussed the executive powers and limitation, Publius explained that the President would not be like the King of England.  The President would be inferior to a king.  In this text, Hamilton (Publius) discussed each of the above powers, reiterating that while the President (executive) has powers, they are constrained by the Senate or Congress.  In the next essay, Hamilton argued for an executive that was sufficiently independent yet sufficiently controlled. He argued that an appropriate balance in government could only exist when each branch had enough autonomous power so that tyranny of one branch over the other could not occur.

In addition to the above Constitutional granted power in Article II, the President also has the power to veto legislation as granted in Article I.  Hamilton supported this power, arguing that it provides stability by preventing “excess of lawmaking.”  Madison also supported Presidential veto and judicial review as granted in a separation of powers, so that each branch could act independently for the benefit of the country.

However, others opposed an executive not constrained by an advisory board which would have powers to check executive decisions.  Persons like George Mason and Richard Henry Lee were prominent in opposing a strong executive branch, and began publishing the Anti-Federalist Papers. Yet the executive branch as envisioned by Hamilton prevailed. 

Executive Power Expansion

A result of Hamilton’s argument in favor of a powerful, yet constrained, chief executive has led to the expansion of executive powers, especially in the area of national security.  Over the past few administrations, beginning with President Bush following 9/11, the use of executive power and Executive Orders has increased.  There are those who believe that this unitary power is essential.  They argue that Congress is designed for deliberation, while the executive branch is designed for action. 

Executive Constraint

While Hamilton favored a powerful executive, he believed that the executive branch needed to be constrained by the limits imposed by the Constitution.  The President is not allowed by the Constitution to work outside the law, whether established by the Constitution or passed by Congress.

Back to the Question

Given the preceding discussion, it is apparent that President Trump has been acting beyond his Constitutional given powers.  He does not have the authority to use his office for political promotion.  He does not have the power to make unilateral decisions regarding issues such as climate change or treaties.  While he can negotiate, the ultimate authority is clearly given to Congress. 

How President elect Biden will handle these contentious issues is yet to be seen.  Will he seek civil discourse and compromise or will he revert to Executive Orders?

His choice will likely be influenced by whether the legislative branch chooses to work with him, as our founding fathers envisioned, or work to obstruct him. Hopefully, Congress and the President will find common ground which reflects a compromise of what “we the people” want.

Thoughts from the Middle

The Police and the Use of Deadly Force:  Racial Disparity and Crime

By Robert James Fischer

Reporting on the Police Use of Deadly Force

It is both interesting and disconcerting to note that even though the Federal Bureau of Investigation reports on numerous crime related issues in its National Crime Report issued each year, what is notably missing from this report is complete data on deadly force used by police officers.  A recent Time article (July 20/July27, 2020) asked the simple question; “Why don’t we know how often police kill people in America?” 

There have been three efforts to address this problem of lack of reporting.  The first was a provision in the 1994 Crime Bill signed by President Bill Clinton.  The second was an effort in 2015 by President Obama to order the FBI to collect use of force data from state and local jurisdictions.  And the third was an Executive Order signed by President Trump in 2016 which tied grant funding for various police programs to voluntary reporting.  That program finally began in January 2019.  However, despite these combined efforts, only 5,043 out of 18,514 law enforcement agencies participated. (It should be noted that although a low number of agencies responded, many are larger agencies, employing 41% of all police officers.)  In addition to the government efforts, the Washington Post began a fatal police shooting project in 2015 in an effort to determine the full extent of police involved deaths.  This is perhaps the most comprehensive data base covering fatal police shootings.

The Data

Officer Involved Homicides

The Washington Post has recorded over 5,000 fatal police shootings since initiating the project in 2015.  The project relies on media accounts of “fatal in the line of duty police involved shootings.”  There are several consistent findings.  The annual number has remained steady, around 1,000 incidents per year.  While over 45% of those shot by police are white, the data indicates that blacks are killed at a higher rate.  While blacks make up approximately 13% of the population, they are killed at over twice the rate of whites.  Of the total, 95% are males, with the majority between 20 and 40 years of age. While shootings occur across the United States, it is no surprise that they occur more frequently in larger cities.

Other notable trends:

• Police shootings of unarmed persons have declined since 2018.
• In the first two years of the study, 86 people were killed because they were using “lookalike” guns.
• Approximately 20% of the time, officers’ names are not disclosed.

Arrests for All Crimes

The FBI gets reports on all crimes from all police agencies.  Their annual publication, Crime in the United States is an excellent source for crime data.  In 2018 the FBI reported a total of 7,710,900 crimes.  Sixty nine percent were committed by whites, 27% by blacks, 2% by American Indians, and less than 1% each by Asians, Pacific Islanders and Hispanics.  According to the 2010 U.S. Census, Whites make up 76% of the population, Blacks 13%, American Indians 1.3%, Asians 5.9%, Pacific Islanders 0.2%, and Hispanics 18.5%.

Crimes and Police Shootings

When comparing crimes committed and persons killed by police officers, a logical conclusion is that the percentage of individuals killed by police officers should be similar to the percentage of those involved in criminal behavior.  Using the known statistics from the Census Bureau, the FBI, and the Washington Post, a comparison across race is possible.  The following table shows race as a percentage of the population, participation in criminal activities by race, and percent of  victims of police shootings by race.*

Race                % Population             % Criminal Involvement       % Victims of Police Shooting

White              76                                69                                            45

Hispanic          19                                  1                                            17

Black               13                                24                                            27

Asian                 6                                  1                                              1

Native Am.        1                                  2                                              1

Other                 1                                  1                                              1

*PERCENTAGES are rounded up

The Black Anomaly

While I am in total agreement with the concept “Black Lives Matter,” I do not agree with the focus being solely on police officer involved shootings and the Black community.  As a society we should also be focusing on the problem of fatal shootings of Blacks by other Blacks. For example, the homicides in Baltimore, Detroit, and Chicago are predominately Black on Black.  In 2016, according to FBI statistics there were 17,250 homicides, of which 2,570 were known black on black.  

Tio Hardiman, the Executive Director of Violence Interrupters, an organization attempting to decrease violent crimes in our cities, has said “… it’s a Black man’s responsibility to reduce the gun violence in their communities.” Hardiman believes that much of what is happening in the inner cities is the result of learned behavior, passed on from generation to generation.

 Hardiman is a Black man from Chicago who believes that waiting for others to solve the violence issue is not going to solve the problem. (Louis Casiano, Stephanie Pagones, (www.foxnews.com/us/chicago-homicide-victimes-black-police-data-show, July 2020)

Thus, the police should not be singled out as the sole cause of this discrimination.  As a former Chicago police officer has said, the police do not randomly show up; they are called to, or see, crimes being committed.   As the above table indicates, a disproportionate amount of crime is attributed to Blacks.  It therefore holds that if the police are responding to those crimes, they will likely also encounter a disproportionate number of hostile reactions that could lead to the offender’s death. 

What. then, are the reasons that our Black population is overrepresented in crime statistics?

The answer to this question is not simple.  However, a quick look at poverty provides a partial explanation of this complex issue. While 7.3% of the white population live in poverty (defined as a single income of less than $11,770 or a family of four making less than $24,250), 18.5% of the Black population live in poverty, and 15.7% of Hispanics live in poverty.  The percentage among all other races is less than 10.5%, except for Native Americans who represent the highest figure—25%.

Summary

Other reasons involve social, economic, cultural and psychological factors that are complex and interactive.  But let it suffice to say that the issue of police shootings of Black people is a complex one that cannot be explained simply by racism among the law enforcement profession.  “Black Lives Matter” should focus on all cases of violent deaths in the Black population, as well as on solutions that address all socioeconomic, psychological, and cultural factors.