"A Country Still Striving to Give its People Life, Liberty and the Pursuit of Happiness"

As the grandson of Joseph Woodrow Hatchett, who became the first African American appointed to the Florida Supreme Court since reconstruction and the only African American to win statewide election besides President Obama, the importance of participation in the democratic process was instilled in me at an early age. I can recall my mother talking about what it was like to be the daughter of a Florida civil rights icon during the civil rights movement. Those stories, as painful as they are, provided a greater understanding of democracy and all that it encompasses. It encompassed combatting institutionalized oppression and systemic racism, risk of loss of life and disfigurement, attendance at newly desegregated public schools, jail time for peacefully violating discriminatory laws and policies, and navigating discriminatory election practices and voter suppression. My grandfather, when describing what it was like to live during that time, once said, “Whites ruled everything and dared you to step out of line. We just weren’t going to take it anymore. That was the civil rights movement.” Against the backdrop of a rewarding, but also painful, motif of family history, I learned about the life-long struggle that was responsible for my very existence. 

My upbringing cultivated a passion for pursuing equality and justice for all. Shortly after my high school graduation, I enrolled at Florida Agricultural & Mechanical University. I declared political science my major, hoping to one day attend law school and to learn more about human relationships, societal norms, and its practical application to democracy. Speaking to the importance of engaging in the democratic process, my grandfather once noted that “law[s] shape[] the conduct of human relationships, how we live with other people. But human relationships should be powerful in shaping law.” Beyond immersing myself in the social landscape of college activities, I accepted an internship opportunity at the Executive Office of the Governor’s Office of Adoption and Child Protection. This experience brought me face-to-face with the very real-life consequences of decades of institutionalized racism, discriminatory policies and laws solely designed to shape the conduct of human relationships. The corollary was obvious and personified by the circumstances of the children and families we worked with. Using our understanding of human interaction as a guide during the legislative process may have helped the government avoid playing a role in creating the circumstances those children fell victim to. As you could imagine, this experience fueled my passion and had a profound impact on my views of life and the fragility of the human experience. As an upperclassman, I was invited to attend the Florida Student Leadership Forum on Faith and Values, which was hosted by former United States Senator Bill Nelson, and his wife, Grace. Its core mission is to train the next generation of community leaders, challenging them to embrace and apply concepts of humility, reconciliation, purpose, and passion. This experience provided a sense of hope, as it was the first time I had encountered a national leader that understood the power of human relationships and its role in shaping the law. 

Upon graduation from Florida Agricultural and Mechanical University, I decided to pursue my dream of becoming a lawyer and immediately enrolled in law school. At this point in my life, I became determined to graduate and use my legal education to effect positive change in my community. After my 1L year, I began searching for opportunities that would lead to a legal career path rooted in public service. During my 2L year, the opportunity was presented when I received an offer to serve as a judicial extern to the Honorable Monte C. Richardson, United States Magistrate Judge for the Middle District of Florida. In that role, I worked primarily on immigration and social security appeals, which were forms of the human experience I had not yet encountered, and I enjoyed this work very much. In fact, I continued this work beyond the expiration date of the externship, and, upon graduation, I was awarded pro-bono honors distinction for my achievements and the time I spent working as a judicial extern. I eventually graduated, sat for the bar exam, and began searching for employment. I was very fortunate and humbled to have been offered the opportunity to begin my legal career serving as law clerk to the Honorable Charles R. Wilson of the United States Court of Appeals for the Eleventh Circuit. After completing my clerkship, I joined the Office of the State Attorney for the Thirteenth Judicial Circuit of Florida, where I had hoped to serve the public interest for decades to come. While I thoroughly enjoyed working as an Assistant State Attorney, eventually, I decided that my personality, professional skill set, life-passion, and experience was better utilized defending the public interest, rather than prosecuting it. Today, I represent people who have been charged with crimes and those asserting constitutional rights violations against the government.   

All things considered, the last four years have been a glaring example of the importance of meaningfully and intentionally participating in democracy. But even in this shameful, tumultuous moment in our nation’s history, I remain optimistic for the future of America and democracy world-wide. I am hopeful because the United States Constitution vests all power in American citizens to realize and make good on America’s promises. But that power alone is unavailing without the affirmative and collective actions of all Americans working together to exercise and apply their collective power to achieve a more perfect union. Almost one half-century ago, during an interview for The South Magazine, my grandfather, speaking about his hope for the future of America over the next century, said his “dream [was] to see a country still striving to give its people life, liberty and the pursuit of happiness.” Looking back on the progress that has been made in America since, and considering the tremendous stress test our democracy underwent during the last four years—at times bending, but never breaking—I very much see an America still striving to give its people life, liberty, and the pursuit of happiness. I am now very much looking forward to teaching my children about democracy and how important it is for them to engage and participate meaningfully. They will know the struggle responsible for their very existence. 

Three Steps President Biden Can Take to Create a Progressive Regulatory Process

President Biden has a once-in-a-generation opportunity to reform the regulatory framework, ensuring that the government is well-equipped to address the COVID-19 pandemic, skyrocketing inequality, climate and racial justice, and other 21st century challenges. The Trump Administration undertook efforts to rewrite the rulemaking procedures to roll back regulations, and there is no doubt that President Biden must reverse these new procedures. However, it is insufficient to simply undo these changes. The current system does not serve progressive values and must be reformed.

The Administrative Procedure Act provides a simple roadmap for notice-and-comment rulemakings, yet all presidents since Ronald Reagan have imposed additional procedures onto the system they inherited. In 2021, the result is an antiquated, ossified process that is unnecessarily time consuming, allows for significant corporate influence at all stages, and imposes analytical requirements that emphasize quantified cost-benefit analysis over other reasonable analyses. This system is not a neutral framework, but instead is one that works against progressive ideals. Here are three steps the Biden administration can take to ensure the regulatory process can effectively implement policies that protect our air and water, workplaces, and the economy.

Reform OIRA To Help Agencies, Not Micromanage Them

Two of the Office of Information and Regulatory Affairs’ (OIRA) most important functions are to ensure proposed regulations’ analyses adhere to quantified cost-benefit standards and to facilitate an interagency review process which allows agencies to provide comments to each other. Although these responsibilities are intended to create better regulatory outcomes, OIRA’s efforts in these areas have had the effect of weakening and delaying regulations.

Recently, OIRA delayed publication of the Centers for Disease Control’s COVID-19 guidance for weeks, sending it to officials with “no public health or scientific expertise,” and publishing a final version over the agency’s objections and in contradiction with established science.  This is not uncommon. For the most consequential of rules, the interagency review process can postpone a rule’s enactment by months or years, preventing those who’d benefit from a rule from reaping its benefits during that time. More than 20% of rules reviewed in calendar year 2019 (99 of 475) were delayed by more than 120 days, and the longest was delayed by 420 days. At a time when America is facing immense challenges, agencies must be able to regulate more quickly than this process permits.

One reason for this delay is that agencies can frequently take weeks or months to return comments, prioritizing their own regulatory efforts over those of other agencies. To counteract this, OIRA must prioritize a robust and efficient interagency review process and dedicate additional resources to keeping on top of agencies to ensure they provide comments in an expeditious manner.

OIRA also must ensure that the views of structurally marginalized communities are heard by rule-writing agencies. Frequently, these impacted communities lack the institutional capacity to respond to Federal Register notices and fail to have their perspectives considered by agencies. OIRA should require agencies to follow best practices and conduct targeted outreach to representatives of underrepresented communities prior to submitting rules for review. OIRA could also conduct its own targeted outreach prior to approving any rule for publication to ensure that their views have been adequately considered before a rule is issued.

Additionally, OIRA should create an Office of Regulatory Innovation (ORI) to work with agencies to develop new regulatory policies that implement the president’s priorities. From its perch as a government-wide clearinghouse for regulations, OIRA is ideally situated to understand the president’s policy goals and translate them into regulation. For example, the incoming Biden administration, dedicated to addressing climate change, could use ORI to develop inter-agency policies to limit greenhouse gas emissions, especially in situations where an agency has not previously regulated to address that concern and lacks the institutional capacity to address climate change quickly and effectively. ORI could proactively pitch policies to agency political and policymaking staff and work to develop implementation strategies, or could reactively propose changes to regulations as they are submitted for review to further implement the president’s agenda. Although these functions are complimentary to OIRA’s regulatory review efforts, they are different enough that they should be assigned to employees other than the desk officers that review regulations and facilitate the interagency review process. OIRA’s staff should be expanded to accommodate ORI as well, from anywhere between doubling or even tripling its size.

OIRA must be reformed so that its efforts help, rather than harm, agencies’ regulatory efforts and the public.

Use All Available Policymaking Avenues

Agencies tend to use the notice-and-comment, or informal, rulemaking process to enact policy, but they are not required to do so: Informal rulemaking is but one procedural option amongst many that agencies may use to articulate policy, and the others may be much quicker. Rather than relying almost solely on informal adjudication, agency officials should examine their full range of authorities and adopt the procedures best suited for the situation.

Agency officials should consider using adjudications to interpret current law in more progressive manners. With some limitations, agencies are permitted to give force to new interpretations of statutes and regulations, akin to the development of common law by the courts. Although policymaking in this manner is not appropriate in every situation, agencies may find it an effective way to move policy more quickly than by rulemaking, requiring fewer procedural steps and opportunities for delay than the ossified rulemaking process.

Additionally, agencies should make use of enforcement discretion. Enforcement offices cannot investigate or prosecute every allegation of wrongdoing, and may therefore set priorities that offer certainty to the public as to the probability that a particular action will be prosecuted. Agencies may, for example, issue non-binding “no-action letters” which tell the public that staff will not recommend enforcement actions for a particular set of facts and circumstances, or may declare prosecution of specific cases as “low priority.” The Obama Administration took the latter course with DACA, and the policy was nearly as effective as a rulemaking—the Supreme Court declared that the Trump Administration could not repeal DACA without sufficient analysis.

Ensure Economic Analyses Capture Relevant Factors

Cost-benefit analysis (CBA) is an exercise intended to assist agencies in evaluating the merits of regulations by understanding the costs that would be placed on regulated parties and the benefits that would flow to the public. However, agencies frequently conduct CBA in ways that are biased against progressive values while simultaneously being overly formulaic; CBA frequently ceases to be a beneficial analytical tool.

When conducting analyses, agencies should consider regulatory impacts that cannot be or are not easily quantified. Quantification has the benefit of permitting agencies to easily compare two numbers, but allows for significant corporate influence in ways that individuals and good government groups cannot possibly match. Wealthy corporations are most likely to have data relevant to a given rulemaking than structurally-marginalized communities likely to benefit from the rule. Corporations therefore have the opportunity to provide data to regulators or withhold it, depending on their interests, and may also sway the process by hiring so-called experts to produce analyses of every potential cost of proposed regulations while regulatory beneficiaries face innumerable challenges in countering such claims. Quantification also encourages agencies to place an emphasis on easily-quantifiable impacts, rather than on those that are more diffuse and harder or impossible to quantify. In one instance, a Food and Drug Administration rule on e-cigarettes was weakened because vape shops would lose revenue while the data on whether millions of young adults would become addicted was not sufficiently clear. Agencies should consider quantification as one method of analysis to be used in conjunction with others—such as whether regulations promote values such as equality, equity, and fairness.

Agencies should also analyze regulations in relation to specific items in President Biden’s agenda. The administration could require all agencies to ensure that every rule promotes competitive markets, for example, even if particular agencies are not traditionally tasked with achieving that priority. For example, concentration in the pharmacy market has resulted in significant patient harms. Although they are not considered antitrust regulators, the Department of Health and Human Services and its subcomponents could address this competition issue via their public health regulations. Similarly, all agencies could be required to ensure that their regulations decrease economic inequality or reduce racial disparities.

***

President Biden faces an unprecedented need to reshape the regulatory process and must not simply return to the pre-Trump status quo. Those rules allowed regulated entities to use regulatory processes to escape scrutiny and failed those reliant on government regulation to protect their health, safety, and welfare. Especially now, in the midst of the COVID-19 pandemic and unacceptably high levels of unemployment, the American public deserves a government that follows science, ensures the participation of previously excluded communities, and emphasizes equity when regulating, not just quantified costs and benefits.

There are many opportunities for the Biden administration to reform the regulatory process. The ones described here would ensure that the government effectuates policy quickly, effectively, and in manners that emphasize progressive values.

On MLK Day, Let Us Pledge to Courageously Meet the Problems of Today

The author (back left) and other ACSers out for an early morning run during the 2019 Atlanta convening.

If only to save ourselves from bitterness, we need vision to see the ordeals of this generation as the opportunity to transfigure ourselves and American society,” Rev. Dr. Martin Luther King Jr. implored an audience gathered on the steps of the capitol in Montgomery, Alabama, on Easter Sunday in 1958.  Dr. King was once again making history by using powerful and moving words, combined with nonviolent action, to call attention to injustices in our society.

As Martin Luther King Day approaches, we are once again living through a period when history of the highest order is being made right before our eyes.

In this year alone, voters from the State of Georgia made history by electing two new senators, Jon Ossoff and Rev. Raphael Warnock, to replace the state’s incumbent office holders. Rev. Warnock, like Dr. King, is a graduate of Morehouse College, a small liberal arts school known for infusing moral leadership in every aspect of its curriculum. He has also followed Dr. King’s path in pastoring the historic Ebenezer Baptist Church in Atlanta.

I, too, am a graduate of Morehouse, where I vividly recall hearing from professors who taught Dr. King and others who knew him well. As I reflect on what I have learned about Dr. King’s life of purpose, I cannot help but to compare his generation’s struggles to the tumultuous times of today.

This period of reflection also makes me think back to an autumn day in 2019, when I went on a morning run through the Sweet Auburn neighborhood in Atlanta with a magnificent band of lawyers from the American Constitution Society. We spent the previous day convening, discussing our shared commitment to the U.S. Constitution, and ways to use our legal education and experiences to improve the lives of others.

After a day of exercising our collective minds, we agreed to ignore the rain forecast and embark upon a group run to exercise our bodies. Our route took us down Auburn Avenue, first to Ebenezer, where Dr. King was ordained and later preached in the same pulpit as his father and grandfather, then past beautiful murals designed to remind visitors of the neighborhood’s rich history in the civil rights struggle and beyond, and finally to the birth home of Dr. King.

The exhilaration from the experience was tempered by the solemn acknowledgement of this nation’s struggles to live up to its ideas. As a former FBI agent, I found myself thinking about how the FBI as part of its Counterintelligence Program, commonly known as CoinTelPro, viewed Dr. King as a communist threat who needed to be contained. It has been widely reported that the FBI even sent Dr. King a “suicide letter,” where they threatened and encouraged him to kill himself. A previous FBI director said he kept a copy of the Dr. King wiretap request on his desk as a reminder of the organization’s enormous power and potential for abuse.

This week, the nation was once again reminded of the complex nature of law enforcement – they must be appropriately resourced and supported while simultaneously operating within the confines of the law and Constitution. Law enforcement powers are vast, but as Dr. King’s case demonstrates, they must not be abused.

With a global pandemic continuing to take thousands of lives each day, social and political unrest occurring inside and outside of both houses of Congress, and an upcoming change in presidential administrations, the country is once again at an inflection point. One option is to retreat to a place of hatred and bitterness. Or, we can choose the route suggested by Dr. King on that Easter Sunday in 1958, and “…in the interest of human dignity and for the cause of our democracy,” we can appeal to our fellow American to “gird their courage to speak out and act based on their basic convictions.”

That afternoon Dr. King asked his fellow Americans, regardless of “whether they are private citizens or public officials, to courageously meet the problem” of his day. As we reflect on Dr. King’s life, let us courageously meet the problems of today with a commitment to justice and the conviction to transfigure ourselves and American society.

Anthony Box is an ACS member and Assistant United States Attorney for the Department of Justice. The views expressed in this article do not necessarily represent the views of the Department of Justice or the United States.

 

The Senate Retains Authority to Try Donald Trump After He Leaves Office

The House of Representatives has impeached President Trump.  As early as next week, the Senate will convene a trial of the impeachment.  That trial will fulfill the Senate’s duty as the constitutional repository of the “sole power to try all impeachments.”

In a post published here on Wednesday, I wrote that Trump’s “second impeachment raises no interesting procedural or substantive issues (except maybe whether the presiding officer at the impeachment trial of a former President is the Chief Justice or the Vice President).  I stand by the statement, but that apparently does not mean Trump’s defenders will not stretch and contort to raise objections.  Witness yesterday’s Washington Post, which carried an op-ed by J. Michael Luttig, formerly a judge on the Fourth Circuit U.S. Circuit Court of Appeals, asserting that the Constitution “clearly” establishes that the Senate may not hold an impeachment trial of President Trump after he leaves office.  Judge Luttig could not be more wrong.

The Constitution, in fact, is silent on the question of who is subject to impeachment.  Judge Luttig cites the clause in Article II providing that “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  All this clause “clearly” establishes is a mandatory punishment (removal from office) for current officers.  It does not even purport to address whether the impeachment power extends to former officers, let alone whether an officer who is subject to impeachment proceedings may evade punishment by leaving office.  The clauses that define the ambit of the impeachment power are found in Article I and make no mention of the limitation Judge Luttig reads into the Constitution’s text.  Article I assigns to the House “the sole power of impeachment” and to the Senate “the sole power to try all impeachments.”  Nothing in this assignment of authority excludes former officers.

While the Constitution’s text may be ambiguous, the original understanding and subsequent congressional practice emphatically establish that a former officer is subject to the Senate’s “sole power” to try impeachments.  As Alexander Hamilton makes clear in Federalist No. 65, Great Britain provided “[t]he model from which the idea of this institution has been borrowed.”  It was firmly established in Britain at the time of the founding that former officers were subject to impeachment.  Indeed, the British impeachment that most informed the framers’ thinking about the impeachment power was the impeachment of Warren Hastings for improprieties as the Governor-General of Bengal.  Hastings had been out of this office for two years before his impeachment by the House of Commons.  Moreover, at least two states – Virginia and Delaware – had established that their impeachment power extended to former officers.  Against this background, it is particularly telling that there is no indication in the Federalist Papers or in any other significant commentary from the founding era indicating that the framers intended the new Constitution to deviate from this baseline understanding.

Congress has also expressly addressed this question and resolved it in favor of the original understanding.  In 1876, the House drafted articles of impeachment against President Grant’s Secretary of War, William Belknap, but Belknap resigned before the House could vote on the articles.  The House debated whether Belknap’s resignation deprived the House of jurisdiction.  After the debate, the House voted to impeach Belknap, implicitly rejecting the argument that it lacked jurisdiction.  The Senate also took up the issue and voted 37-29 that Belknap’s resignation did not deprive it of jurisdiction.  This resolution affirmed the apparent understanding of Congress in 1797 when the House impeached Senator William Blount.  Both the House prosecutor and Senator Blount’s defense lawyer agreed that Blount’s resignation did not deprive the Congress of jurisdiction to impeach and try the senator.

The Constitution’s structure also confirms the original understanding that former officers may be impeached.  If the only punishment for impeachment and conviction were removal from office, that would strongly indicate that the power applies only to current officers, since it would be futile to convict someone who holds no office to be removed from.  But removal is not the only constitutionally-sanctioned punishment.  The Constitution also authorizes the Senate to disqualify a person convicted from ever holding federal office.  An officer who is convicted of accepting bribes could avoid this disqualification by the simple expedient of resignation.  The impeachment of President Trump vividly illustrates the point.  He stands impeached for inciting sedition and waging war on our democracy.  Disqualifying him from ever holding office again would be anything but futile.

Judge Luttig apparently recognizes just how weak his argument is.  He acknowledges the Belknap precedent yet offers no distinction.  Instead, he suggests the Supreme Court will have to decide what to make of it.  But that too is wrong.  The Supreme Court has held that the Constitution assigns the power to try impeachments exclusively to the Senate and that this assignment precludes the Court from involvement.  When Judge Walter Nixon challenged his Senate conviction, the Supreme Court unanimously held that his claim raised a political question, which the Court could not resolve because the Constitution commits the resolution of the content of the Senate’s power to try all impeachments exclusively to the Senate itself.

It is perhaps a testament to just how indefensible President Trump’s conduct is that his defenders must resort to specious procedural arguments.  The Senate should not be fooled.  Its authority to try President Trump even after January 20 is overwhelmingly clear.  In fact, it is the Senate’s constitutional duty to hold a trial.

Neil Kinkopf is a professor of constitutional law at Georgia State University.  He previously served as counsel to then-Senator Joe Biden during the impeachment trial of President Bill Clinton.

The Second Impeachment of Donald Trump

Donald Trump.  A President who will live in infamy.

This week, by all indications, Donald Trump will be impeached  for the second time in his four-year term and for the second time in just over a year. No President has ever been impeached twice. It is now official, inasmuch as such things can be official, that Donald Trump is the worst president in American history. No president has ever been corrupt enough (not Harding or Nixon), indifferent enough to the suffering of the American people (Hoover), racist and oppressive enough of human rights (Jackson or Wilson), or just plain failed and incompetent enough (Fillmore or Buchanan) to achieve this ignominy. And make no mistake, Donald Trump is spectacularly corrupt (emoluments, Russia, Ukraine), plainly indifferent to the American people (the pandemic, the refusal to act to combat climate change or to even recognize the plague of police brutality), racist and oppressive (kids in cages, Charlottesville, “rapists and murderers,” the Muslim ban, Lafayette Square Park, the vilification of Black Lives Matter), and failed and incompetent (all of the above and so much more).

Perhaps most amazingly, none of this is the basis of Trump’s second impeachment. Donald Trump will be impeached a second time for waging war on Democracy. From his months-long efforts to undermine the integrity of the election (calling into question various voting procedures, enlisting his toady Attorney General to lend his lies credibility, attempting to strongarm state officials into undoing the results of free and fair elections, and unleashing unscrupulous attorneys to file frivolous claims and to spread blatant lies) to his incitement of the mob to attack the Capitol and stop Congress from performing its constitutional duty to certify the will of the people that Joe Biden be President and that Donald Trump’s tenure end. There is no room for subtlety. No President has ever done such a thing. No President has ever done anything remotely close.

Just over a year ago, I wrote a post on this site entitled “What to Expect When You’re Expecting an Impeachment.”  That post canvassed some of the procedural issues relating to the first Trump impeachment. That impeachment in fact raised a vast array of issues, both procedural and substantive. Although it was only a year ago, so much has happened since that it is useful to recall some of them. Trump’s defense team raised the issue of whether he threatened to withhold aid from Ukraine unless Ukraine announced an investigation of Biden and whether that would constitute a high crime and misdemeanor if he did (nevermind that he did and it would). There was also much debate over whether the House should be permitted to present evidence or subpoena witnesses (recall Sen. McConnell’s refusal to allow John Bolton to be subpoenaed). The second impeachment raises no interesting procedural or substantive issues (except maybe whether the presiding officer at the impeachment trial of a former President is the Chief Justice or the Vice President). There is no question of fact regarding what President Trump said and did. Nor is there any question about what ensued. Indeed, members of the House and Senate are eyewitnesses to events. Moreover, there is no question whether the incitement of violence to interfere with the constitutional election process is a “high crime” or “misdemeanor.”

There are two important procedural points relating to the second impeachment that are well-established. First the Senate may try a former official who has been impeached by the House. When the House impeached President Grant’s Secretary of War, William Belknap, Belknap resigned from office. The Senate voted 37-29 that it retained jurisdiction despite Belknap’s resignation. Second, the Constitution provides that an officer who is impeached and convicted is automatically removed from office (impeachment is not necessary to remove Trump from office, that will happen at noon on January 20). The second impeachment is not redundant; the Constitution authorizes the Senate to impose the additional punishment of barring the impeached and convicted officer from ever holding federal office (including the presidency) in the future. This punishment requires only a simple majority vote and may be imposed as long as the officer has been duly convicted (i.e., by a 2/3 vote).

Ultimately, there is one enduring principle of impeachments that defined the first Trump impeachment and will define the second as well. As I put it last year, because the Senate may only convict by a 2/3 supermajority, “As  a practical matter, … impeachment must be a bipartisan undertaking, otherwise any impeachment by the House is an empty, symbolic exercise.” For the first impeachment, Republicans in the House and Senate (Justin Amash and Mitt Romney notwithstanding) simply refused to go along and recognize the President’s actions for what they were. There is every reason to hope this second impeachment will be different. Numerous Republicans have already expressed either their openness to considering impeachment and conviction, or have voiced an outright demand that the president leave office. It should not be controversial that Donald Trump has waged war on Democracy, that this is a high crime, and that he should be disqualified from ever holding office again.

It’s Time to End the Federal Death Penalty And Empty Death Row

President Biden, in one of his first acts upon taking office, should shut down the machinery of death that Donald Trump has revved up to unprecedented levels and put us on a path to ending the federal death penalty once and for all.

Never before in modern history has a lame-duck president had the contempt for the voters to execute even one person during a presidential transition. President Trump, despite losing re-election to a candidate with a platform that included eliminating the federal death penalty, remains undeterred. On January 12, just over a week before President-elect Biden will be sworn into office, the federal government plans to execute Lisa Montgomery, followed two days later by Corey Johnson, followed the next day by Dustin Higgs. The six people executed or still facing federal execution during this lame duck include two people with intellectual disabilities; one of the youngest people ever to receive a federal death sentence; a severely traumatized and mentally ill person who is the only woman on federal death row; and two men who did not kill anyone. All five men are African American.

Moreover, since lifting a seventeen-year moratorium on federal executions six months ago, the Trump administration has executed more people than the federal government had executed in the preceding sixty year. By the time President Trump’s term ends, his administration will have overseen more than a quarter of the federal executions performed in the past century. Not since before the turn of the twentieth century—if ever—has the federal government executed so many Americans in such rapid succession.

This should be alarming for anyone who values the dignity of human life. And at a time when so many in the country are for the first time acknowledging the racism in our criminal legal system, the disturbing escalation of federal executions takes on even grimmer salience and concern. Almost sixty percent of federal death row inmates are men of color, with Black men comprising nearly half the death row population—far exceeding their percentage in the U.S. population. Conversely, seventy percent of the executions conducted by the Trump administration have been cases in which all the victims who died were white. Any honest assessment can only conclude that systemic racism is inextricably tied to this nation’s capital punishment regimes.

President-elect Biden’s commitment to work with Congress to eliminate the federal death penalty is laudable, and many Republicans realize that the time to end the death penalty has come. Upon assuming office, though, he should immediately use his executive clemency power to commute the sentences of all current federal death row inmates to life without parole. This one act of compassion and humanity would empty the federal death row. It would also demonstrate President Biden’s committed opposition to the death penalty.

There is more President Biden could do, even without Congress’s cooperation. He should direct the Department of Justice not to authorize new capital prosecutions and to de-authorize any pending capital prosecutions. Closing the federal death row and halting resource-intensive capital prosecutions will also foreclose many otherwise necessary appeals. An ancillary benefit is that money saved by avoiding the need for an expensive death row and extensive litigation could be better used by the Department of Justice and the Federal Bureau of Prisons to allocate resources based on security risk, not sentencing arbitrariness, address the devastation the COVID-19 pandemic has wrought in federal prisons, and fund a comprehensive study by DOJ of the effect of race on the use of the death penalty at the federal and state level.

Emptying the federal death row and halting any new capital prosecution will also prevent, at least for a time, a repeat by future administrations of the horrific carnage we have witnessed in the past six months. While the Obama administration had its reservations about the death penalty—as evidenced by their decision to leave the moratorium in place—it failed to take bold action. Without the more than sixty people on federal death row when he took office, President Trump would have been unable to engage in his historic killing spree. The Biden-Harris administration should not hesitate to take the first, bold steps in joining so many states that have already abolished the death penalty and leading the rest of the nation to end this barbaric practice.

Russ Feingold is the President of the American Constitution Society. He served as a United States Senator from Wisconsin from 1993 to 2011.