How do we reconcile our gratitude for a country that seems bent on oppressing us?

As I reflect on Black History Month this year, I have so many conflicting thoughts and memories. As a young child in Brooklyn and Queens, NY, I had a small American flag that I was so proud of and which my family knew not to touch. I protected it with all the (limited) power and might that I had. Since childhood, I have always thought of the United States as an amazing country. After all, I saw first-hand how good a country it was to my family and me. My parents sacrificed plenty to make it to this country from Guyana. Neither of them had a high school education, but they came to the United States to ensure all their future children would have endless opportunities. And fortunately, we did and continue to have such opportunities.

I hold this gratitude for and faith in my country while at the same time confronting, every day, the defining impact of slavery and racism on my country and its laws.  Experiencing the past four years, in particular, with a racist, sexist president, working with all his enablers to use the power of government to oppress, disenfranchise, and divide, and seeing him garner 74 million votes in the 2020 election, has been heavy and difficult. I’ve been struggling to explain to my mom how and why these past four years, including the January 6th home-grown insurrection on our nation’s capital, have been possible in the country in which she sought and received refuge. How do we reconcile our gratitude for a country that seems bent on oppressing us?

I’ve recently re-read The Fire Next Time by James Baldwin. In the letter to his nephew, Baldwin writes a line that resonates with me: “You were born into a society which spelled out with brutal clarity, and in as many ways as possible, that you were a worthless human being.” This is the hard truth that is no less true today than when Baldwin wrote it. Our country's present day is rooted in our country's history of slavery, racism, and oppression. We do not remedy the harm of that history by ignoring it or downplaying its relevance to our present day. We can and we must be able to both celebrate the achievements and aspirations of this country while also doing the hard work of reckoning with and remedying its legacy of racism.

Bryan Stevenson has been speaking about truth-telling for some time. I agree that to reconcile with the impact of racism today, we must tell the truth about its defining role in our country's yesterday. It’s time for all of us to play a role in getting to the heart of our country’s origins. ACS will begin doing just that in this, our 20th anniversary year. ACS’s principal theme this year is reckoning with our country’s deep historical roots and modern manifestation in racism, including our founding document, the Constitution. Talking truth to power includes addressing how our Constitution, in its various incarnations, has been used to enshrine, legitimize, and perpetuate racism. It is our hope that this is just the beginning to truth-telling. It will be a long, difficult and likely painful journey, but it’s necessary if we hope to ever have a shot at reconciliation.

I call on our entire network to join us for this critical journey ahead. Undertaking this necessary and overdue work with the fantastic ACS network makes me proud to hold our country’s flag as we work toward better days and a more inclusive democracy. Join us on March 2 at 4 p.m. ET for our kickoff event, “Reckoning with the Constitution.” RSVP here.

Public Service Means to "Go Where the Problems Are"

My passion for social justice began with my family history. My father marched at Selma with John Lewis. He participated in “Freedom Summer” in Mississippi to register Black voters and build freedom schools. He desegregated his community college. His father—my grandfather—was a Montford Point Marine, one of the first Blacks to serve in the Marine Corps. My mother counseled students in public schools for three decades. Her mother—my grandmother—worked as domestic help for white families during the Jim Crow era.

My family routinely discussed what citizenship meant to us. It is about active service. The idea that we should do something greater than ourselves and make the world reflect not what it is, but what it ought to be.

With those values firmly rooted, this Black kid born in a small town in Mississippi would go on to attend some of the most elite schools in the country. But the value of making a difference in the lives of others, especially in the arena of civil rights, would be a fire that would continue to burn in me. I played football at Stanford but also led campus protests to protect Black studies programs. I studied abroad at Oxford, but I also interned in the White House Office of the Chief of Staff. I was one of the first Black editors in chief of a journal at the University of Virginia Law School, but I also helped create the Law School’s Center for the Study of Race & Law.

My educational journey taught me an important lesson: personal achievement and service can go hand-in-hand. And you don’t have to wait until you arrive at your destination in order to create your legacy. Rather, each of us can make a positive difference wherever we are, right now.

I began my legal career clerking for two esteemed federal jurists: Judge Carl E. Stewart on the U.S. Court of Appeals for the Fifth Circuit and Judge Alexander Williams, Jr. on the District Court for the District of Maryland. I am the first person in my family to attend law school. Clerking provided me with two lifelong mentors.

After clerking, I began my career in public service through a post-graduate fellowship. I was fortunate to be selected as a Francis D. Murnaghan Fellow, a fellowship named after a former Fourth Circuit progressive jurist. I worked at the Public Justice Center, a Baltimore-based anti-poverty nonprofit dedicated to impact litigation, in its appellate section. During my fellowship, I argued an appeal against a major company for wage abuse and testified before a state legislative body against the state’s felony disenfranchisement law.

I believe public service lawyers should “go where the problems are,” meaning they should be on the front lines of the major social injustices of the day. In 2006, the major civil rights issue of the day was the reauthorization of the Voting Rights Act, perhaps the most important civil rights legislation in America. Voter suppression was and continues to be a problem. I desired to be on the front lines of the fight to combat voter suppression, so I joined the powerful Senate Judiciary Committee. I spent the next four years working as a counsel to Senator Patrick Leahy, the chairman, focused on civil rights, judicial nominations, criminal justice reforms.

During my time on the Judiciary Committee, I helped to negotiate the passage of major social justice legislation. From reducing the sentencing disparities between crack and powder cocaine from 100 to 1 to 18 to 1 to passing the first civil rights protections for the LGBTQ community in the form of a hate crimes statute to enacting into law a bill arming the Justice Department with stronger tools to pursue unsolved, decades-old murders of civil rights activists, I had the chance to work on issues that make a far-reaching impact. In addition, I advised on the confirmation hearings of hundreds of judicial and executive branch nominees, including the historic confirmation hearings of Justices Sonia Sotomayor and former Attorney General Eric Holder.

I next began working at the Justice Department’s Civil Rights Division. I served in the Appellate Section where I briefed and argued civil rights appeals. I am particularly fond of having argued against the Alabama State Solicitor General, where I successfully defended the constitutionality of a civil rights statute. Soon, I joined the Division’s front office to advise on civil rights policy issues. In this role, I advocated before members of Congress and their staffers on civil rights priorities and defended the Division in congressional investigations.

In 2013, I became a federal prosecutor in Seattle. Prosecutors have significant discretion in our justice system to bring or dismiss charges and advocate for appropriate sentences. Motivated by a desire to work from the inside to fix our justice system, it was an honor to serve alongside dedicated career prosecutors.

After the police killing of Michael Brown in Ferguson, Missouri, I believed this was my generation’s Selma moment and I returned to Capitol Hill to once again “go where the problems are” and make a difference. I served as Senator Cory Booker’s senior counsel, where I led all of his criminal justice reform work. I helped to negotiate legislation that would turn into the landmark First Step Act, the first time that Congress would take on mass incarceration and attempt to reduce mandatory minimum penalties that drive over-incarceration. I also worked on legislation addressing police misconduct and helped enact into law a bill on “ban the box” to ensure returning citizens are not discriminated against in federal jobs.

I later became Senator Feinstein’s legislative director. I supervised legislative assistants and served as the principal policy advisor to the Senior Senator for California. I also served as chief of staff to a freshman member of Congress where I helped to establish a new congressional office, led multiple congressional offices, and advised a member of Congress on her political, communications, legislative, and in-district agenda.

My legal journey has been deeply influenced by people along the way who molded my passion for social justice into a deeper understanding of the historical and political context of injustice. I am thankful to have learned from scholars, like Clayborne Carson and Lucius Barker, who taught me to see our brilliant, yet unfinished, multi-racial democracy not as it is, but as it could one day be. “We the People…in order to form a more perfect Union” are not just words from an old parchment whose value no longer resonates. Rather, it is a call to action that serves to inspire the present. And each of must do our part to make this Union more perfect.

I became a lawyer because I was moved by the actions of civil rights lawyers before me. I admired people like Charles Hamilton Houston who created the legal strategy to end legalized segregation to Thurgood Marshall and Constance Baker Motley who fought to end America’s Jim Crow legacy to A. Leon Higginbotham whose seminal book Shades of Freedom described both the potential of the law to either eliminate or perpetuate racial injustice. I recall Mr. Houston’s profound statement that a “lawyer is either a social engineer or a parasite to society,” and I desired to use my legal career to become an agent of social change.

Even in the private sector, I have continued to fight the good fight. Following the police killing of George Floyd, who was from my hometown of Houston, I once again wanted to “go where the problems are” to work on the issue of police reform. As a counsel at a global law firm, I represented a national civil rights nonprofit organization in advocating before Congress for the passage of the George Floyd Justice in Policing Act, the major legislation that passed the House of Representatives last year seeking to reform how we do policing in America. I have also counseled nonprofits on civil rights and criminal justice reform legislation.

As activism on police violence and justice reform sweeps our nation, we face a moral imperative to reimagine our justice system. We lock more people behind bars than any place on Earth. We have more people of color behind bars or on supervision than all the slaves in 1850. And we strip millions of people of their basic civil rights, including the rights to vote, serve on juries, and to be free of legal discrimination in jobs, housing, and public benefits. To paraphrase Professor Michelle Alexander, the notion that once a person commits a crime, they are rendered permanently disposable is the very idea that has rationalized mass incarceration.

We are all complicit when we tolerate injustice. Yet, we remain agnostic to the powerful forces that allow mass incarceration to devastate communities and destroy human potential. Perhaps the most harmful racial implication of mass incarceration is that it frames Black people as the problem. We define Blacks as criminals when they stand at the bus stop, sit with friends in a local coffee shop, jog in a suburban neighborhood, or simply walk home from work. This must cease. We must move away from sympathy to action. We must move from thinking of reforms to thinking about reimagining policing, which requires that we ask ourselves a basic but fundamental question: what does society want police to do? And we must recognize, as police have been telling us for decades, that we require them to do too much. In the end, how we choose to fix or not fix our broken justice system—which undermines basic human dignity—is the human rights challenge of our time.

One of my heroes, Rep. John Lewis, once said that “Democracy is not a state, it is an act.” This means that we must choose to actively participate in ensuring our democracy lives up to its promises. That is why I believe in the American Constitution Society’s mission to promote progressive values is needed now, more than ever. As we celebrate Black History Month, I have every confidence that ACS will continue to lead the way in promoting the progressive values that continue the centuries-long struggle to create a truly inclusive democracy.

Roscoe Jones is a counsel at Gibson Dunn. He has advised three US Senators and a member of Congress. He teaches at the University of Michigan and Yale Law Schools and taught at the Harvard Kennedy School and Georgetown University Law Center. He serves on the Board of the American Constitution Society

Enforcing the 14th Amendment’s Bar on Insurrectionist Officers and Candidates

With the Senate’s acquittal of former President Trump, the focus now turns to whether Section Three of the Fourteenth Amendment prohibits him from serving as President again. Until January 6th, Section Three was perhaps the most obscure part of the Constitution. The text states, in part:

No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office, civil
or military, under the United States, or under any State, who,
having previously taken an oath, as a member of Congress, or
as an officer of the United States, or as a member of any State legislature, or as an
executive or judicial officer of any State, to support the Constitution of the
United States, shall have engaged
in insurrection or rebellion against the same . . .

Section Three was ratified to exclude former civil officials and military officers who joined the Confederacy from serving in office unless Congress (by a two-thirds vote in each House) extended a waiver. The provision was enforced vigorously during Reconstruction, in part through civil actions brought against ineligible officials under Section 14 of the First Ku Klux Klan Act. In 1872, though, Congress granted amnesty to most of the men covered by Section Three in the hope that this would reconcile Southern whites to the rest of the Fourteenth Amendment. This hope was misplaced, and Section Three soon sank from view.

Section Three is once again relevant due to the extraordinary events at the Capitol and the widespread condemnation of the attack as an insurrection by Republicans and Democrats in Congress. This characterization, reinforced by the article of impeachment adopted by the House of Representatives that expressly invoked Section Three, strongly suggests that anyone who “shall have engaged” in that insurrection after having sworn an oath to protect the Constitution is now ineligible to serve.

Even if Congress does nothing to enforce Section Three or name the former President as an insurrectionist, the issue will be litigated if Trump tries to run again in 2024. State election officials charged with determining ballot access in the presidential primaries will have to make an initial determination on whether he is eligible to serve under Section Three. Some of these officials will invariably say that Trump is ineligible, and he will then challenge those rulings in court. While there is authority holding that Section Three is not self-enforcing in an area under federal jurisdiction (for instance, in the District of Columbia), states did enforce Section Three on their own during Reconstruction and can do so again. The Supreme Court will almost certainly be asked to hear at least one of the state cases on Trump’s eligibility.

Nevertheless, Congress should take action to enforce Section Three against anyone engaged in the January 6th insurrection. There is currently no federal statutory authority to enforce Section Three, and if this deficiency is not addressed many problems will follow. First, some states may simply choose to ignore Section Three or do minimal enforcement. Second, having each state enforce Section Three in its own way will result in a haphazard system especially ill-suited to resolving a question of presidential ineligibility. Third, if former President Trump runs again, his eligibility must be determined promptly--before any elections take place--otherwise the Republican nominating contest will be thrown in chaos. But the ability of the ex-President or his opponents to engage in litigation gamesmanship during a primary process where each state is acting independently could easily thwart a prompt resolution by the Supreme Court. And it would be particularly unfortunate if the Court were called upon to resolve the issue in an emergency application for a stay on the eve of a primary where due deliberation on the arguments could not occur.

Congress can resolve many of these issues by using its enforcement authority under Section Five of the Fourteenth Amendment to create a rational and fair process for Section Three claims. For example, these claims could be assigned to federal court and even to a specific court such as the U.S. District Court for the District of Columbia. Likewise, Congress could provide for a three-judge district court rather than a single district judge as the court of original jurisdiction, with an expedited appeal to the Supreme Court. The Attorney General could be given primary authority to initiate Section Three actions, perhaps alongside a limited private right of action. Finally, Congress can determine the standard of proof that should apply in a Section Three case.

In addition, Congress could adopt a concurrent resolution making factual findings about the insurrection and expressing its view that the former President is now ineligible to serve under Section Three. This would be a non-binding statement of Congress’s opinion that could be cited as persuasive authority in any future litigation. Contrary to some media commentary, such a resolution would not be a bill of attainder criminally punishing someone without a trial prohibited by the Constitution. First, a concurrent resolution is not a bill. Second, a bill of attainder is binding, which makes that act completely different from a non-binding concurrent resolution. Third, bills of attainder involve a criminal punishment, whereas there is considerable authority describing Section Three as creating only an eligibility requirement for office. Fourth, the Framers of the Fourteenth Amendment self-consciously drafted Section Three as a modification of the Bill of Attainder Clause, which makes the attainder argument singularly inapt here. Congress is free to express its collective view of Section Three as applied to Trump, though 60 votes would be required in the Senate to overcome a filibuster. But Congress does not need to adopt such a concurrent resolution for Trump to be found ineligible by a court.

If the ex-President does seek office again in 2024, he will be able to make several arguments in any litigation challenging his eligibility to serve. Trump can contend, as one of his lawyers did during the impeachment trial, that what occurred on January 6th was not an insurrection. He can also say that he was not “engaged in insurrection.” Note, though, that “engaged” connotes a broader understanding of participation than an “incitement” of insurrection, which was the charge in the article of impeachment that 57 senators found convincing. Engagement is also largely a factual question, which means that the ex-President could be compelled to testify about his actions or required to produce any records in his possession about those events. Lastly, Trump could argue that Section Three does not cover the President or the presidency in part because that office is not specifically mentioned in the text. On balance, I believe that this claim is unpersuasive. A similar point was raised in the Thirty-Ninth Congress, and the argument that the presidency was not included in the broad language describing the ineligible offices was rejected. Moreover, John Bingham—one of the leaders of the Joint Committee on Reconstruction—told his constituents in August 1866 that Section Three meant that “no man who broke his official oath with the nation or State, and rendered service in this rebellion shall, except by the grace of the American people, be again permitted to hold a position, either in the National or State Government.”

Let me conclude by clearing up two misconceptions about Section Three. First, a concurrent resolution of Congress declaring that Trump is ineligible does not make him ineligible. A disqualification from office imposed after an impeachment conviction is final. A concurrent resolution on Section Three would instead be non-binding and subject to judicial review. Only a court judgment can make an individual ineligible under Section Three. Second, the application of Section Three does not require a criminal conviction for insurrection. No such requirement was imposed when the provision was enforced during Reconstruction. Congress could, of course, choose “beyond a reasonable doubt” as the standard of proof in a Section Three action, but a standard like “clear and convincing evidence” would adequately protect the liberty interests of anyone sued as ineligible.

Section Three of the Fourteenth Amendment is the only part of the Constitution specifically directed at white supremacists. As a result, the use of that provision in response to an insurrection that carried the Confederate flag inside the Capitol is entirely appropriate and justified.

 

 

We must "keep [our] eyes on the prize, hold on"

I grew up in the Mississippi Delta. And while I think about that experience often for various reasons, this Black History Month--and in this political era--I'm thinking about some of the courageous leaders who sprang up from that rich soil to defend American constitutionalism. Today, I would like to introduce Fannie Lou Hamer.

Born to sharecroppers in Ruleville, Mississippi, Mrs. Hamer became active in the civil rights movement in her early thirties after having learned about the right to vote from Freedom Riders who visited Mound Bayou in August 1962. Even though she had failed the so-called “literacy test” twice (before passing it on the third try), Mrs. Hamer traveled throughout her community teaching Black Mississippians how to read and write, so that they could pass these same tests and secure their right to vote. For her audacity, she was fired, beaten, and ran out of her home by the Ku Klux  Klan. But like so many strong women, she persisted.

She brought national attention to the deprivation of civil rights in Mississippi by testifying at the Democratic National Convention of 1964, where she lamented being "sick and tired of being sick and tired." Fannie Lou Hamer's toil on the ground and before the cameras of the nation was pivotal to the passage of the Voting Rights Act and ensuring Black political representation in Mississippi and other intransient communities across the South. Though the circumstances that brought Mrs. Hamer to national acclaim were less than ideal, each time I consider her life, I am nevertheless filled with the sense that if our society and our system could create a soul as big as Mrs. Hamer's, then maybe there is hope.

I share this story today because we are in a moment that calls for more Fannie Lous. Fannie Lou Hamer was a nation-builder. She inherited a country that reneged on its most fundamental promise and instead of abnegating or abandoning the Constitution, she sought to make it more real. Today, we are inheriting a similar country, where injustice and inequality yet persist, and instead of confronting them head-on, our "leaders" prefer to incite insurrection and undermine constitutional democracy for personal gain. In the face of such recklessness, I think we are called to summon our inner Fannie Lou Hamer. We cannot give in to prolonged bouts of despair, hopelessness, or pessimism. These things will come, yes, but, in the robust tradition of the Black civil rights leaders of yesteryear, we must "keep [our] eyes on the prize, hold on."

Pandemics, Religious Supremacy, and Supreme Court Overreaching

The Governor of California is dealing with a pandemic in a state that is larger economically than all but five countries in the entire world. Over a million Californians have contracted the virus with almost forty-thousand people dead because of COVID-19. Balancing public safety and saving human lives while maintaining a functioning economy requires careful value judgments by the Governor and his scientific and economic advisors. The rules relating to public and private gatherings are complicated and vary within this huge state depending on the severity of the crisis in different counties. The rules are updated by elected officials on a regular basis depending on numerous objective indicators relating to the spread of the virus. There can be no plausible claim California has not carefully studied and considered how best to deal with this emergency.

The same, tragically, cannot be said for the ruling by the Supreme Court late Friday night overturning that part of California’s response to the pandemic banning indoor religious services (a ban on indoor singing and chanting was upheld for now). This ruling, second guessing excruciatingly hard decisions made by state political officials, is unjustified as a matter of law, inept as a matter of fact, and wholly irresponsible as a matter of politics. Religious supremacy, not religious liberty, is the Roberts Court’s current Trump card.

Where COVID-19 is most widespread, California prohibits indoor gatherings for many activities including museums, movie theaters, restaurants, and worship services while allowing such gatherings outside. This decision was based on scientific evidence that indoor activities especially where people sing or chant are especially dangerous and can lead to super-spreader events. Meanwhile, California has allowed retail and other businesses to remain open both to minimize the economic harm caused by the virus and because people do not tend to congregate while shopping the same way they do while attending religious ceremonies, movies, restaurants, and museums. The State was trying to treat like cases alike and there is not a shred of evidence that California’s rules relating to the virus were intended to discriminate against religion or religious activities.

Yet, the Justices, with barely any explanation at all, overruled the decisions by California’s health and government officials that at this time it is simply too risky to allow indoor gatherings where people congregate together for long periods of time. There were a number of different opinions in the case, and the conservative Justices divided on the ban on singing and chanting, but all six of them agreed that the ban on indoor worship services violated the free exercise cause of the first amendment. All three liberal Justices dissented from this holding.

One would expect that if unelected, life-tenured justices are going to overturn a state’s response to a world-wide pandemic they would at the least specify why the governing rules violate the Constitution. Alas, these justices felt no such obligation. There was no opinion for the Court, and only Justice Gorsuch, joined by Alito and Thomas attempted to justify the Court’s second-guessing in a “statement” not an opinion.

In this statement, Gorsuch relied improperly on what the Court calls “strict scrutiny” to argue that California had not fully explained and justified why it allows some inside activities such as shopping and hair cutting while banning indoor religious services, and he also suggested that the state would have done better to impose capacity restrictions and timing limits rather than a full-time ban. This aggressive judicial oversight might be proper in a case where the government targets religion for discriminatory treatment but is wholly inappropriate for generally applicable laws that treat religious and similarly situated secular activities in the same way.

The essence of Gorsuch’s “statement” is that “since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses.” That is true because the pandemic calls for general rules and religious services are in fact quite different than many shopping activities at retail stores. It does not take a scientist (or a lawyer) to understand that when people come together for indoor religious services, they are likely to spend more time together in close proximity than when shopping for groceries, clothing, or other essentials. The businesses most like places of worship, movie theaters, restaurants, and museums were treated the same way as religious services as were other indoor gatherings where first amendment speech activities were also implicated. Of course, one can always quibble with some lines that are drawn to deal with public health emergencies, but judges should not interfere with such laws absent obvious unreasonableness or discriminatory treatment of constitutionally protected behavior. California’s detailed rules regarding the deadly Covid-19 virus do not fall into either category. As is often the case, Justice Kagan said it best in dissent:

"Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic. The Court orders California to weaken its restrictions on public gatherings by making a special exception for worship services. The majority does so even though the  State’s policies treat worship just as favorably as secular activities (including political             assemblies) that, according to medical evidence, pose the same risk of COVID transmission. Under the Court’s injunction, the State must instead treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw,  exceeds our judicial role, and risks worsening the pandemic."

Chief Justice Roberts also issued a short “statement” in which he paid lip service to the deference the Court owes elected officials during a world-wide emergency, but also responded to Justice Kagan’s dissent not with no facts or explanations justifying his vote but with the following nonsense: “I adhere to the view that the Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States. But the Constitution also entrusts the protection of the people’s rights to the Judiciary—not despite judges being shielded by life tenure…but because they are.”

If more people die because of the Court’s decision, the Justices will pay no political price given that they hold their offices for life. Rather than justifying overly aggressive judicial review, the justices’ job security should make them humbler and more modest not less so. Unfortunately, when it comes to religious activities, the Justices act much more like an ultimate veto council than a court of law. The Chief, of all people, should know, understand, and appreciate the difference.

More than Vaccines, the U.S. Needs Better Branding of Policies and Inoculation Against 'Stop the Steal-ers' Messaging

As a law professor who worked for almost 30 years at the U.S. Department of Justice and who has taught constitutional law and advises on messaging and marketing, I have an urgent message to President Biden and all agencies of the executive (Article II U.S. Constitution) branch. We need much more than access to COVID vaccines. We are in dire need of both better branding for the governmental policies to come and also consistent messaging inoculation against the views of millions of Americans who continue to believe that the 2020 presidential election was stolen. Currently 72% of Republicans hold this view. Although 165 million Americans voted in last November’s presidential election, 74 million people voted against the new president.

To effectively govern in this climate and achieve the change we seek, where (as the Capitol siege footage demonstrated) many there saw themselves, (and outfitted themselves) as Make America Great Again warriors, President Biden needs masterful, consistent, and pithy counter-MAGA messaging. As Opal Tometi, co-founder of Black Lives Matter has said, “words actually matter . . .” The new administration must heed this. It must learn from the communication and agenda-marketing-mistakes and successes of previous administrations. In order to reclaim ground for those who have been diminished by the last four years, the new administration needs to take two-steps, starting now.

Step-one is to implement product-branding on all executive actions and legislation. It can build on Biden’s campaign slogan and add Biden’s name to make a four-word alliteration and an eponymous acronym: Biden's Build Back Better.” “4Bs” would become synonymous with and serve as a short-hand for all programs from day one.  This would harken back to the 32nd president Franklin Roosevelt’s catchy colloquial alphabet-word-soup of agencies and programs (such as CCC, WPA, FDIC), used to wrest Americans out of the Great Depression. Imagine a campaign of “BBBB merch,” of baseball caps to banners, coinciding with executive orders and legislation rollouts.

Implementation of this first-step would reverse the curse of post-WW II Democratic administrations as poor marketers.  Does anyone remember the name or the successes of President Obama’s first-term infrastructure project? It financed and built 2,700 bridges, 42,000 miles of roads, and upgraded and repaired 800 airports. It was the most successful national infrastructure program since President Eisenhower’s 1956 Highway Act which built the interstate highway system.  Few Americans remember Obama’s program likely because it was a multi-syllabic, mouthful of words, with no easy to remember or to pronounce acronym: The American Recovery and Reinvestment Act. Imagine, instead, if the Obama program had been called “Build a Bridge”? Folks would remember the program and its importance.

Consider too how successful the rollout and acceptance of the Affordable Care Act would have been if it had been named the eponymous "Kennedy-Care" (for Ted Kennedy who sponsored health care reform). The public, a third of which has no idea that Obama Care and the ACA are the same thing, would have likely embraced it as a tribute to our 35th president, JFK.

At the same time that step-one is being implemented, step-two, counter-messaging, must be consistently applied. The administration can learn much from the emerging social science literature regarding the pandemic. Unrefuted misinformation early on has detrimental consequences. It impedes the ability to stop the spread because a significant number of people believed it to be a hoax. University of Chicago scholar Leonardo Bursztyn has determined that,  “ . . . misinformation in the early stages of a pandemic can have important consequences for how a disease ultimately affects the population.”

In order to facilitate effective governance over a four-year-term and make meaningful change, counter-messaging must begin in the early stages of the new administration.  Every "Stop the steal" utterance in any medium must be immediately met with the verbal counter-punch: "There was no steal; stop the lie.” The administration and those who support it must, in every forum and every encounter, do this every time.  The myth of the stolen election, a type of cognitive radicalism, cannot be eradicated with a presentation of facts, but rather ameliorated with better messaging.  In a report entitled “Countering Online Radicalization in America,” a 2012 bi-partisan-committee sponsored by the Department of Homeland Security, reported that such beliefs can be countered with better-crafted, more powerful, and attractive media products.

So much of 20th, now 21st-century U.S. politics, and, ultimately, the progress we seek, is marketing -- as we have all become consumer-purveyors of one or two-sentences of electronic information on our phone screens.  We are complicit and rely on the sparest of written content provided from any source over a screen.

With a daily fire-hose of information coming at us, the new administration must recognize that we need to be both “spoon-fed” in easily digestible, pithily named policy morsels and also to remind us of the daily vigilance needed to snuff out the current great lie.  For the sake of the continuation of our 1787 constitutional experiment, the Biden administration must take these two steps and make messaging a day-one priority.

Julie A. Werner-Simon is a former federal prosecutor who served as Deputy Chief of the Organized Crime Strike Force in Los Angeles. She recently completed a constitutional law fellowship at Southwestern Law School and is currently an adjunct law professor at Drexel School of Law in Philadelphia.