Was the 2020 election stolen from Donald Trump? Is Joe Biden the legitimate president? Do you support Trump? Does he support you? If you've been watching C-SPAN's coverage of the 2022 midterm elections -- after all, October is famously known as debate month at C-SPAN -- you've probably heard moderators and reporters ask these questions. Over and over. In C-SPAN's podcast "The Weekly," it's a special round-up of C-SPAN's debate coverage.
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‘Administrative law’ sounds dry but likely will be key to success or failure of Trump’s plans for government reform
Dec 24, 2024
There’s a lot of speculation about what Donald Trump’s second term in the White House will bring. But there’s one thread that’s likely to tie together many of the changes and conflicts: the subject I teach – called “administrative law.”
That’s because administrative law spells out the procedures that an administration must use to make changes in existing policies or adopt new ones. The processes defined in those laws are also used by groups that go to court to oppose an administration’s proposals.
It’s not yet clear what changes Trump will actually try to make, but his 2024 campaign – and his first term – signaled that he wants significant changes in how government operates.
How administrative law works
Administrative law, at its heart, seeks to ensure that government agencies have the legitimate authority to act and the necessary information to accomplish their missions. So if a president wants to tighten or loosen factory pollution standards, or restrict or broaden eligibility for farm subsidies, the agency taking those actions will use administrative procedures to adopt the change. Other administrative procedures will apply as the courts rule on the legality of those actions.
For example, a federal agency that wants to adopt or amend a regulation must notify the public of that intention and receive public comments on the proposal. It must also spell out how the law authorizes the agency to make the change, and offer clear objectives of what it wants the change to achieve and evidence that the change will in fact produce that result. The agency must also explain why it has rejected the reasoning in any comments that argued the change should not happen or that argued it should be modified in some way.
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If an agency wants to remove an existing regulation, it must prove that regulation is not necessary to protect the public from some harm or danger. That includes overcoming the reasons the agency gave for adopting the rule in the first place.
Ideology is not enough. If the Environmental Protection Agency, for example, has previously adopted an environmental regulation based on scientific and other related evidence, it cannot simply change its mind and get rid of the regulation when a new president takes office.
Instead, the EPA must show that the original scientific or other information was wrong or did not support the rule. That’s a difficult task, because the EPA’s scientists generally do not make that kind of mistake. It may be hard to find scientific or other evidence that supports a radical policy change, though an agency may have an easier time defending modest changes to a regulation.
Administrative law also provides the legal standards used by the courts to determine whether new or revised policies are valid. A court will reverse the adoption of a policy if it is “arbitrary and capricious” or if the agency action is inconsistent with the law being used to take an action.
Looking at courts’ rulings
Though almost 80% of major rules are not challenged in court, agencies have been sued for acting improperly under every presidential administration.
A January 2024 study analyzed those lawsuits from 1996, when a major set of administrative law regulations was created, through the end of Trump’s first term. It found that challenges to rules made during all five presidential terms before Trump largely failed, overturning the rule only between 5% and 29% of the time. Including rulings that overturned just part of the rule, challenges to pre-Trump rules succeeded between 33% and 48% of the time.
Challenges to Trump administration rules, however, completely succeeded 50% of the time – 59% of the time if partial overturns were included.
The difference between these sets of results is primarily due to federal agency lawyers, whose job it is to make sure agencies follow the required administrative law procedures. I believe that Trump’s first administration’s significant loss rate indicates that while Trump proposed a great many changes to a wide range of policies, his administration’s lawyers did not ensure those changes went through the correct processes – or could not justify the changes under applicable legal requirements – but the administration went ahead anyway.
That history does not mean Trump’s proposals will fare similarly in his second term. He may have more careful lawyers this time. But lawsuits are still likely to challenge whether agencies complied with the applicable procedural and substantive laws.
Firing the experts?
Right at the end of Trump’s first term, he issued an executive order that sought to ease the process of firing government workers and to connect hiring and retention of federal employees with their views about the sitting president. His first term ended before it took effect, and the order was reversed by Joe Biden upon his inauguration.
In his 2024 campaign, Trump pledged to reinstate that order. If he does, and if its provisions are carried out, Trump could seek to replace as many as 50,000 civil servants with political loyalists and allies.
A mass firing, however, would mean getting rid of thousands of people who have the expertise, experience and knowledge to help the administration find policy changes that would survive judicial review.
Help from the judiciary?
Trump could be counting on favorable rulings from the judges he appointed in his first term. But that didn’t work for him then: Judges appointed by presidents of both parties overruled new Trump rules in lawsuits. That is how he lost half of the cases.
And Biden’s administration has been busy appointing judges who may be more skeptical about the changes made by Trump than their colleagues appointed by Republican presidents. Republican-appointed judges are a majority of the judges in six federal judicial circuits, but judges appointed by Democratic presidents are in the majority in the remaining seven circuits.
Advocacy groups of all kinds often choose carefully where they sue the federal government to avoid bringing cases before federal judges who are more likely to rule against them.
In cases that involve close judgment calls, judges’ own views may hold sway: That is how judging works. But there may be cases that are not close, and, in those, administrative law and the precedents of decades of legal decisions will apply.
One potential pitfall
There is one aspect of governing that administrative law is not good at.
Administrative law is focused on agency actions, not inaction. During Trump’s first term, some of his most successful efforts at protecting industry from regulation involved sitting on the sidelines and not creating new rules at all. In his first term, for example, his administration delayed or undid almost all regulatory actions concerning climate change.
If Trump’s second administration is as disinclined to issue new regulations as was true in his first term, there will be very little that administrative law can do about it.
Shapiro is a professor of law at Wake Forest University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
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Paving the path forward to strengthening democracy
Dec 23, 2024
Kristina Becvar and David L. Nevins, co-publishers of The Fulcrum, announced recently that effective Jan. 1, Hugo Balta, The Fulcrum’s director of solutions journalism and DEI initiatives, will serve as executive editor. What follows is a message from Balta about his new responsibility.
In the aftermath of this year’s contentious presidential election, it is imperative to heal a democracy fractured by polarization, emphasizing the importance of dialogue, accountability, and inclusive and transparent governance.
Journalism plays a pivotal role in upholding democratic values and ensuring the health of democratic systems. As our country faces complex challenges, the significance of a free and independent press becomes increasingly evident.
The Fulcrum fosters public discourse by providing a platform for diverse voices and opinions. The national news outlet amplifies marginalized perspectives through news articles, opinion pieces and investigative reports, fostering an inclusive dialogue vital for a thriving democracy.
As The Fulcrum’s executive editor, I’m grateful for the opportunity to take a collaborative approach to paving the path forward to a more informed and engaged citizenry, fortifying the foundations of democracy.
A solutions journalism approach to covering democracy (not politics)
While many newsrooms extensively cover politics, there is a lack of focus on democracy itself — the electoral and governmental systems that shape our nation. So, how can we meet this demand, especially after a divisive election year? The answer lies in embracing solutions journalism.
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Earlier, I wrote about the concept of solutions journalism, which aims to foster an environment that tackles the challenges faced by our democracy by promoting civic engagement, equity and constructive discourse. By shifting the focus from merely reporting on problems to highlighting responses (to those problems), thought leaders and journalists can contribute to a more informed and empowered populace.
People across the country feel frustrated and disillusioned with U.S. politics and the journalism that reports on it. Coverage in mainstream media often focuses on extremes, poll numbers, accusations and sensational statements. My charge is to captain The Fulcrum in providing people with what they truly desire from news outlets: information that helps them comprehend and navigate the complexities of the world around them.
Complicating The Narrative
Many people's emotions are running high right now. Elections often bring out a wide range of feelings, whether pride and optimism for those who are pleased with the results or disappointment and frustration from those who aren’t. After a long and grueling election season, we need to connect with and not avoid one another.
In times of high conflict, it's common for people to split into two opposing groups and view each other negatively. This can lead to generalizations and name-calling, which often dehumanize the other side and can escalate tensions. A more productive approach is to seek a deeper understanding of the complex factors that contribute to different perspectives. Doing so can help reduce polarization and foster more constructive dialogue.
As a solutions journalism practitioner, I leverage Complicating the Narratives, which helps journalists find new ways to report on controversial issues and polarizing politics. It draws on the experience of experts in conflict mediation. When reporters use these strategies, they listen better, ask more revealing questions, effectively introduce opposing viewpoints and embrace nuance in their reports. They learn to tell more accurate, richer and fuller stories.
Off The Sidelines
Journalists are trained to view their role as chroniclers of history rather than participants in it. This “on the sidelines” approach is rooted in the belief that involvement could compromise their objectivity, potentially positioning them as active participants rather than impartial observers of the situations they are reporting on.
Objectivity proposes that there are two sides to every story. However, there are many perspectives, and the ones most often left out are from marginalized communities whose representation is absent from newsrooms. That is why I subscribe to transparency in the pursuit of truth.
Acknowledging my biases, I surround myself with people who do not share the same experiences, backgrounds and ideologies. We ensure fair and accurate coverage by “getting on the playing field” and engaging in discourse and debate about story coverage, focus, those who tell the stories and those who are heard.
Journalists are tasked with assisting the public in engaging in self-governance in a responsible and informed manner. This responsibility underscores the importance of a free and independent press, recognized as vital to democracy and enshrined in the First Amendment to the U.S. Constitution. The founders understood that the success of the American republic's democratic experiment depended on the unrestricted exchange of information and ideas.
While the road to recovery may be challenging, a collective commitment to understanding and cooperation can foster a more resilient and unified democracy.
As The Fulcrum’s executive editor, I am equal to the task of highlighting how journalism contributes to strengthening democracy and its functions and challenges in an ever-evolving media landscape. This function is essential for an informed citizenry, as it allows the public to make educated decisions and engage meaningfully in civic life.
Ultimately, a democracy's strength lies in its ability to adapt, listen and grow in the face of adversity.
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Open primary advocates must embrace the historic principles of change
Dec 23, 2024
This was a big year for the open primaries movement. Seven state-level campaigns and one municipal. Millions of voters declaring their support for open primaries. New leaders emerging across the country. Primary elections for the first time at the center of the national reform debate.
But with six out of eight campaigns failing at the ballot box, it’s also an important moment of reflection.
Some folks have likened this year’s losses to the normal flow of any successful change movement. But I spent almost 20 years as an attorney in the civil rights movement before joining the political reform movement. This year’s campaigns were anything but normal. There’s a core set of principles that have guided the successful development of every change movement since women’s suffrage in this country, and too often campaigns (save the tremendous work of Lisa Rice in Washington, D.C.) ignored them.
If we are going to grow into a winning movement, we have to start embracing the principles of change.
Principle 1: Build a foundation
Asking voters to change how they vote is hard work. Unlike reformers, voters don’t have the luxury of thinking about democracy reform every day. Many are ready for change, often more than reformers themselves, but they have little understanding of the issues. That requires significant investment in education and conversation.
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That can’t happen in the course of a campaign asking for their vote. Sometimes winning is the easy part, holding on to a reform requires voters to take ownership of it. A runway must be built and that can take years. Oklahoma just launched a campaign for open primaries last month, after first spending 10 years building a conversation in the Sooner State.
Principle 2: Develop grassroots and grasstops support and leadership
Change campaigns are built on a foundation of trust. Trust is everything. Voters are unwilling to vote for reform, even reform they support, unless they are absolutely sure that the intent of those advocating for that reform is genuine and not for the purpose of gaining advantage.
Several years ago, we conducted exit polling after a failed campaign in Oregon that had high polling numbers. Voters were clear-they supported the policy, but not the campaign. That means investing in the hard work of a campaign led by and supported by real people. Voters easily sniff out campaigns led by paid consultants. One campaign I spoke with this year rated their grassroots development an “F.” We must do better.
Principle 3: Offer a policy that responds to and connects with voters
In most cases, the combination of ranked choice voting and open primaries was a mistake. They are separate reforms with different politics, constituencies and histories, and most campaigns couldn’t answer the fundamental question of why they were being combined. Voters found them complicated, and they were too easily attacked by opponents as a result.
And too often, the combination was determined by a small group of funders or activists, and did not come out of any process of conversations with voters themselves. Ironic, considering that the purpose of reform is to expand, not limit political input.
Principal 4: Be honest in your messaging to voters
Having the trust of voters requires you to be honest with them. No more so than when you’re asking them to change the rules of the game.
The combination of open primaries and ranked choice voting presented clear challenges to campaigns where the former polled significantly better than the latter. For much of the past year, the refrain from PR consultants, funders and activists alike was to focus on open primaries and limit discussion of RCV. It was framed as effective messaging, but in reality it was simply dishonest.
It demeaned our work and destroyed trust.
The Grand Bargain
Every successful change campaign in America has been a grand bargain between funders and local and national activist leaders. The activists lead and the funders support them with the resources and expertise they need to be successful. Both are necessary. As we move forward trying to enact reform in an era of profound suspicion, where voters are rejecting the concentrations of wealth and power in our society at every level, that order of leadership is critical to build trust.
Too often this past year, though, campaigns were developed by funders, and decisions were made without the participation of local and national leaders. Voters saw funder/consultant-dominated campaigns this year and wholesale rejected them.
As some have likened the political reform movement trajectory to that of the marriage equality movement, it's helpful to understand how that movement was funded. From 2004 to 2013, funders spent a billion dollars over 10 years. One of the key funding partnerships was the Civil Marriage Collaborative, which included several large foundations and donors. They focused on working with key groups in the space to build a grassroots constituency and public education apparatus. They diversified their strategy to include litigation, grassroots organizing, lobbying and electing pro-LGBT politicians.
As then-CMC Director Paul Di Donato said, “the only way to achieve and defend a marriage equality victory nationwide was … changing the hearts and minds of Americans about the rightful place of LGBT people in our society and … why marriage matters for us.” That’s how movements are built.
Much of the post-mortem debate so far on 2024 has focused on public support for the particular policies put before voters — but that’s only a small part of the lessons we must learn if we’re going to move forward successfully and build this movement. The opportunity is all in front of us — if we embrace the “how” and follow key tenets of change that have driven every reform movement before us.
Gruber is senior vice president of Open Primaries.
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Is the rule of law in trouble? If so, judges could be the problem.
Dec 23, 2024
The results of a new Gallup poll offer alarming evidence of a serious erosion of confidence in the American judicial system. And if that was not enough of a signal, a survey done by Monmouth University delivered more bad news for people concerned about the rule of law in this country.
It found that almost a quarter of the American public would not be “bothered at all” if the president suspended some “laws and constitutional provisions.” Another quarter would only be bothered “a little.”
Reading these results, I was reminded of the quote from the Pogo comic: “We have met the enemy, and it is us.”
As commentators from Alexander Hamilton to the present have said, the rule of law can only survive if the people have faith that it is applied impartially and equally and that everyone will follow the rules, even when it is inconvenient for them to do so. Faith — that is the right word.
Hamilton understood this.
In Federalist 78, he predicted that the judiciary “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” The judiciary, he argued, would “have neither FORCE nor WILL, but merely judgment.”
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The quality of that judgment, he continued, “may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of public justice and public security.”
In Federalist 22, Hamilton noted that unless people have faith in judges and respect their judgments, “laws are a dead letter.”
Four years ago, the National Judicial Council, echoing Hamilton, offered advice for people new to the bench. “As a judge,” it said, “you have no ability to enforce the decisions you make. … If you sentence someone to jail, you have no power to make certain that sentence is carried out.”
That is why the council described the power of courts as “fragile” and concluded that the rule of law depends on the willingness of “good people” to “follow the law because that is what good people do.”
The new surveys highlight that fragility and document a dramatic loss of faith in the courts and the rule of law among “good people” in the United States. Let’s start with Gallup.
It summarizes its major findings: “Americans’ confidence in their nation’s judicial system and courts dropped to a record-low 35% in 2024. The result further sets the U.S. apart from other wealthy nations, where a majority, on average, still expresses trust in an institution that relies largely on the public’s confidence to protect its authority and independence.”
“Since 2020,” Gallup continues, “confidence in the courts … has seen a sharp decline -- 24 percentage points.” In fact, the only nations that have seen anything close to such a precipitous decline are “Myanmar (from 2018 to 2022) overlapping the return to military rule in 2021, Venezuela (2012-2016) amid deep economic and political turmoil, and Syria (2009-2013) in the runup to and early years of civil war, and others that have experienced their own kinds of disorder in the past two decades.”
That’s some company for a nation supposedly steeped in the traditions Hamilton initiated.
The bad news does not end there. Gallup reports: "The judiciary stands out for losing more U.S. public confidence than many other U.S. institutions experienced between 2020 and 2024.”
Things don’t look much better in the Monmouth survey. It found stark partisan divides in what respondents would think if the president disregarded the “laws and constitutional provisions to go after political enemies.” Just over one-third of Republicans said, “It wouldn’t bother them at all if Trump suspended some laws and constitutional provisions to go after political enemies, while an additional 34% said it would only bother them ‘a little’ if the incoming president took such a step.”
But, as The Washington Post’s Aaron Blake notes, it isn’t only Republicans who have these views. Trump-leaning independents have also shifted significantly. “Overall, the percentage of independents who say they would be bothered a lot if Trump targeted his enemies has dropped from 68 percent in June, to 60 percent in October, to 55 percent today.”
These results are partially attributable to the fact that the question Monmouth asked named Donald Trump as the person who might suspend the law.
An Ipsos poll done last spring did not refer to Trump when it asked whether “a strong president … should be allowed to rule without too much interference from courts and Congress.” Even so, 52 percent of Republicans said yes.
The Gallup results help explain why many Americans would be okay with presidential departures from the rule of law. If people aren’t confident in courts or have lost faith in the judgments they make, it is hardly surprising that they might be open to such defiance.
Why does the United States find itself in this grim situation?
Many factors could be cited, including questionable ethical judgments by Supreme Court Justices, unpopular judicial decisions, and partisan attacks on courts and judges.
But here, I’d like to suggest that the judiciary has not helped itself in the way it goes about its business. Take the nation’s highest court.
As the journalist Kevin Drumm puts it, “The Supreme Court has always been political, but … it [has never] been so nakedly political.” Drumm is right to say, “They barely even bother trying to hide it.”
In the lower courts, similar things are happening. For example, Alma Cohen of Harvard Law School has shown that “the judges’ political affiliations, inferred from the party of the appointing president, can be used as a predictive tool for decision outcomes in 92% of the circuit court decisions studied.”
And do you think it is an accident that Republican litigants have beat a path to Amarillo, Texas, to get their cases heard by federal District Judge Matthew Kacsmaryk, who New York Democratic Sen. Chuck Schumer calls the MAGA movement’s “favorite judge”? Judge shopping is hardly one-sided. For years, liberals tried to get cases heard in the 9th U.S. Circuit Court of Appeals, which was notorious for the leftward tilt of its decisions.
The American public has gotten the message. More than six in 10 now say that “politics, not law” explains Supreme Court decisions.
Finally, why should anyone respect the court or its justices when they don’t display respect for each other in their written opinions? Just read what Justice Samuel Alito said about the justices who had decided Roe v Wade, which he called “egregiously wrong from the start.”
He accused them of “usurp[ing] the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” Or recall Justice Sonia Sotomayor’s suggestion that the court is putting its survival in peril by making decisions that “are just political acts."
Ultimately, we cannot snap our fingers and restore public confidence in courts and faith in the rule of law. But we can call on judges at every level of the court system to stop digging the hole any deeper.
The new polling results should be a wake-up call and a reminder that unless they behave in ways that inspire, rather than undermine, belief in the fairness of their rulings, “good people” may conclude that the rule of law is a hoax. And that is a stepping-stone to authoritarianism.
Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
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