Trump’s Proposal to Ban All Muslims: It’s Still Not Okay

Ashley Rotchford, Law & Public Policy Scholar, JD aniticipated May 2018

 “It is only in our darkest hours that we may discover the true strength of the brilliant light within ourselves that can never, ever, be dimmed” – Doe Zantamata

Before many of our ancestors ever came to America, the first Muslim arrived on this soil that we now call the United States. Muslims have been in this nation for over 400 years, and yet, to many white Americans, “they” are foreign and “they” don’t belong. Since September 11th, 2001, Muslims worldwide have been blamed for every act of terror and every act of hate perpetrated by anyone who claims to follow the tenets of Islam.

It is ironic, really, to see so many white Americans so quick to cast blame on an entire faith. The largest domestic terrorist organization ever to exist in the U.S. was the KKK. Its members where white Christian men. They burned, murdered, tortured, abused, and treated as less than human any person who did not fit their ideals. In 86 years, the KKK lynched over 3,446 Black Americans. Yet no one blamed, or blames, Christianity as a whole.

In 2015 now President-elect Trump first proposed to ban all Muslims from the United States. He also once claimed in an interview at 27% of all Muslims were “very militant” (in reality only .00625% of Muslims identify as extremist). The theory behind such a ban is that it will prevent future terrorist attacks in the United States. This is inherently inaccurate. Statistics show that 94% of terrorist attacks carried out in the United States between 1980-2005 have been by non-Muslims.

President-elect Trump recently confirmed his proposal post-election. Even though the Religion Clauses of the First Amendment were designed to prevent such persecution based on religion, the majority of Americans supported, and still support, the proposal. As James Madison once warned, “[i]n our Governments, the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from the acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of constituents.” In essence, Madison worried that the power of the majority could trample the rights of the minority.

A ban of all Muslims would constitute a violation of the Establishment Clause, notwithstanding the President’s vast powers under the Immigration and Nationality Act. The Establishment Clause bars the government from favoring one religion over another or disfavoring one religion over another. A proposal that explicitly bars Muslim immigrants would send a strong message that the United States disfavors Islam over other religions, such as Judaism and Christianity.

The response to such a charge will no doubt be that neither Jews nor Christians are a “danger” to American society and values. In reality, however, neither are Muslims. There are over 1.6 billion Muslims in the world. They make up almost a quarter of the world’s population, yet just over 106,000 can be identified as extremist. While nine in ten news articles about Islam portray it as violent and extremist, a person is as likely to die from being crushed by a television or furniture as from a terrorist attack.

After the initial call to ban all Muslims, there was a marked uptick in hate crimes against Muslims, or people that just happened to have brown skin. In one instance, several twelve-year-old students attacked a Muslim student during recess. In another, a Queens Imam and his friend were executed while leaving a mosque after Sunday prayers.

Since the election, reports of hate crimes have once again increased (over 400 hate crimes have been reported since Election Day), with the attackers often professing support for the President-elect and his policies. Muslim-Americans across the nation have been sharing the hatred, and fear, they have experienced since November 8th on social media platforms. One student in California was assaulted by a man who forcibly yanked her hijab off her head; choking her. One woman at Walmart had her hijab pulled off her head and was told to “go hang yourself with it around your neck.” A truck was seen driving around in Florida with the words “All Muslims are Terrorists. Deport Them All” written on its back windshield.

FDR once famously said, the “[o]nly thing we have to fear is fear itself.” At a time like this, those words could not be less true for American Muslims. I want to remind every American Muslim that by continuing to live the lives you deserve to live every day, you prove them wrong. By living up to your potential, you prove hate wrong. By standing up against injustice, you prove Islamophobia wrong.

And remember that you are not alone. While the country is seemingly divided, there are many standing in the same corner with you—people who realize that everyone deserves and is entitled to their inalienable rights. We stand with you, and we will fight alongside you—not only for you, but for everyone in this nation whose rights are currently under attack.

Finally, do not give up. Hold tight to the hope and knowledge that things will get better.

Hope is important because it can make the present moment less difficult to bear. If we believe that tomorrow will be better, we can bear a hardship today – Thich Nhat Hanh

The Electoral College and the Two-Party System

Greg Mazmanian, Law & Public Policy Scholar, JD anticipated 2018

On November 9, 2016 at 2:58am EST, Hillary Clinton called Donald Trump to concede the presidential election. This event concluded one of the most unexpected electoral victories in American history. The campaign that preceded this election was characterized by harsh rhetoric that exacerbated the deep divisions within the country, as well as the division within both major parties. A Pew research study found that 53% of Trump voters and 46% of Clinton voters were casting their votes against the other candidate, rather than for their candidate. Despite the widespread unfavorable opinions of the two main party candidates, there was no huge spike in support for third-party candidates. Gary Johnson, the Libertarian party candidate who was on the ballot in all 50 states and the District of Columbia (DC), only garnered 3% of the popular vote. Jill Stein, the Green party candidate who was on the ballot in 45 states and DC, only received 1% of the popular vote. Americans did not vote for third-party candidates because of the truism that a third-party candidate cannot win a national election. The reason for this is the Electoral College and it is time, and they are right. The reason behind this lies in the Electoral College system.

The Electoral College system drifts in and out of the American consciousness every four years, especially when a candidate wins the Electoral College, but loses the popular vote. With the results of the 2016 election, this has now happened five times in American history. This first time occurred in 1824 when John Quincy Adams defeated Andrew Jackson, despite Jackson having more votes. It most famously occurred again in 2000, when Vice President Al Gore earned 537,000 more votes than George W. Bush. At last count, Secretary Clinton leads President-elect Trump by 200,000 votes.

The current Electoral College system was created in 1804 by the 12th Amendment. It replaced an earlier model that no longer worked given the rise of political parties. Under the current system, every state receives a number of electors equal to their total number of members in the House of Representatives plus two for their Senators. Those electors then cast their votes for President, as determined by the popular vote of the state. Those votes are then sealed and sent to Congress to be counted and, “[t]he person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed . . .”(emphasis added). It is this mathematical requirement that produces the all-important number of 270 electoral votes that are needed to secure the Presidency because there are currently 538 total Electoral College votes. It is this majority requirement that dooms third party candidacy in the United States.

If no candidate wins a majority of the Electoral College, then the vote goes to the House of Representatives where the members cast their votes as states. If no candidate receives a majority in the House, the vote then proceeds to the Senate, where the 100 members of the Senate vote on the Vice-Presidential candidates. The winner of the majority becomes President. This hierarchy of Constitutional election law was depicted in the most recent season of HBO comedy series VEEP, but, in the entire history of our country, the House has only decided three elections (1801, 1825, and 1877) and the Senate has decided none.

The structure of this system is that it makes it almost impossible for a third-party candidate to be elected. Even if a third-party were to garner one-third of the Electoral College, the final vote would always end up being decided by Congress. There, the vote would face the same majoritarian issues in the House and the Senate where the two-party system rules. The result could potentially be a form of Presidential gridlock where it would be impossible for a candidate to be elected without vote trading.

The Electoral College system may have made sense in 1804, but it no longer makes sense today. Ten states and the District of Columbia have already ratified the National Popular Vote Interstate Compact that will bind their electors to follow the national popular vote when the states that have joined command a majority of the Electoral College. A Constitutional Amendment would provide more permanent change. It could either modify the current system or replace it entirely. For example, one possible modification to the current system would be to elect the President based on a plurality of votes of the Electoral College. This change would allow for the rise of a third party, but does not solve many popular vote issues. A full replacement of the Electoral College would switch to a plurality of the national popular vote. Under such a system, individual states would continue to manage elections, but the candidates would have to run for election across the entire country and not just in certain “battleground” states.

In the end, any enduring change to the Electoral College must be accomplished by a Constitutional Amendment, which is a true rarity in the American system. Although it will be difficult to make the change, it is clear that something needs to be done sooner rather than later.

The Death of Republican Obstructionism?

Dean Krebs, Law & Public Policy Scholar, JD anticipated May 2018

Unified obstruction has been the sole Republican strategy since President Obama took office. According to David Frum, speech writer for former President George W. Bush, there was going to be “[n]o negotiations, no compromise, nothing” with the Democrats. All that mattered, former Ohio Senator George Voinovich stated, was that “[i]f [Obama] was for it, we had to be against it.” A couple years after Obama took office, Mike Lofgren, former Republican Congressional staffer, described the GOP’s envisioned end-game of grinding the government to a halt.

Should Republicans succeed in obstructing the Senate from doing its job, it would further lower Congress’s generic favorability rating among the American people. By sabotaging the reputation of an institution of government, the party that is programmatically against government would come out the relative winner.

Armed with this game plan, the GOP wasted no time to spurn Obama’s first bi-partisan effort, the 2009 emergency economic stimulus bill, by ordering Republicans to unanimously vote it down. It would be the first of many. David Aexlrod, Obama’s political aide, would later comment that “[o]ur feeling was, we were dealing with a potential disaster of epic proportions that demanded cooperation. If anything was a signal of what the next two years would be like, it was that.”

The GOP’s obstruction game, however, was not entirely unexpected. Indeed, renown political scientist Barbara Sinclair found that “extended debate-related problems,” such as threatened or actual filibusters, in the Senate increased from 8 percent of major legislature in the 1960s to 70 percent when Democrats retook Congress in 2006. However, total obstructionism was unprecedented.

Obama expressed his frustrations at a Democratic Congressional Campaign Committee event in 2014, after nearly 6 years of GOP’s hindrance.

Their willingness to say no to everything — the fact that since 2007, they have filibustered about 500 pieces of legislation that would help the middle class just gives you a sense of how opposed they are to any progress — has actually led to an increase in cynicism and discouragement among the people who were counting on us to fight for them.

To put Obama’s comments into perspective, Jon Perr commented that, in 2013, the GOP “had filibustered 27 of Obama’s executive branch nominees, compared to just seven during Dubya’s eight years in office.” They also blocked legislation at twice the rate than the previous Congress and filed twice as many clotures motions. Furthermore, the GOP held the country’s credit hostage with a debt-ceiling crisis in 2011 and 2013 that threatened a possible default on the national debt.

Despite these hampering actions, Republicans took it one step further in 2016 by blocking the nomination of a new Supreme Court Justice. The failure to consider Judge Merrick Garland should have come to no surprise considering the Republican-controlled Senate in 2015 only managed to confirm 11 federal judges, the lowest since 1969; a single appeals court judge, the lowest since 1953; and “judicial emergencies” had risen 160%, to 31. Indeed, in a report released earlier this year regarding the GOP’s failure to appoint Obama’s nominees, Senator Elizabeth Warren articulated that “[t]he idea that Senate Republicans are willing to leave our highest court short-handed for nearly a year seems shocking. But the fact is that, for more than seven years, they have waged an unrelenting campaign to keep key positions throughout government empty.” Warren’s report highlighted a Congressional Research Service report that found judicial confirmation times had doubled under the Obama administration and a report from the Alliance for Justice that concluded, “In sum, Republicans have a sustained record of using [S]enate procedure to block even uncontroversial nominees throughout the Obama presidency.”

The Republicans’ concerted efforts were not only directed at the judicial branch. They also worked to stall or halt nominations for agency appointments, which left more than a 100 vital, senior positions empty in agencies critical to properly run the government. Warren commented that “there were more cloture attempts on non-judicial nominees during President Obama’s first six years in office than in the 28 years proceeding the Obama administration.” Agencies and positions affected by these impediments have included, in part, the EPA, CFPB, FHFA, USAID, NLRB, Secretary of Defense, Secretary of Labor, and Attorney General.

Suffice to say, the GOP perfected the art of obstruction over the past 8 years. Saying “No” to the Affordable Car Act by attempting to repeal it, at least, 63 times, surely gave them plenty of practice, as well as their multiple attempts to defund Planned Parenthood and the countless delays of judicial and agency nominees. In so doing, they managed to accomplish their goal, but they also greatly damaged the reputation of Congress, which has a current approval rating of just 11 percent.

What still remains to be seen is whether a party that is “programmatically against government,” has intentionally sabotaged the legislative branch by failing to compromise, and sabotaged the executive and judicial branch by failing to nominate appointed judges and officials, will have the capacity, or even desire, to effectively run the government when given control of the very branches they sought to undermine. Or, even if they do, will the opposing party let them.

America will soon find out with the Trump administration. An administration that had 16 Republican Senators withdraw support; an administration whose policy positions, if they exist at all, are in constant flux; an administration that has belittled women, minorities, and military personnel; an administration where the future President may want to “brand his administration — but not actually run it”; an Administration that, unlike previous Republican Presidential nominees, is run by someone the Democrats do not believe is competent. It is this Administration, with control of the other branches, that the GOP has, against all odds, been given free rein to interpret what exactly making American great again will mean. With this privilege, the GOP, President-elect Trump, and whoever will actually be running the Administration, can no longer hide behind obstructing the Democrats at every turn; they no longer have an excuse to not do their jobs.

Yet, government obstruction can come in many forms, not simply through interacting with the opposing party. The Greeks believed that the purpose of government was to improve the lives of citizens, a definition that both Democrats and Republicans can get behind, although their interpretation would widely vary. While the GOP will push for smaller government with the good faith belief that this will improve American lives, it bears remembering that our nation is built on laws and precedent that demands respect, even in the face of fervor that desires to upheave the established order. Not only would abruptly reversing, destroying, or fundamentally altering existing laws, treaties, regulations, or duties of agencies or institutions cast a shadow of instability across the nation and to our allies and adversaries, doing so threatens to disenfranchise countless Americans who depend on them to protect their livelihood, integrity, and constitutional rights. In its grandiose pursuit to Make America Great Again, the Trump Administration and the GOP must be cautious to not marginally improve the lives of a few at the significant detriment of many. Doing so would surely still represent an obstruction of government.