Truth v. Myth: Biden Executive Order on Advancing Racial Equity takes on Trump EO on same(?)

Posted on February 1, 2021. Filed under: Civil Rights, Politics, three branches of government, Truth v. Myth, U.S. Constitution | Tags: , , , , , , |

As 2020 drew to a close, we did a Truth v. Myth close-reading series on the Trump Administration’s September 22, 2020 Executive Order on Combating Race and Sex Stereotyping.

Today, as 2021 rolls into its second month, we bookend that series with this: an examination of the Biden Administration’s January 20, 2021 Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, which you can find here on the official White House site.

As you’ll recall, the Trump Order was a naked attempt to misrepresent anti-racist diversity training in government and education as a “destructive ideology”. As we say in part 2 of our previous series:

“This destructive ideology is grounded in misrepresentations of our country’s history and its role in the world. Although presented as new and revolutionary, they resurrect the discredited notions of the nineteenth century’s apologists for slavery who, like President Lincoln’s rival Stephen A. Douglas, maintained that our government “was made on the white basis” “by white men, for the benefit of white men.” Our Founding documents rejected these racialized views of America, which were soundly defeated on the blood-stained battlefields of the Civil War. Yet they are now being repackaged and sold as cutting-edge insights. They are designed to divide us and to prevent us from uniting as one people in pursuit of one common destiny for our great country.”

–The duplicity here makes one want to cry out. Here is the pretzel: acknowledging racism at work in America today is actually racist. To bring up race is, somehow, to have a “racialized view” of America, and, beyond that, to bring up racism is to be an apologist for slavery… Fighting racism and working for civil rights is also not racist. To claim that fighting racism forces people to think about race, and only race, and therefore is racist, can only be the product of a deep stupidity or a deep evil. It’s very hard to say which would be worse.

It’s unclear how much traction this Order got, since it was issued in September 2020 and now a new Administration has begun, so it’s not clear how much damage has to be undone. But let’s take a look through the new Biden Order and see what it holds, starting with Section 1: Policy.

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered: 

Section 1. Policy. Equal opportunity is the bedrock of American democracy, and our diversity is one of our country’s greatest strengths.  But for too many, the American Dream remains out of reach.  Entrenched disparities in our laws and public policies, and in our public and private institutions, have often denied that equal opportunity to individuals and communities.  Our country faces converging economic, health, and climate crises that have exposed and exacerbated inequities, while a historic movement for justice has highlighted the unbearable human costs of systemic racism.  Our Nation deserves an ambitious whole-of-government equity agenda that matches the scale of the opportunities and challenges that we face.

–Just about every new attempt at guaranteeing civil rights in America begins with an encouraging statement about how much we’ve already done, how peerless we are as a nation in working to offer liberty and justice to all. Sometimes this can have the chilling effect of making the new call for action seem like an extra, a nice-to-have rather than a need-to-have in a country where fundamental justice is already established, and now we just want to tie up a few minor loose ends.

This Order, then, is refreshing in its limiting that encouragement to a single short sentence and then moving on to acknowledge in plain language that we are not doing well enough, we are not in a good place and just need a slight push to an even better place. We have slipped backward in America over the past 40 years, as the backlash against the civil and human rights wins of the 1950s-70s began with Reagan and relentlessly gained momentum wit the help of both Bush presidencies, the Tea Party during the Obama presidency, and the Trump presidency. Those who call liberty and justice for all treason led an attack on our Capitol on January 6, 2021, and their supporters and members in Congress sit safely, in no fear of censure from their colleagues, refusing to impeach President Donald Trump for inciting a treasonous coup. We’re in a very dangerous place and that has not come out of the blue. Complacency about how strong our democracy is allowed too many Americans to treat right-wing extremism as normal and powerless, even as its basic structures fell apart.

A case in point is the very Executive Order we’re reviewing here. The Executive Branch–the presidency–does not legislate in our three-branch system. The Legislature–Congress–writes and passes laws. The Judiciary–the courts–test whether those laws are constitutional, and can overturn them if not. The president does not have the power to write laws. They do have the power to write Executive Orders: directives describing how laws should be enforced. They are part of the president’s discretionary power. No EO can violate the Constitution, and all EOs are subject to Judiciary review to make sure that they don’t. Basically, once a law is passed, an EO can determine how, and how seriously, it will be enforced.

Most presidents use EOs are low-key and uncontroversial: formalities (to inaugurate Presidential Commissions or Presidential Advisory Councils, for instance); to designate emergencies (declaring a city or region a disaster area after a hurricane or flood), to award an honorary medal (the Purple Heart) or to create task forces (for ecosystem restoration or terrorism prevention).

Other EOs are major: Trump’s “Muslim ban” of January 2107 prevented citizens of seven Muslim-majority nations from entering the U.S. until it was overturned as unconstitutional by the Supreme Court in June 2018.

EOs remain in force until they’re canceled by the president who issued them, or their successor; they’re found to be unconstitutional by the courts; or they hit their expiration date (if they have one). And therein lies the problem we are experiencing, and the challenge to our democracy. During the Obama presidency, the use of EOs fundamentally changed for the worse.

Faced with a Republican-led Congress that openly stated its intention to block any legislation the Democrats introduced, President Obama began writing Executive Orders to get around Congress. A good example is his EO to grant limited amnesty to illegal immigrants brought to the U.S. as minors (the “Dreamers”). Congress would not pass immigration law that protected this population, so Obama went around Congress. While the end goal was just and good, this use of the EO was dangerous because it set protections in place that were then quickly and easily overturned by the next president. It also allowed Congress to abdicate its role of writing laws. This erases the check between Legislature and Executive, and allows Congress to remain impotent and harmful. Whether an EO promotes justice or obstructs it, it cannot and should not substitute for legislation.

When it does, we go into a deadly pendulum-swing, where a Democratic president signs Orders that are then revoked by a Republican president, who then signs new Orders that are revoked by a Democratic president, and so on. Real American lives are impacted, as protections come and go. And Congress lies stagnant and dormant, refusing to take action. Americans begin to look to the president for laws. This is not how our system works. It turns the president into a monarch or a dictator.

So while we applaud this Biden EO so far, the fact that the first thing the new president did was sign 19 EOs, many of them deliberately overturning Trump EOs, is unsettling. The one we’re examining now is a case in point: this Biden EO on Advancing Racial Equity seems clearly positioned to overturn the Trump EO on Combating Race and Sex Stereotyping. The nation cannot be whipsawed back and forth between policies for decades without our very democratic system deteriorating under the strain and the neglect.

With all that said, we’re going to keep close-reading this EO, but in the back of our minds we know how fleeting it may turn out to be, and how negative and anti-democratic an EO it may provoke from the next Republican president in 4 or 8 years.

It is therefore the policy of my Administration that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.  Affirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government.  Because advancing equity requires a systematic approach to embedding fairness in decision-making processes, executive departments and agencies (agencies) must recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.

–This is a welcome return to logic, history, and reality after the double-speak of the Trump EO. Here, the obvious is acknowledged: America has allowed systemic, institutional racism to create inequality of opportunity for those who are not white. This honest assessment was rejected by the Trump EO as a “malign ideology [now] migrating from the fringes of American society and threatens to infect core institutions of our country. Instructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country, even in components of the Federal Government and among Federal contractors.” As we said then, we say now, that this is more of the same idea that acknowledging race and racism is racist, that we should all be allowed to be “color-blind”. This phrase, as used in this Order, represents a false assumption, which is that America, or at least most Americans, are not racist and do not ever made judgments about people based on their race. Therefore, being told to think about race is ruining this paradise by introducing race-based thinking, and therefore, racism.

Again, it’s a visceral relief to read the Biden EO, but one tempered by the knowledge that this is just an Executive Order, not a law passed by our Congress, and therefore it’s a frail and temporary bulwark against injustice.

By advancing equity across the Federal Government, we can create opportunities for the improvement of communities that have been historically underserved, which benefits everyone.  For example, an analysis shows that closing racial gaps in wages, housing credit, lending opportunities, and access to higher education would amount to an additional $5 trillion in gross domestic product in the American economy over the next 5 years.  The Federal Government’s goal in advancing equity is to provide everyone with the opportunity to reach their full potential.  Consistent with these aims, each agency must assess whether, and to what extent, its programs and policies perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups.  Such assessments will better equip agencies to develop policies and programs that deliver resources and benefits equitably to all.

–It’s depressing that the idea that helping the poor helps everyone is so often rejected by Americans today, while the idea that helping the rich helps everyone is so eagerly embraced. Here, the Biden EO frames equality of opportunity in positive economic terms to help reach those who believe that rich Americans should fund economic growth (through “trickle-down” or “job creation”) out of their largess, which requires the rich to become even richer, to even astronomical levels. Instead, all Americans could help each other, which redistributes not wealth, but the opportunity to gain wealth, to all.

How can advancing racial equity make this happen? We’ll find out next time.

Next time: Section 2 – definitions

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Who has ultimate authority: the president or the courts?

Posted on February 9, 2017. Filed under: Truth v. Myth, U.S. Constitution | Tags: , , , , , , |

A simple question, being asked by many Americans as the courts deliberate over the president’s travel ban, that alarms us to the core. This is basic three-branches-of-government data. We should all have learned this in grade school. But since civics education has been eliminated in our schools, most Americans seem to lack the most basic understanding of how our government works.

And that’s so dangerous. It allows people to believe the president when he says the courts are traitorous and should just do as he says “because it’s right”.

We’re rerunning our post on this issue in hopes of answering that simple and fatal question for America. We originally ran it nearly a decade ago, in the context of state supreme courts ruling on gay marriage. Every time you read “the legislature” below, sub in “the executive”, that is, the president, and it addresses the issue with Trump today. Sub in “tyranny of the president” for “tyranny of the majority”, and you are also on track.

 

We were listening to the news and heard someone being interviewed say that an issue in their state had been decided by the state Supreme Court, and therefore the issue “was solved by the courts, not by democracy”.

This idea that the judiciary, one of the three branches of our government as described by our Constitution, is somehow not part of our democratic system is a baffling one. We are forced to repost our original rebuttal of this idea, from 2008, here in the continuing effort to fight this misconception:

The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.

A review of the constitutionally described role of the judiciary is in order. The judicial branch exists to review laws, acts, and executive orders to ensure that they are constitutional. If those laws, acts, and executive orders are not constitutional the courts must overturn them. This allows the judiciary to preserve our democracy in a crucial way—stopping tyranny of the majority.

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule–the basis of democracy–ends up perverting democracy by forcing injustice on the minority of the public.

For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power, through their members of Congress, to oppress the minority of Americans who were black, or who were white and wanted desegregation.

In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.

The judiciary was created to break this grip of majority tyranny. The legislature–Congress–cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.

If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.

This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

We heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.

The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose. See Dispatches from the Culture Wars for an excellent post demonstrating this.

So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.

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