Labor Secretary Scalia Wrongly Rejects Federal Role in Enforcing Unemployment Rights of Workers Who Refuse Unsafe Work

This commentary was cross-published on the NELP Blog.

Background

The COVID-19 pandemic has laid bare the structural challenges that have plagued the nation’s unemployment insurance (UI) system for decades. Reduced federal funding starved the program of the resources needed to upgrade its antiquated IT infrastructure, causing state systems to slow to a crawl and crash amid the unprecedented volume of claims over the last three months. After the Great Recession, many states slashed UI to the point where only one in four unemployed workers (27 percent, a record low) received UI last year. With the nation’s unemployment rate now well above the highest levels reached during the last recession, and far higher still for Black and Latinx and other workers of color, the stakes are greater than ever to achieve lasting reform of the UI program.

COVID-19 is having an especially devastating impact on communities of color, disproportionately claiming the lives of Black, Latinx, and Indigenous people at rates far higher than for white people, and causing far more layoffs of those employed in the service sector and other jobs that cannot be done from home and that do not offer paid sick leave or other benefits. According to a recent New York Times survey, Black workers are twice as likely as white workers to report losing their jobs because of the crisis. A recent Somos survey of Latinx families found that 35 percent reported losing their jobs in response to the COVID-19 pandemic, while 46 percent reported taking a pay cut. As a result, Black, Latinx, and Indigenous workers will likely be required by their employers to return to work at higher rates than white workers, while having far less financial security to exercise their right to refuse an offer of work if it poses a serious health and safety threat due to COVID-19.

The current economic crisis offers a unique opportunity to collectively reflect on the vital role of the UI program, its compelling history, and the need to continue expanding its reach. Born out of the New Deal, the federal-state UI program was created by the Social Security Act of 1935, which was championed by President Franklin Delano Roosevelt and Frances Perkins, the nation’s first woman Cabinet member and the first female U.S. labor secretary. For all its historical significance, however, it must be acknowledged that the New Deal shamefully excluded from its protections the country’s domestic and agricultural workers, who were predominantly Black women and workers of color. As the U.S. confronts the current crisis, policymakers must ensure that as many workers who need it can access the help of the UI program.

A Legal Right to Refuse Dangerous Work

As more states move to reopen their economies, millions of workers who were forced out of work and have been receiving unemployment insurance are now being called back to work. Many, however, are justifiably concerned about returning to work in unsafe conditions that could expose them, their families, and the broader public to COVID-19. Were it not for a key provision of the federal UI law, today’s unemployed workers would be left without any viable recourse to refuse unsafe work.

Specifically, for workers receiving regular state UI, the federal “prevailing conditions of work” provision governs “work rules, including health and safety rules” (emphasis added) and situations where there has been an intervening change in the conditions of work, such as COVID-19. In fact, the “prevailing conditions of work” statute was the only standard relating to benefits rights included in the Social Security Act. It was also key to creation of the federal-state UI system because it provided assurance to the labor movement against the possibility that the compulsory nature of UI “might be used to break unions or weaken labor standards.” Absent this provision, which also allows workers to reject a position that is vacant due to a labor dispute, workers would be disqualified from receiving UI for refusing work that degrades the labor standards in their community.

What’s needed is strong enforcement of the federal law. Unfortunately, that enforcement has been conspicuously lacking. In fact, the U.S. Department of Labor (DOL) recently issued guidance that “strongly encourages” state UI agencies to push employers to report workers who fail to return to work—so that the workers can be disqualified from further receiving UI. In separate letters sent to U.S. Labor Secretary Eugene Scalia—one signed by more than 200 organizations and another signed by 22 U.S. Senators—supporters of workers’ rights urged the DOL to honor and enforce this critical provision of federal UI law that applies to workers who are confronted with health and safety concerns when called back to work in the context of COVID-19.

But when questioned repeatedly by Democrats at a recent hearing of the Senate Finance Committee, Secretary Scalia “abdicat[ed] his responsibility to keep workers safe by not providing guidance to states about when workers can turn down jobs in unsafe conditions and continue to receive unemployment benefits,” according to the ranking member, Senator Ron Wyden (D-OR). After failing to respond in writing to the letters referenced above, Secretary Scalia passed the buck in his testimony, claiming that it’s a matter for the states to regulate, not the federal government (“The requirement is that it be suitable work—suitable work has to be safe. And so the states are to judge that.”). Secretary Scalia’s testimony, however, flies in the face of the history of the Social Security Act, which sets the federal floor for the states to follow in order to maintain labor standards for all workers. This was also the intent behind the Fair Labor Standards Act and other federal labor laws passed in response to the Great Depression.

To their credit, several states have recently clarified how their “suitable work” laws apply to further protect workers receiving unemployment insurance from being forced to accept unsafe work. In Colorado, for example, the governor issued an executive order requiring the state UI agency to issue new COVID-19 guidelines. While Colorado employers have reported that more than 1,000 workers have not returned to work when recalled, 85 percent were allowed to continue receiving UI mostly because they or a household member were considered immunocompromised, or because adequate child care was not available, limiting the worker’s ability to return to work. Similarly, in North Carolina, the state UI agency issued a clear and transparent policy incorporating the COVID-19 workplace guidelines issued by the Centers for Disease Control and Prevention, while also extending the protections to workers who are caring for children or vulnerable household members.

While the UI program has been a convenient target for critics who attack it as out of touch with the current realities of work and the economy, today’s COVID-19 crisis provides a vivid reminder that the core features of the program are as timely and relevant now as they were when they were conceived and fought for 85 years ago. However, the program must continue to evolve, to expand to include all workers, and the DOL must fully enforce the federal UI laws during this unprecedented health and economic crisis. True to the Social Security Act’s mission, it's also time to pass federal legislation proposed by Senator Michael Bennet (D-CO) and others that would reverse the decades of weakening the UI program and restore the nation’s commitment to UI as the “first line of defense” against economic hardship and a key to a robust recovery.

LGBT Supreme Court Ruling and the Limits of Textualism

This column originally appeared in Bloomberg Law.

The result in the Bostock v. Clayton County U.S. Supreme Court decision is clear: Employers are forbidden by Title VII from firing an employee simply for being homosexual or transgender. The 6-3 vote establishes that as well as other aspects of claim such as that, if the employee’s sex has any role in the discharge, Title VII has been violated.

There is much else to discuss in the three opinions, but I want to focus on only one. On line 10 of the first paragraph of Justice Neil Gorsuch’s majority opinion, he announces his conclusion, and he proclaims that the outcome is “clear.”

He then acknowledges that those who adopted Title VII in 1964 “might not have anticipated their work would lead to this particular result,” and responds that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” That is because, when “the express terms” of the statute collide with “extratextual considerations … it’s no contest.”

Same Road, Different Destination

I agree with the majority that the better (correct, if you will) reading of the prohibition against discrimination “because of … sex” is that it applies to discriminations based on sexual orientation and gender preference. But I am troubled by the assertion that the result is clear and by the fact that the two dissenting opinions, also relying on a textualist approach to statutory interpretation, conclude that the result is clear—but in the opposite direction.

The most obvious lesson about textualism from Bostock is that textualism is not a tool that can be easily applied to produce an agreed upon result.

As for easy, the opinions run 172 pages, including a 44-page appendix. As for agreement, the dissents examine the same words as Gorsuch and reach a contrary conclusion. This does not mean that a close examination of the text of a statute is not the proper way for courts to interpret and apply it, but that the approach does not provide anywhere near the certainty that its supporters suggest.

In this respect, textualism is the statutory analog to constitutional originalism and results in the same lack of certainty in its application. For example, in District of Columbia v Heller, 554 U.S. 570 (2008), Justice Antonin Scalia for the majority and Justice John Paul Stevens for the dissent both focused on the same materials from the time of the founding and concluded that an originalist’s interpretation of the Second Amendment produced diametrically opposite conclusions about the constitutionality of the District’s restrictions on handguns—which both thought to be clear in their favor.

Method Used to Reach Result

I do not wish to debate whether originalism or textualism is a proper or even the most proper means of interpreting the Constitution or a statute, but rather I only ask their supporters to acknowledge that method alone cannot answer hard questions.

Turning to Title VII, I find it hard to accept Gorsuch’s conclusion that the outcome is “clear” or that the text “demands” this result, and not primarily because his opinion took 33 pages to prove it. I agree with the justice’s reasoning in rejecting the argument that, because the Congress that enacted Title VII did not envision this outcome, that controls the court if the text is best read to reach a different result.

And I agree with his hypotheticals in which he shows that an employer who fires a man because he is attracted to another man, but does not fire a woman who is attracted to the same other man, has fired the male employee “because of [his] sex,” which is what Title VII forbids.

My question is, how can Gorsuch say that his reading is clear in the face of the two dissents? To pick one example from Justice Brett Kavanaugh’s opinion, for many years the courts of appeals unanimously concluded in 10 different opinions that Title VII did not protect gays and lesbians from employment discrimination.

I do not accept Kavanaugh’s conclusion about the proper meaning of “because of … sex,” but can the meaning of that phrase be so clear that all 30 federal judges who heard those earlier cases would have flunked a course in statutory interpretation for taking the opposite position?

As an advocate, I try not to say something is clear unless I am very sure that I am correct because I do not want to have to answer a judge’s question when she expresses some doubt on the point. Perhaps because Supreme Court justices do not have to worry about that concern, they are willing to find clarity when I would not, but I do not think that is the whole answer.

Rather, I wonder—and it is not based on any hard evidence—whether certainty that a judge has reached the correct conclusion is an essential ingredient in methods of statutory or constitutional interpretation whose supporters promise a certainty, free from the judge’s own preferences, that they cannot deliver.

It’s just an idea, and perhaps someone will show me why I am mistaken.

Alan B. Morrison is the Lerner Family Associate Dean at George Washington University Law School where he teaches constitutional law.

State Preemption and Local Responses in the Pandemic

Over the past decade, the misuse of state preemption has significantly limited the power of cities and other local governments to solve problems for their residents. Now, with the nation facing the COVID-19 pandemic, the high cost of undermining local authority and independence has become apparent. Existing and new COVID-19-related state preemption has hampered local government response to the crisis, made it harder to protect the lives and livelihoods of their residents, and impeded early efforts towards equitable recovery.

State Preemption before the Pandemic Left Deep Vulnerabilities

As an ACS Issue Brief explored in detail, there has been a steep increase in state preemption over the past ten years across a broad and growing range of economic, labor, health, environmental, and social issues. Many of the local policies preempted by states would have been most beneficial to people of color, low-wage workers, and women—the same communities disproportionately hurt by the health and economic effects of COVID-19.

A decade of preemption has left cities starting from behind in their response to the pandemic in critical policy areas such as paid sick leave, tenant protections, and access to critically needed broadband. To begin with paid sick leave, while local policies proliferated in some states to protect workers, 23 states with preemption in place as the crisis emerged prevented cities from acting. Some preempting states, including Indiana, Michigan, and North Carolina, were forced to enact emergency paid sick leave policies to cover health care and other workers on the frontlines. In other states, including Tennessee and Florida, advocates have asked their governors to suspend paid sick leave preemption so local governments can do more to protect residents.

The economic fallout from the pandemic, moreover, turned America’s housing crisis into an emergency that forced local and state governments to implement eviction and foreclosure moratoria to keep families from losing their homes. But as state-level moratoria have been ending, preemption has interfered with local governments’ ability to protect vulnerable tenants in crisis. In Wisconsin, the Tenant Resource Center explained, “While other communities take necessary action to enact moratoriums on eviction proceedings, we’re prevented from doing so.” By contrast, in California, in a welcome sign of a cooperative state-local relationship, Governor Gavin Newsom used an Executive Order to suspend state preemption of local eviction regulations.

COVID-19 has made fast, affordable, and reliable Internet access essential as Americans have been forced to work, learn, and find medical treatment online. But in 19 states some form of state preemption has kept local governments from building or expanding access to municipal broadband—limitations that disproportionately hurt people of color, low income, and rural residents even before the pandemic. Many states have acted to increase internet access and decrease costs—including states where preemption is in place. For example, in Nebraska, the Public Service Commission has allocated a million dollars to reimburse internet providers for providing service to low-income families.

State Preemption Hampered Local Emergency Responses

In addition, state Executive Orders that included express preemption issued during the emergency blocked or weakened local public-health responses. Certainly, in some states, governors issued statewide stay-at-home orders that served as a regulatory floor that allowed local governments to be more protective of public health based on local conditions. In Maryland, for example, Governor Larry Hogan allowed for a flexible community-based approach to lifting the state’s stay-at-home order, with county leaders making decisions regarding the timing of reopening in their jurisdictions. Prince George’s and Montgomery Counties and the City of Baltimore, home to the state’s largest African-American and Latinx populations, opted to move on a slower timeline.

But that collaborative approach was not the norm. In many states, including Arizona, Georgia, Florida, Mississippi, South Carolina, Texas, Tennessee, West Virginia and others, statewide stay-at-home orders established a regulatory ceiling barring efforts by cities and counties to impose stricter requirements than the state was willing to impose to protect the health and safety of residents. In Arizona, Governor Doug Ducey issued an Executive Order prohibiting any county, city, or town from issuing any order or regulation “restricting persons from leaving their home due to the COVID-19 public health emergency,” or closing the long list of businesses Ducey deemed “essential.” While several Arizona mayors believed the Governor’s list of essential services was too broad, they also believed Ducey’s Order preempted them from closing businesses included on the state’s list of essential services.

Georgia Governor Brian Kemp set the most aggressive reopening course when his statewide shelter-in-place order expired at the end of April, stressing that in lifting his directive, “local action cannot be taken that is more or less restrictive.” Atlanta Mayor Keisha Lance Bottoms condemned the decision. “It is the governor’s prerogative to make this decision for the state, but I will continue to urge Atlanta to stay at home, stay safe and make decisions based on the best interests of their families.”

Mississippi Governor Tate Reeves’s statewide mandatory stay-at-home order preempted localities from enforcing stricter restrictions, forcing the cities of Tupelo and Oxford to rescind local measures already in place. When Texas Governor Greg Abbott let his state’s stay-at-home order expire, he made it clear that his new order “supersedes all local orders.” Texas Attorney General Ken Paxton then warned officials in Austin, Dallas, and San Antonio to roll back “unlawful” local emergency orders that imposed local public health safety measures, hinting that there would be lawsuits if the cities did not comply.

And some states did not issue any stay-at-home orders but still preempted local governments from issuing their own orders. Iowa Governor Kim Reynolds, for example, did not issue a statewide stay-at-home order, but local officials, including Cedar Rapids Mayor Brad Hart, were prevented from issuing local orders under their emergency mayoral powers. As Hart lamented: “This week I spoke directly with the Governor who confirmed her opinion, which is supported by the Iowa Attorney General, that cities and counties in Iowa do not have the authority to close businesses or order people to stay in their homes.”

State Preemption and the Long Road to Recovery

Local governments are going to be on the front lines of recovery efforts and state preemption will continue to be a barrier to an equitable path forward. The fact that 48 states limit local fiscal authority, many quite significantly, will impede the economic recovery of cities, towns, and counties, with weighty consequences for the people who rely on local public health, police, fire, education, and other services.

In the aftermath of the 2007–08 housing crisis, moreover, local fiscal distress led to municipal bankruptcies, the imposition of state emergency managers, and other state takeovers of local governments. As the devastating experience of Flint, Michigan, attests, this kind of fallout can have dire consequences. Given the impact of the current downturn on local finances, we are likely to see similar state interventions in the recovery ahead.

Similarly, housing will be as critical an issue in the recovery as it has been in the emergency, and preemption will be a significant barrier to local policy. Evictions and foreclosures disproportionately affect people of color, women, and low-wage workers, and local governments are looking at a range of tenant protections in the weeks and months ahead. But tenant protections are among the range of equitable housing policies of various kinds preempted in 31 states, including rent regulation, inclusionary zoning, and source-of-income anti-discrimination.

Finally, the federal government has failed to issue mandatory protections or standards to protect workers from exposure to COVID-19 meaning that states and local governments are not preempted from adopting their own protections. Some cities like Los Angeles and Dallas have moved to fill in the gap for workers, for example adopting clear mask requirements. Already, however, states are interfering with local efforts to provide workers with protections that help keep workers safe. Governor Abbott in Texas issued an Executive Order that banned local governments from enforcing an individual mask mandate. When mayors pushed back, the governor said local governments could order businesses to require face masks in their stores, but localities could not mandate mask wearing in public. In Nebraska, Governor Pete Ricketts went further, telling local governments they won’t get any federal COVID-19 money if they require people to wear masks.

Conclusion

The COVID-19 pandemic has laid bare more than the ongoing intergovernmental struggle over individual policies. It has exposed the need to reform the fundamental balance of power between cities and states. We are seeing daily reminders that the misalignment between city and state governments is not just theoretical—it has life and death consequences. As the Local Solutions Support Center and the National League of Cities recently argued in a new vision for home rule—and a blueprint for legal change—the powers of cities to rule themselves need to be updated to reflect the fast-changing demands and challenges of pandemics, racial and economic equity, climate change, and more.

DACA: Supreme Court Victory, Uncertain Future

On June 18, 2020, the Supreme Court issued a long awaited decision in DACA or Deferred Action for Childhood Arrivals. The decision was authored by Chief Justice Roberts in a 5-4 opinion holding that DACA is reviewable by the Court. On the merits, the Court held that the agency’s (Department of Homeland Security) decision to end DACA was “arbitrary and capricious” under administrative law.
While the Court upheld DACA on a narrow issue of administrative law, the human impact of this decision is significant and means that the DACA policy, implemented 8 years ago under the Obama administration, will continue. The DACA decision means that more than 600,000 people who came to the United States before the age of 16, have lived in the United States for more than one decade, and have contributed profoundly to America, a country they call home, will continue to be protected under a kind of prosecutorial discretion called “deferred action.” Last week’s outcome opens the door for thousands of new dreamers to request deferred action for the first time since the policy ended and realize their potential, while serving on the frontlines, going to college, providing for their parents, and building their own families. The future is uncertain but the victory of today’s decision is crystal clear.
One focus by Chief Justice Roberts was on agency memos issued by the Department of Homeland Security about the end of DACA -- one in 2017 (Duke Memo) --  announcing the end of DACA, and the other in 2018 (Nielsen Memo), nine months later. As described by the Court, both memos rested the termination of DACA on the conclusion that it was unlawful but the Nielsen Memo went one step further by listing three policy reasons for ending DACA, including but not limited to the importance of congressional action and ‘sending a message’ about immigration enforcement. The Nielsen Memo mentioned the reliance interests of DACA recipients but found they were outweighed by the law and reasons for ending DACA. The Supreme Court viewed these policy reasons as “impermissible post hoc rationalizations” and in doing so stressed the value of “administrative accountability”, shedding light on the basic rule as follows: “An agency must defend its actions based on the reasons it gave when it acted.”
The Court next turned to whether the decision for ending DACA was “arbitrary and capricious” under administrative law and to do so focused on whether the Duke Memo considered the “hardship” or alternate options for protecting DACA recipients. The Court found that Duke failed to consider reliance interests, and underscored this point through its own examples “Had Duke considered reliance interests, she might, for example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion.” These defects made the Duke Memo “arbitrary and capricious.”
Justice Kavanaugh issued a dissent, believing that the the court should have considered explanations given by DHS in 2018. He opined that he was unaware of any other case that has used the legal doctrine of “post hoc” justification to exclude an agency explanation and opined that the decision “seems to allow the Department on remand to relabel and reiterate the substance of the Nielsen Memorandum, perhaps with more elaboration.”
Justice Thomas wrote a dissent, joined by Justice Alito and Justice Gorsuch. Though the case was not about whether DACA is legal, Justice Thomas made his views clear at the start of his opinion by labeling DACA as “unlawful from its inception.” Much like the announcement by former Attorney General Sessions, he declared DACA unlawful without providing explanation, confused “lawful presence” and “lawful status” (a distinction with a difference in immigration law), and misunderstood the critical role of prosecutorial discretion in immigration which in turn operates as a system where people are removed and others are left alone. With limited resources, DHS can only target a fraction of the people who qualify for immigration enforcement. Justice Thomas concludes that DACA has “fundamentally altered the immigration laws” but the reality is that deferred action policies like DACA operate in law’s domain.
How the story of DACA continues or ends remains to be seen. The Supreme Court “remanded” or sent the case back to the lower courts to issue opinions consistent with today’s ruling. This means that the agency (DHS) will be given specific instructions about how to reinstate DACA as it existed in 2012. The openings are wide but so too are the opportunities for DHS to revisit and create a new memorandum to end DACA with “more” explanation. Meanwhile, Congress still has the right and responsibility to pass a solution that provides legal status to those with DACA, their families and others who have lived in limbo and outside an immigration statute that has not been updated in more than 30 years.
DACA decision resources:DACA Decision: https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf
DACA Resources from Penn State Law: https://pennstatelaw.psu.edu/immigration-time-of-trump#DACA/DAPA
Amicus Brief to the Supreme Court by Immigration Law Scholars: https://medium.com/@shobawadhia/daca-at-the-supreme-court-immigration-law-scholars-brief-cfef6e7e7262
Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases: https://nyupress.org/9781479829224/beyond-deportation/
This originally appeared on Medium.

Reflections from a Black Lawyer on Juneteenth

I knew that I wanted to be a lawyer early on in my childhood.

If you had asked me for the source of this career aspiration ten years ago, I likely would’ve referenced the John Grisham novels that I consumed as a kid. Then I would’ve told you about the inspiring example set by my aunt Joy, a solo practitioner based in Louisiana.

I became a lawyer at 25 and took great pride in fulfilling that dream - both for myself and my family. Now, with four years of practice behind me, I can stop and reflect more incisively on what it means to be a Black lawyer in the twenty-first century.

As a preliminary point, my 2020 self will be more forthcoming about why I became an attorney. It is a thought process that Black people have employed for nearly 250 years in this country and for more than 400 years on this land, all in an effort to survive: I wanted to become a lawyer to prove that I am worthy. To demonstrate that I am deserving of the accommodations I occupy, the work in which I engage, and the existence that is my own.

I became a lawyer to validate my bookish ways, to show that Black people can be attorneys, and to tell the world that I’m exceptional. Taking this reasoning to its logical conclusion, I should therefore be given what my ancestors were consistently denied.

Not surprisingly, I played right into the hands of respectability politics with this rationale.

By diving into my legal career and reading more about America’s deep-rooted investment in anti-Black racism, I learned how tenuous my true justification was.

Grappling with the works of writers like Isabel Wilkerson, Toni Morrison, and Ibram X. Kendi, I saw that the consistent denial of the full humanity of Black people was integral to every era of this country’s development. Despite our tenacity and ability to adapt within inhumane conditions, armed forces - whether white vigilantes or organized police departments - rose up to destroy any progress that had been made and slaughter entire communities of Black people.

I think of Black people across the South who sought and won elected office during Reconstruction, only to be thwarted by the Compromise of 1877 and the removal of federal troops from the South. I consider the circumstances of the prosperous Greenwood community in Tulsa, Oklahoma - burned to the ground in mere hours as Black adults and children were massacred by their white neighbors. I look back to the MOVE bombing in Philadelphia 35 years ago, and I recognize how all levels of the United States government have either been complicit in the racial violence inflicted upon Black people or have been the direct perpetrators of it.

In my work for two racial justice organizations in D.C. - the Lawyers’ Committee for Civil Rights Under Law and Advancement Project’s National Office - I witnessed how the school-to-prison pipeline and voter disenfranchisement laws attempt to relegate Black people to a subhuman category in present times. I tracked the legacies of centuries-old racist policies that operate to keep Black people away from decent housing, adequate health care, the ballot box, educational opportunities, and employment prospects. I heard from directly impacted people who fought to dismantle draconian laws and policies in their communities. I began to more fully understand how deep of a commitment this country has to white supremacy.

But, through all of this state-sanctioned violence and white domestic terrorism, at least I could proclaim that I’m an attorney?

Arriving at this moment - in the midst of a global pandemic and international uprisings against police violence - I feel compelled to reject the tenets of respectability politics even more forcefully. I am certainly determined to use my occupation on the quest to Black liberation, but my career definitely won’t be the thing that saves me.

Black people have done everything imaginable to prove our humanity; we shouldn’t feel any pressure to do anything else.

Despite that truth, I draw much inspiration from what feels like the present revolutionary moment. Black people find themselves alongside multiracial throngs of protesters - all speaking out against police violence and proudly shouting that Black Lives Matter. Local government bodies are taking significant steps to defund police departments, yielding to the pressure placed on them by organizers and community members for years. These notions fit squarely within the framework of prison industrial complex abolition, with the work of Black women like Dr. Angela Davis, Ruth Wilson Gilmore, and Mariame Kaba increasingly entering the public discourse.

Most encouraging of all, people continually acknowledge that the experiences of all Black people must be elevated. A historic march for Black trans lives occurred a day prior to the Supreme Court ruling that the protections of Title VII of the Civil Rights Act of 1964 extend to LGBTQ people. Such actions are critical in a moment where so many people are calling for a radical reimagining of public safety.

One outside of police, surveillance measures, and prisons. One where Black people, especially women and LGBTQ people, feel as though thorough systems of accountability are in place to address harms that may occur.

This Juneteenth, as I look toward the future with a sense of optimism, I take great joy in my individual journey as a Black person and attorney, as well as the collective sojourn of my people. I will continually push back against that urge to be respectable or otherwise perfect to fully engage with my humanity.

I thank the Black people who received word of their freedom in Texas 155 years ago for providing blueprints for a proper celebration and an on-going struggle for justice.

Safe Policing for Safe Communities: Trump’s Non-Reformist Order

Professor Ravenell has written extensively on Civil Rights Litigation and Police Liability. She thanks Austin Skelton for his assistance with this project and credits him for the photographs included herein.

After more than three weeks of civil protests and widespread calls for police reform, President Trump finally has issued an Executive Order calling for “Safe Policing for Safe Communities.” With a perfunctory reading, one might think that the order hits many major points for reform:

Certification and credentialing of state and local law enforcement agencies
Databases and information sharing regarding incidents of excessive force
Enhanced training for policing mental health, homelessness, and addiction
Additional federal programs and funding for police.

However, a closer examination reveals that, from beginning to end, Trump’s order is light years behind the reform that activists are demanding and that state and local legislatures are considering. The order, like so many of Trump’s earlier statements, reflects an antiquated, law and order approach to policing.

The Executive Order begins with a familiar phrase: “all persons are created equal and endowed with the inalienable rights to life and liberty,” the same line that Thomas Jefferson wrote to open the Declaration of Independence. Yet, for many Americans, this phrase recalls a time when blacks were slaves and viewed as 3/5 a person. As Chief Justice Taney stated in Dred Scott, “[i]n the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.” For Trump to issue an executive order about policing in 2020, a time when protestors are chanting “Black Lives Matter,” with this particular opening phrase, is at best ignorant and at worst, another example of the race baiting that has and continues to underscore his presidency. Given his recent decision to hold his first political rally since March in Tulsa Oklahoma, the site of the Black Wall Street Massacre, on Juneteenth, a date that commemorates the end of slavery, it seems that between ignorance and race baiting, it’s more likely the latter. (Fortunately, Trump moved the rally to the next day, still in Tulsa, after his “African American friends and supporters” “reached out to suggest that [he] consider changing the date.”)

The title of the order itself, “Safe Policing for Safe Communities” reflects the idea that police are necessary to keep communities safe. Yet, a recent Vice article offers strong evidence that police are not a prerequisite for a safe community and, may actually expose some community members to unnecessary dangers. The article details how some cities have assigned traditional police duties to other professionals. For example, Eugene, Oregon’s CAHOOTS program sends specially trained teams to answer certain calls traditionally assigned to the police, like homeless, intoxication, and mental illness. Rayshard Brooks, a black man who was killed in Atlanta after a 911 call reporting that he was sleeping in a Wendy’s drive-thru, exemplifies the danger of “routine” police interactions. Police officers shot Brooks in the back three times, killing him, after he fled with one of the officer’s tasers. To be clear, the solution is to call the authorities. But systematic police reform requires that we imagine authority beyond police. Had an unarmed interventionist, like CAHOOTS, arrived and escorted Brooks home, he, in all likelihood, would still be alive. As Atlanta’s mayor Keisha Lance Bottoms observed following Brooks’ killing, “there has been a disconnect with what our expectations are and should be, as it relates to interactions with our officers and the communities in which they are entrusted to protect.” Trump’s Executive Order starts from a point upon which many disagree –that police make our communities safer.

Rather than transferring responsibilities from over-burdened police officials to other professionals better equipped to deal with the challenges posed by mental illness, homelessness, and addiction, Trump’s Executive Order doubles down on the role of police officials. The Order does little to change the status quo. Yes, it is true that “law enforcement officers often encounter such individuals suffering from these conditions,” but this need not be the case. Emergency response systems currently assign different responsibilities to firefighters, EMTs, and police officials. It is hardly a stretch to imagine adding other professionals, like counselors and interventionists, to this system.

Cities and municipalities have looked to police officials to solve far too many problems. As Abraham Maslow observed in 1966, “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” To its credit, Trump’s Executive Order does suggest the possibility of pairing “social workers or other mental health professionals working alongside law enforcement officers so that they arrive and address situations together.” Yet, having police present in these circumstances is like taking your hammer when you all you need is your screwdriver. Progressive police reform does not depend upon the presence of police officials. It expands the toolbox.

Section 2 of the Order charges the Attorney General with allocating funding to state and local agencies that create “independent credentialing bodies.” Given what transpired in Lafayette Square on June 1, this seems particularly ironic. Not only does the Order fail to address unlawful uses of force by federal law enforcement officials (like the National Guard), but it tasks the Attorney General with overseeing this particular provision; the same official who ordered police to use force against protestors and news media in Lafayette Square. Attorney General Barr has stated, “When I came in Monday, it was clear to me that we did have to increase the perimeter on that side of Lafayette Park and push it out one block. That decision was made by me in the morning. It was communicated to all the police agencies.” Recently, more than 1,250 former Justice Department officials have petitioned for an investigation into Barr’s role. This is who is charged with police reform.

Section 5 of Trump’s Executive Order promises more funding for police to, among other things, pay for credentialing programs and retain “high-performing law enforcement officers.” This is a sharp contrast to protestors rallying cries to “defund the police.” Of course, “President @realDonald Trump stands against radical efforts to defund police departments.”

Trump introduced this Order by declaring that “the vast majority of police officers are selfless and courageous public servants. They are great men and women.” Drawing attention to “good police” is convenient because when the problem is limited to a “few bad apples” there is no need for systematic reform. This Executive Order is not systematic reform. It is hardly reform. But why does America need reform when, according to Trump, “Americans know the truth: Without police, there is chaos; without law, there is anarchy; and without safety, there is catastrophe”? Trump wants us to believe that we need police to keep us safe. He wants his base to believe that disagreeing with this statement is Unamerican. America probably needs police. America definitely needs systematic police reform. Trump’s Executive Order offers police without the reform.