Harvard Law & Policy Review

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Alternative Facts in the War on Immigrants

By Philip L. Torrey*

For the past couple of weeks, many of us have rightly focused on the chaos that Trump’s hasty and ill-conceived executive orders on immigration have created. But buried in the fine print of the “Interior Enforcement” executive order is a provision that signals an equally alarming threat; one that has gone largely unnoticed. The ominous provision signals the makings of a new propaganda machine that is designed to fuel Trump’s anti-immigrant campaign by twisting facts to cook up a crisis that doesn’t exist.

More specifically, Trump has directed ICE (the federal agency responsible for immigration enforcement) to collect and study data on what Trump has long—and falsely—alleged to be a major public safety problem: the criminal behavior of immigrants in this country. With a sweep of his pen, Trump has created an ICE public relations office that is charged with providing “quarterly reports studying the effects of the victimization by criminal aliens present in the United States.” At first glance, the professed cause seems noble. But narrowing these studies to only those crimes perpetrated by immigrants and shoehorning such a study into the agency responsible for immigration enforcement is both irresponsible and dangerous. ICE has neither the time nor the expertise to be advancing someone else’s social science theories of crime.

Here’s the truth on immigrants and crime. Numerous studies have shown that the crime rate among immigrants is significantly lower than among native-born U.S. citizens.[1] In the 1990s and 2000s, as the immigrant population dramatically grew in the United States, FBI data shows that the violent crime rate simultaneously plummeted.[2] These and other statistics demonstrate that the vast majority of immigrants are law-abiding, contributing members of society.

The current facts on immigrants and crime are not convenient for the White House. So, instead of adjusting his policies in accordance with facts, Trump is positioning himself to adjust facts in accordance with his policies. Now under pressure to generate “alternative facts” for the President’s war on immigrants, the likely result of this new directive on ICE will be to politicize the low number of tragic and heinous crimes committed by immigrants. Those rare incidents will be used to label all immigrants as dangerous felons. In doing so, we will be diverting valuable resources, time, and attention away from studies that could truthfully elaborate on proven causes of crime, such as poverty and lack of access to education.

This diversionary tactic has now become a pattern with this administration. New Attorney General Jeff Sessions recently said: “We have a crime problem. I wish the blip — I wish the rise that we are seeing in crime in America today were some sort of aberration or a blip. My best judgment . . . is that this is a dangerous, permanent trend that places the health and safety of the American people at risk.”[3] There has been a slight uptick in the homicide rate, but murder and other violent crime rates remain at the lowest they have been in nearly 40 years.[4] Again facts are warped to propel a campaign of fear-mongering.

We should be interested in improving public safety. But we should also be truthful both about the level of safety we currently enjoy and the true causes of threats to that safety. In the midst of the many demands on our fractured attention from the Trump administration, we must remain skeptical of a new campaign, founded on false premises, that tells us otherwise.

Ironically, in all this talk of public safety, the Trump administration has decided to attack one of the surest paths to improving it: immigrant-friendly policing strategies. So-called “sanctuary” policies have been shown to improve public safety while simultaneously decreasing poverty and unemployment rates.[5] One such policy is the Massachusetts Safe Communities Act, which is currently being considered on Beacon Hill. Governor Baker would be wise to rethink his opposition to the bill and instead support the measure as a means of promoting public safety and thwarting President Trump’s unfounded war on immigrants.

In the meantime, we must closely watch both the Department of Justice and this new ICE press office and challenge any “alternative facts” early and often. Our safety as a free republic depends on it.

*Philip L. Torrey is a Lecturer on Law at Harvard Law School, Senior Clinical Instructor of the Harvard Immigration and Refugee Clinical Program, and Supervising Attorney for the Harvard Immigration Project.

[1] https://www.washingtonpost.com/news/the-fix/wp/2015/07/02/surprise-donald-trump-is-wrong-about-immigrants-and-crime/?utm_term=.f20757a38ff5

[2] http://immigrationimpact.com/2015/07/08/immigrants-are-less-likely-to-be-criminals-than-the-native-born/

[3] https://www.washingtonpost.com/news/politics/wp/2017/02/09/sessionss-first-comments-as-attorney-general-inflated-u-s-crime-problem/?utm_term=.914ede8e0ec1

[4] https://www.washingtonpost.com/news/politics/wp/2017/02/09/sessionss-first-comments-as-attorney-general-inflated-u-s-crime-problem/?utm_term=.914ede8e0ec1

[5] https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-of-sanctuary-policies-on-crime-and-the-economy/.

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President Trump Overstepped his Authority on Sanctuary Cities

 

By Eddie Nasser*

In Executive Order No. 13768 issued January 25th, President Trump attempted to follow through on a major campaign promise to cut all federal funding from so-called “sanctuary cities.” Not only is the order bad policy, it also seems unlikely to withstand a challenge in court.

Section 9(a) of the order mandates that jurisdictions “that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” It directs that “the Attorney General and the [Secretary of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Section 1373 states that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

Within a week of the order’s signing, the City of San Francisco sued the administration in the Northern District of California. San Francisco stated three causes of action. First, it sought a declaration that the order complied with § 1373. Second, it asserted that § 1373 violated the Tenth Amendment and asked the court to invalidate the statute or enjoin the administration from its enforcement. Finally, San Francisco alleged that Section 9(a)’s conditioning of federal funds on compliance with § 1373 violated the Tenth Amendment. After the suit in California, the Lawyers’ Committee for Civil Rights and Economic Justice, a nonprofit advocacy group based in Boston, filed a similar suit in the District of Massachusetts on behalf of Massachusetts sanctuary cities Chelsea and Lawrence.

These suits promise to give the administration trouble. Both are wise to question the constitutionality of § 1373. In Printz v. United States, the Supreme Court held that the federal government could not compel state and local law enforcement officers to conduct background checks on gun purchasers as part of the implementation of the Brady gun control law. 521 U.S. 898, 925 (1997). The Court declared that “the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Id. at 935. Plaintiffs here allege that § 1373 requires exactly the kind of compelled implementation of a federal regulatory scheme that Printz prohibits.

If § 1373 runs afoul of Printz, the only legal basis for the Executive Order would be federal power under the Spending Clause. U.S. Const. art. I, § 8. When the Supreme Court ruled in 2012 that states could opt out of expanding Medicare under the Affordable Care Act, it issued clear guidance on what would be required for the withdrawal of existing federal funding. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2574 (2012). The Court outlined a three-part test. The federal government must give notice of the conditions of funding so that states and localities can choose to comply; there must be a connection between the funding in question and the conditions attached; and finally, even if such a connection exists, the conditions cannot be applied to funds that have been relied on for so long that the state or locality has no choice but to submit going forward. Id. Here, the order fails on all three prongs. The administration clearly did not give sufficient notice to the localities, the order does not indicate any specific constraints on which funding can or will be ceased, and the localities can show a sufficient a reliance interest such that compliance will be all but mandated.

Executive Order No. 13768 perfectly encapsulates the administration’s first month. The policy itself runs counter to strong evidence that granting sanctuary status promotes both public safety and health. Section 9(a) as drafted seems unlikely to withstand legal scrutiny, like another poorly executed and high profile mishap, and begs the question of why the administration insists on governing through unilateral action instead of the legislative process. President Trump’s sloppily drafted and hastily issued policies may already be alienating members of his own party, and his legal headaches are just beginning.

*Eddie is a 2L at HLS and an Online Editor for HLPR.

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How elites profit from the myth of American bankruptcy

By Harry Stein*

After years of hysterical warnings about a “looming fiscal crisis” from deficits under President Barack Obama, Republican leaders in Congress are suddenly willing to increase deficits for President Donald Trump. This deficit flip-flop is certainly hypocritical, but it also obscures the true nature of the threat posed by Trump.

Trump is taking office at a time when America’s fiscal system is extremely strong. The primary threat is not that America will go broke; it is that America’s fiscal strength will be wasted and abused. Trump and his allies in Congress are poised to privatize America’s fiscal strength to further enrich a wealthy few and give corporations more power over ordinary Americans.

Markets understand America’s fiscal strength, even though politicians whip up fears of a debt crisis to justify unpopular cuts to successful federal programs — a dynamic I call “fiscal hysteria” in a new article for the Harvard Law and Policy Review.

Interest rates on the Treasury bonds that finance the national debt have been falling for decades and are currently extremely low, which would not be the case if investors doubted whether the United States could pay back its loans. Furthermore, economists at Moody’s Analytics report that the United States has substantial capacity to incur more debt should it be necessary.

This means that Trump has inherited a federal budget that gives him tremendous power. Based on the tax plans from both Trump and House Republicans, the largest application of this fiscal power will be tax cuts for the wealthy and corporations. Rather than using these revenues to finance programs that benefit all Americans, these tax cuts concentrate even more wealth among the elite few.

Corporations would be further empowered by several of Trump’s fiscal policies. Private companies are already jockeying for contracts to build Trump’s border wall — a project that will likely to use eminent domain to seize land from its current owners. According to the conservative Daily Caller, “defense contractors couldn’t be happier” about potential profits from Trump’s military buildup. And privatization is also at the core of the infrastructure plans touted by Trump and some in Congress.

House Speaker Paul Ryan, a Wisconsin Republican, refuses to commit to preventing deficit increases from these costly policies, so progressives may be tempted to adopt the same fiscal hysteria that Ryan used so effectively to attack Obama. But this will only play into the hands of Trump and his allies in Congress.

Economist Jared Bernstein warns that, “Deficit hysteria — often promulgated by those who are happy to cut taxes without making up the revenue loss — has become a stalking horse for shrinking government under the guise of fiscal rectitude.”

This antigovernment agenda is another way Trump can use the fiscal system to give corporations more power. Budget cuts that undermine agencies responsible for financial supervision and environmental enforcement would empower Wall Street and big polluters. Rolling back federal health-care programs would increase the power of insurance companies over American families.

These cuts are extremely unpopular, which is why their advocates invoke the specter of a fiscal crisis to claim that the American people have no choice but to accept this agenda. Fear of a debt crisis is less effective to stop tax cuts, since nobody wants to give more money to a government that appears hopelessly broke.

The myth that America is somehow bankrupt may be the most pernicious political barrier blocking ambitious progressive policies that would make a real difference in the lives of the American people, such as making child care affordable or preventing lead poisoning from contaminated paint, soil, or water.

Congressional leaders used the myth of American bankruptcy as an excuse for inaction under Obama, and may now use the same myth to enact their agenda under Trump.

Good fiscal policy should expand opportunity by responding to changes in the economy. Progressives should not emulate the way that Ryan has shifted his posture on budget deficits now that a new political climate creates opportunities to empower a privileged few.

Progressives should also insist on fiscal sanity, which is more important than ever in an era of “alternative facts.” This means using honest numbers that provide a realistic look at the federal budget and the cost of new proposals. New long-term commitments — whether they are in the form of spending programs or tax cuts — should include a realistic plan to finance the costs.

Instead of falling into the trap of fiscal hysteria, progressives must focus on how Trump is squandering and privatizing America’s fiscal strength. The fiscal system should be a powerful tool to make the economy work better for all Americans. Trump is using it to enrich the wealthy and empower corporations.

*Harry Stein is the director of fiscal policy at the Center for American Progress.

This essay was originally published on MarketWatch.

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Executive Order 9066: #NeverForget

By Jessica Huey*

It was the worst day of his life. That was all he would ever say about it.

Looking at black and white photos of my great-grandfather, the stoicism etched in his expression is impossible to ignore. But to understand his story—that of a quiet, Japanese merchant who came to America with his wife to start a new life in the early 1900s—it becomes clear the extent to which living in America, filled with its golden grain and promises, also took its toll on him.

Like millions of America’s immigrants then and now, my great-grandfather chose a life that he could not anticipate. Silently, he stepped off the boat onto the soil of the Pacific Northwest with only the possessions he could carry. Together with my great-grandmother who would come later, they forged new lives with each step and encountered a future littered with seemingly endless pathways into the unknown.

America has long flirted with its immigrants, promising a life full of opportunity—of fairness under the law. Over the course of history, however, her temperamental outbursts have been indiscriminate; from the early Irish and Chinese immigrants to the Latino and Muslim immigrants of today, America has chosen when to define immigrants as “one of us” or “other.”

Not too long after many immigrants realize that the lottery to which they have a ticket is actually the beginning of a marathon race to the finish, they turn to what is within their power to contribute. Often led to believe that hard work is the missing link to making them “more American,” these immigrants soon discover that being paid under the table is just another way of separating them with invisible barriers from the rest. As they catch the last millisecond of strangers’ sideways glances, they begin to realize that something about them—the way they look, the way they eat, the way they greet others—doesn’t quite fit in. The culminating disappointment of these realizations juxtaposed to their dogged efforts to make America their new home creates an undeniable tension that begins to define the immigrant experience: what exactly does it mean to call America home?

My great-grandfather would get his answer the day the FBI came to his house late one evening to take him away from his family.

The anxiety had been growing for months. It hadn’t been long after Pearl Harbor when an icy veil of suspicion had descended on the Japanese American community in California. It started gradually with the absence of the friendly greetings on the street—invisible cues foreshadowing distance. Then came the signs; “Go home, Japs” they read. The hurt was easier to digest coming from strangers but impossible to mask when it came from neighbors. And then, straight from the mouth of President Roosevelt with Executive Order 9066, my great-grandfather and his family were to become prisoners of their home.

Over the more than thirty years he had lived in America, my great-grandfather had quietly become a leader in his community of Japanese Americans. In Stockton, California, he owned a small trucking company. His work was simple but he kept an eye on the others to make sure everyone was cared for. People gauged his silence for meaning, for direction.

It was one of his many friends that alerted him—the FBI would be coming after him within the next twenty-four hours.

The rest would be a blur. The FBI came for my great-grandfather with orders to take any prominent persons of Japanese descent to be questioned at the local jail. My great-grandfather would not be reunited with his family for months. In the meantime, his wife would be without a husband, and his three American citizen daughters in their twenties would be without a father, but their time would come too. Packing little more than what they had been able to bring to America, they were shipped to the swamps of Rohwer, Arkansas—a prison of another sort. Their careers, their possessions, their lives and American dreams uprooted in one fell swoop.

The suspicions intensified in the camps. The barbed wire that separated 120,000 people of Japanese descent, over two thirds of whom were the American-born children of Japanese immigrants like my great-grandparents, reminded them that America was still not truly their home. Their America was a different one: an America that asked its young sons if they would faithfully serve the country that had just put them and their families behind barbed wire.

By the end of the war, the only crime these 120,000 Japanese Americans were charged with was looking like the enemy. Backed by the government, America had decided that one group above all others warranted increased surveillance.

Raymond Tomikichi Ito—my great-grandfather—passed away long ago. I never had the chance to meet him, but I keep his story close. While the physical prisons have yet to surround another group of immigrants or American citizens since the Japanese internment camps of World War II, America’s hysteria with the “other” is something that should never be normalized. The harm of Executive Orders that promote discriminatory agendas has already been experienced. Let us not forget.

 

*Jessica Huey works as a social sector capacity builder in the Bay Area with FMA, a firm that supports nonprofit organizations strengthen their fiscal management practices. She received her Master’s in Public Policy from Harvard’s Kennedy School of Government and her B.A. from Brown University. Jessica is a fourth generation Japanese-American (Yonsei) on her mother’s side, and fourth generation Chinese-American on her father’s side.

 

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The Silencing of Senator Warren

By Charles Tiefer*

The press coverage of Senator Elizabeth Warren’s silencing under Senate Rule XIX was colorful, but sadly shallow. Much more daunting than a one-cycle news bite or a catchy hashtag, the incident in fact revealed that today’s narrow Republican Senate majority is poised to use procedure to subjugate the minority Democrats to an extreme.

In the news bite version of the story, the Warren silencing was simply a clash of personalities against a background of quaint Senate rules that date to times when the chamber functioned as a “club” of distinguished gentlemen who used aristocratic norms of address.

Warren was silenced after she read aloud from a letter by Coretta Scott King, who had harsh words about Attorney General Jeff Sessions (R-Ala.), whom she called a racist in her 1986 letter. Republican Majority Leader Mitch McConnell (R-Ky.) brought out the rarely used Senate Rule XIX to silence Warren. In his words: “She was warned. She was given an explanation. Nevertheless, she persisted.”

Rule XIX(2) states: “No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.” And, Rule XIX(4) provides that “f any Senator, in speaking . . . in the opinion of the Presiding Officer transgress the Rules of the Senate the Presiding Officer shall . . . call him to order; and when a Senator shall be called to order he shall take his seat, and may not proceed without leave of the Senate . . . .” In the authoritative internal Senate guide, Floyd M Riddick & Alan S. Frumin, Riddick’s Senate Procedure, the rule comes under the heading “Disorderly Language, Use of, in Debate, and Restrictions on.”

The Warren incident, examined closely, provides a glimpse into the workings of Senate procedure today—workings that are potent indeed. My research on trends in Congress for The Polarized Congress: The Post-Traditional Procedure of Its Current Struggles—published in 2016—suggests that the current party alignment has predictable consequences. A Republican president, Donald Trump, and a Republican House headed by the strong-willed Speaker Paul Ryan, put enormous pressure on Senate Republicans to bring their partisan proposals to undiluted effectuation. They will push Majority Leader McConnell with all their might to drive through nominations and bills, which will require McConnell to exert significant, centralized power over his institution given his bare majority of fifty-two Republicans to forty-eight Democrats.

Two key trends of the recent past will help strengthen that push, both of which were manifest in the silencing of Senator Warren. First, of course, the Senate has become more and more polarized over the past half-century, increasingly straining and fraying the institution’s bipartisan fabric.

Second, the pressures on the Majority Leaders, especially (but not only) Republicans, have produced a cycle: the minority party resists majority lordliness; the Majority Leader increases his power of control by adding to his “toolkit” and then deploys that power; the minority party further resists majority dominance; and so on. Republicans in 2001 moved a massive tax cut without Democratic support for the highest numbers; Democrats in 2009-2010 moved the Affordable Care Act without Republican support.

Interludes occur when the minority party has enough discipline to turn the tables and kill all majority bills, as the Republicans did in 2010-2014, when the Senate became an absolute graveyard of majority-backed legislation. Yet these interludes do not stop the accumulation of new tools and powers for Majority Leaders to use.

Consider the Senate of past periods up to, say, the 1990s. Power was shared between majority and minority parties in a way that kept a modicum of harmony between them. Senate Majority Leader Howard Baker (R-Tenn.) conducted the chamber in relatively close consultation with Senate Minority Leader Robert Byrd (D-W.Va.).

The minority party typically held off on full use of its filibuster power, partly because of the level of leadership consultation and partly because bills were fashioned to be relatively tolerable to at least some of the minority party.

Now fast forward to the Senate in 2017. The first weeks of Trump’s presidency saw unprecedented signs that the mere fifty-two majority senators would produce action even if it meant trampling the minority. To name just a few:

–Republicans talked incessantly of using budget reconciliation for many major bills. This is a procedure, originally meant only for measures to reduce the deficit, which has evolved into a broad way to enact bills with any fiscal nature. Legislation considered under reconciliation procedures does not need sixty-vote cloture to overcome minority resistance, just a fifty-one-vote majority to pass. Reconciliation was made to order for a situation with a hard-driving House and a president whose party in the Senate has a bare fifty-two-vote majority. It was astonishing how many pieces of the Trump agenda Senate Republicans consider suitable for reconciliation, from the repeal of the Affordable Care Act to individual and corporate tax cuts.

–President Trump called on Republicans to use the “nuclear option” to crush Democratic resistance to the confirmation of Neil Gorsuch to the Supreme Court seat formerly occupied by Justice Antonin Scalia. Democrats seethed at how their own nominee to that seat, Merrick Garland, was last year refused even a hearing.

–Current Senate rules protect the right of the minority party to filibuster Gorsuch absent sixty votes for cloture. The “nuclear option” is a procedural maneuver for radically reshaping the Senate rules to reduce the number of Senate votes needed for cloture for a particular object. President Trump’s early demand to see the nuclear option used for Gorsuch showed utter disrespect for the Senate as an institution made of bipartisan cloth. Trump’s demand would not only ram through this particular nomination; it would also squelch the Democratic minority’s voice when subsequent Supreme Court seats open up over the next few years—seats for which Trump may name someone even further to the radical right, such as Judge William Pryor.

–Trump Cabinet nominees were rushed through the Senate, often by denying the rights of the minority. When Democrats demanded that financial documentation be completed so questions could be put to the nominees at hearings, they were disregarded. When Democrats had questions at hearings, the time for questioning was truncated. When Democrats exercised their right to stay away from the committee meetings to report the nominations to the floor, the nominations were reported in violation of longstanding quorum rules.

–Trump Cabinet nominees were approved by the Senate over opposition that would have certainly blocked them in the past. The day before the silencing of Elizabeth Warren, the Senate voted on Secretary of Education nominee Betsy DeVos. The senators split fifty-fifty on her nomination, with Vice President Mike Pence having to make the tie-breaking vote. (Unlike most—but not all—of the procedures discussed here, the Senate that made the change was a Democratic-majority chamber, which decided to reduce to a bare minority the vote needed for President Obama’s nominations. That change excluded the Supreme Court.)

–They did not get much attention, but in the background in early 2017 loomed two unusual processes by which the Republicans would swiftly redirect government spending, particularly to pump up defense outlays, without waiting for the regular 2017-2018 budget. Last December, the House and Senate financed the government only through April 2017, so that the new Republican president and Congress could immediately put their stamp on appropriations.

–In addition, an “emergency supplemental” spending bill is to be considered soon by the Trump Congress. Again in violation of regular order, which prescribes that such a bill be used for near-term unpredictable spending on active conflicts, this measure will probably be loaded with billions of dollars of long-term defense spending – spending that should have no place in a “war supplemental.”

So when Senator Warren was silenced by Rule XIX, the matter concerned not just a single senator speaking out about one controversial nominee. Warren was surrounded by a high, swirling tide of Republican-manipulated, inappropriately domineering procedures.

Senator Warren’s floor effort is a crucial point in the cycle discussed above. In the days immediately before her silencing, Republicans pounded their chests and proclaimed their intention to use tough majority tactics.

Senate Democrats felt some of the oppression experienced by their minority counterparts in the House.

Normally, just as a Senator could say anything she wanted about those in executive office, a Senator could say anything about a nominee to an executive office. However, since Sessions was still a Senator, he was the only kind of nominee for which Rule XIX could be invoked. Of course, Sessions was still a senator only because McConnell would not let him resign until after Betsy DeVos’s confirmation, for which the Republicans needed every single vote to make it to the fifty-fifty tie.

Conversely, the cycle of the Senate’s evolution traditionally meant that after the majority party had sufficiently flexed its muscle in ways like rushing confirmations and crushing filibusters, a Senate Democrat like Warren would take some kind of a stance to assert minority rights. Also traditionally, in the absence of Senate majority party muscle-flexing a senator who was warned to cease and desist would not continue to make rough statements about another senator – that would be seen as not just disrespect toward the other senator (who might nevertheless well warrant the comments) but also as a danger that could rend the fabric of the institution.

In today’s cycle, however, the minority already experiences the Senate fabric as frayed, subjected as it has been to restrictions, provocations and general disempowerment. So even though warned, the minority persists. There is little point in being careful with a cloth that has already been torn.

To some extent, the die now is cast: the Republican majority is expected to run roughshod over the minority. As noted, reconciliation can pass many bills by a bare majority. Were the minority to hold its ground, the step may be taken to allow Supreme Court nominations—plural—to be confirmed by a bare majority.

But there remains a zone of potency for the minority party, if it can hold fast to 41 votes to defeat cloture. In particular, the Senate has a powerful rule, the “Byrd Rule,” which dates to 1985, that sharply limits bills under reconciliation instructions to fiscal provisions only, not to non-fiscal legislation.

What would a unified Democratic minority be able in this way to filibuster in this way, in 2017 and thereafter? “Repairing or replacing” the Affordable Care Act would require sixty votes, as much of it is non-fiscal legislation. A partial repeal or a rewriting of Dodd-Frank bank-regulating legislation would require sixty votes. Moving through any school-voucher legislation from Betsy DeVos would require sixty votes, as would repealing the aspect of the Clean Air Act that deems greenhouse gases to be pollutants. Democrats should stay united enough, as Republicans did in 2010-2014, that such bills may pass only in bipartisan versions.

The silencing of Senator Warren pursuant to Rule XIX was much more than a colorful, one-day news story. It offers a window into the current dynamics of the Senate, exposing the strengths and vulnerabilities of the majority and minority parties.

*Charles Tiefer is professor at the University of Baltimore School of Law. He is the author of Congressional Practice and Procedure (1989) and The Polarized Congress (2016). He was Assistant Senate Legal Counsel and House General Counsel.

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Taking on Debt: Advancing the Discourse on America’s Bottom Line

 

by Ryan Cohen and Shane Hebel, Harvard Law & Policy Review, Volume 11 Editors-in-Chief

During this time, when our nation appears so divided, there is one thing that we all share, whether we are Democratic or Republican, teacher or coal miner, voter or U.S. President, from the coasts or from Appalachia. Debt. We may be a nation of red, white, and blue, but mostly, we are just in the red.

Our students are in debt (as graduate students, we can attest to that from personal experience). Our households are in debt. Our cities are in debt. Our nation is debt. Even our new president is in debt—billions of dollars of it. Collectively, Americans are $12.35 trillion in the hole. And that is not even including our $19 trillion national debt. In the past decade, U.S. household debt has risen 11 percent. Today, the average household with any debt at all is $132,529 in debt, including mortgages. Meanwhile, student loan debt has increased 186 percent.

Debt is so pervasive and central in American society that The Week published an article late last year entitled How the Politics of Debt Explains Everything that described the “underlying political economy” as “a creditor/debtor stand-off where the creditors have the whip hand” and attributed Donald Trump’s ascendency to his “riding debtor anger against creditor strength.”

While strategies to address debt divide us along partisan lines, there is bipartisan recognition that debt–in some form or another–is a problem. Rep. Brian Babin (R-TX) has said: “Would I like to see [the budget] balance? Certainly. Absolutely. I’ve got 13 grandchildren, and I don’t want to see them buried under $30 trillion of debt.” Focusing on individual debt, Sen. Elizabeth Warren (D-MA) has said: “College students today are drowning in debt, and it is hurting them and hurting our economy. We must find a way to help families pay for college without condemning them to a lifetime of indebtedness.”

Debt is a prop of political posturers on both sides of the aisle. But behind the headlines, the green screen and the rhetoric lie important and timely questions. What are the facts about debt and how it affects everyday Americans? What do those facts mean for the lives of the people that our government was elected to serve? And, given those facts, how should policymakers and lawyers craft and interpret laws and policies around debt that advance the vision of an inclusive, just and thriving America?

Those are some of the questions that Harvard Law & Policy Review Volume 11.1 aims to answer. The issue, America in Debt: Borrowers, Creditors, and Forgiveness in the Age of Austerity, which will be released here tomorrow, focuses a progressive lens on the subject of debt, zooming from the micro—the individual, the consumer, the student—to the macro. With authors ranging from a State Attorney General to practitioners, policy analysts and academics, and drawing the expertise of experts who have spent decades working on these problems to data collected by the Consumer Financial Protection Bureau, we have attempted to put together an issue that addresses concerns of everyday Americans.

Harvard Law & Policy Review strives to provide a forum through which academics and practitioners can engage in thoughtful, respectful discourse on the challenges that affect our nation. For this issue, we strove to provide a resource for those in Washington and in the state capitals as they tackle this monstrous challenge. The debt crisis is a problem that impacts everyone living in this country, and we are honored to contribute, in our own small way, to the discourse that will help drive towards sustainable solutions.