Donald Trump and Andrew Jackson: More in common than just populism

U.S. President Donald Trump speaks in front of a portrait of former U.S. President Andrew Jackson. REUTERS/Kevin Lamarque
U.S. President Donald Trump speaks in front of a portrait of former U.S. President Andrew Jackson. REUTERS/Kevin Lamarque

Billy J. Stratton, University of Denver

At President Donald Trump’s request, a portrait of former President Andrew Jackson now hangs in the Oval Office. Commentators have cast Trump’s populist appeal and inaugural address as “Jacksonian,” while others have tried to emphasize their major differences. One writer lauded Jackson as “the president who, more than any other, secured the future of democracy in America.” The Conversation

However, these comparisons overlook experiences of marginalized people while defining history in terms of the ideologies of progress and American exceptionalism.

Jackson’s intolerant attitudes and harsh treatment of African-American and Native American peoples have not gone without mention. They are indeed inescapable. As a scholar who has written about Native American history and literature, I am aware of just how often the perspectives of native people are neglected in conventional historical discourse.

The criticisms Trump has directed against Indian casinos in the 1990s, along with his insult of calling Senator Elizabeth Warren “Pocahontas,” casts his veneration of Jackson in a particularly disturbing light.

Andrew Jackson and the Trail of Tears

Jackson was a staunch supporter of slavery and policies that forcibly removed Indians from their lands. The passage of the 1830 Indian Removal Act was aimed at isolating native peoples to prevent conflict over territory and allow increased settlement.

The solution, originally conceived by Thomas Jefferson, was to empower the government to evict native peoples living east of the Mississippi River from their lands. Those subjected to removal would be moved “beyond the white settlements” to distant reservations in the West, known at the time as “Indian territory.” It was a form of segregation.

R. Ridgway, engraving, c.1859, Muscogee Creek Chief William Weatherford surrenders to Andrew Jackson after the 1814 Battle of Horseshoe Bend. As a result, Jackson forced the Creek to cede over 20 million acres of land in Alabama and Georgia, including almost two million acres claimed by Cherokee Nation, allies who had fought in support of Jackson’s forces.
Library of Congress

In 1832, the Supreme Court struck down Georgia laws aimed at depriving the Cherokee people of their rights and property in Worchester v. Georgia. The court affirmed a degree of native political sovereignty and annulled state jurisdiction over native lands. It was the final case of the so-called Marshall trilogy, named for Chief Justice John Marshall – the author of the majority decisions – and established major precedents of federal Indian law.

The immediate effect of the decision was to grant protections to the Cherokee Nation, and by extension to other tribes. It could have prevented forced removals, but Jackson was reportedly indignant at the result. According to the famed journalist Horace Greeley, Jackson was said to have responded, “John Marshall has made his decision, now let him enforce it.”

Whether Jackson spoke those words has been contested by historians ever since. But his strong support for removal policy and subsequent refusal to enforce the court’s decision made his position clear. The response was a stern rebuke of the legitimacy of the Supreme Court, the doctrine of the separation of powers, the rule of law and ultimately the Constitution.

The result was the Trail of Tears, in which Cherokee and other native peoples of the Southeast were forced at gunpoint to march 1,200 miles to “Indian territory.” Thousands of Cherokee died during the passage, while many who survived the trek lost their homes and most of their property. Ironically, much of the land on which the Cherokee and other removed tribes were settled was opened to homesteading and became the state of Oklahoma some 60 years later.

Yet, the violent manner by which removal was carried out had been ruled illegal and unconstitutional by the Supreme Court in the Worchester case.

New assault on native rights?

The new administration is showing similar malice toward the legal status and rights of native peoples secured in American law. For example, Trump recently lifted President Obama’s injunction halting the construction of the Dakota Access Pipeline. Last week’s eviction of pipeline opponents from Sacred Stone Camp, led by the Standing Rock Sioux Nation, under threats of arrest has led to renewed uncertainty about native rights.

Statements by Trump’s advisers and government officials calling for the privatization of native lands guaranteed by treaties to seize valuable natural resources have only heightened these concerns.

This rhetoric echos policies that oppressed native people in the past. These include allotment, extending from 1887 to the 1930s, which eliminated communal ownership and led to the taking of millions of acres of native land. This was followed by termination and relocation of the 1950s, aimed at eliminating the legal status of native people while sending individuals from reservations to urban areas, further depriving native peoples of their lands, liberty and culture.

Native treaties are unequivocally assured in Article 6, the Supremacy Clause, of the U.S. Constitution. It states: “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”

Tribal leaders negotiated treaties in good faith to reserve what amounts to a fraction of their original lands, with all attendant rights. Privatizing tribal lands would be a violation of these treaties.

The casual rejection of these covenants heighten the insecurity among native people evoked by Trump. His esteem for Jackson and their shared attitudes toward their legal rights and status should give us pause. That journalists and historians continue to offer positive views of Jackson’s presidency in light of this legacy underscores how the suffering of native people continues to be ignored.

Billy J. Stratton, Professor of contemporary American literature and culture; Native American studies, University of Denver

This article was originally published on The Conversation. Read the original article.

Political Scrutiny 101 Top Stories in your inbox. Subscribe.

Netanyahu’s meeting with Trump: Good for Israeli-Palestinian peace?

Trump and Netanyahu participate in a joint news conference on Feb. 15, 2017. P Photo/Pablo Martinez Monsivais
Trump and Netanyahu participate in a joint news conference on Feb. 15, 2017. P Photo/Pablo Martinez Monsivais

Dov Waxman, Northeastern University

At their meeting at the White House today, U.S. President Donald Trump asked Israeli Prime Minister Benjamin Netanyahu to “hold back on settlements for a little bit.”

There are now more than 400,000 Israelis living in over 100 settlements located in the West Bank. Another 300,000 or so are living in East Jerusalem, which Israel has officially annexed. Driven by a powerful combination of religious nationalism, economic incentives and security concerns, the continued expansion of Israeli settlements is one of the main reasons so many seasoned observers of the conflict, myself included, are increasingly pessimistic about the prospects for peace between Israel and the Palestinians.

A source of tension

Israel’s settlement building has long been an irritant in U.S.-Israeli relations. Successive U.S. administrations have opposed it, viewing it as a provocation to Palestinians and an obstacle to a two-state solution to the Israeli-Palestinian conflict.

The Obama administration was particularly vocal and unyielding in its opposition to settlement construction. It insisted that all Israeli settlement building had to stop, whether it was taking place in Jewish neighborhoods in East Jerusalem, in large settlement blocs near Israel’s pre-1967 border or in remote outposts deep inside the West Bank. In fact, the Obama administration’s refusal to officially countenance any settlement building was a source of persistent tension in U.S.-Israeli relations over the past eight years.

The Israeli settlement of Maaleh Adumim looms over Arab Bedouin shacks in the West Bank, Jan. 22, 2017. AP Photo/Mahmoud Illean
The Israeli settlement of Maaleh Adumim looms over Arab Bedouin shacks in the West Bank, Jan. 22, 2017. AP Photo/Mahmoud Illean

The Trump administration, by contrast, looks likely to adopt a more permissive attitude toward Israeli settlements. To be sure, it will not be as tolerant as those on the Israeli right and some on the American right initially hoped it would be.

During the presidential election campaign and before taking office, Trump and some of his advisers indicated that he was supportive of Israeli settlement building. Trump had even given money to the settlement of Beit El, and his designated ambassador to Israel, David Friedman, has raised millions of dollars for it. Buoyed by such high hopes, Naftali Bennett, the leader of the right wing Jewish Home Party which draws much of its support from Israeli settlers, triumphantly declared after Trump’s election victory: “The era of a Palestinian state is over.”

A few weeks into his presidency, however, it is becoming clear that such triumphalism was premature. Trump has expressed a desire to make in his words “the ultimate deal” and broker a peace agreement between Israel and the Palestinians. That will inevitably involve the establishment of a Palestinian state – even if the Trump administration doesn’t explicitly insist upon this. Trump has also stated in a recent interview with an Israeli newspaper that settlements are not “a good thing for peace,” and “every time you [Israel] take land for a settlement, there is less land left [for Palestinians].”

Trump will probably work out an agreement with Netanyahu that will allow Israel to build in the large blocs of settlements that it plans to keep in any peace deal and eventually annex. Such an agreement, similar to one reached in 2004 between President Bush and then-Israeli Prime Minister Ariel Sharon, will benefit both Trump and Netanyahu, and remove a source of controversy and conflict in the relationship between the United States and Israel.

But although it will be good for U.S.-Israeli relations, it will do nothing to improve Israeli-Palestinian relations. If anything, it will only further damage an already destructive relationship. After all, the land on which Trump will allow Israel to expand its settlements is land that the Palestinians regard as rightfully theirs.

There is something seriously amiss when an Israeli leader is interested only in reaching an agreement with an American president, rather than with his Palestinian neighbor. While gaining American acquiescence for future Israeli settlement building is certainly useful for Netanyahu, it is ultimately the Palestinians who must consent to Israel’s plan to eventually annex the large settlements, probably in exchange for an equivalent amount of land from within Israel’s pre-1967 borders.

The Trump administration cannot confer legitimacy on Israel’s settlements. Nor is it entitled to give Israel permission to build on land that the international community, international law and the Palestinians themselves regard as “occupied Palestinian territory,” that might eventually become part of a future Palestinian state.

Sadly for the Palestinians, they are in no position to stop Israel from building in the West Bank and East Jerusalem. They can only watch helplessly from afar as Israel and the United States decide on what happens to their land.

Nothing demonstrates more clearly the weakness of the Palestinians and the failure of their leadership to achieve their national aspirations. While the Palestinians and their leaders are no doubt partially responsible for their relative powerlessness, the Netanyahu government has done little, if anything, to bolster the Palestinian authority in the West Bank. While Netanyahu flatters and courts Trump, he largely ignores Palestinian President Mahmoud Abbas. Surely, if Israel is ever to make peace with the Palestinians, the prime minister of Israel should also focus on trying to talk with his Palestinian counterpart, and overcoming the latter’s resistance to such talks.

Whatever agreement concerning settlements Trump and Netanyahu might reach, it will not help to move Israel and the Palestinians any closer to a peace agreement.

The Conversation

Dov Waxman, Professor of Political Science, International Affairs and Israel Studies, Northeastern University

This article was originally published on The Conversation. Read the original article.

Subscribe to our mailing list

White House in turmoil shows why Trump’s no CEO

Trump poses with his brain trust. Mark Lennihan/AP Photo
Trump poses with his brain trust. Mark Lennihan/AP Photo

Bert Spector, Northeastern University

Throughout the 2016 presidential campaign, Donald Trump made much of his business experience, claiming he’s been “creating jobs and rebuilding neighborhoods my entire adult life.”

The fact that he was from the business world rather than a career politician was something that appealed to many of his supporters.

It’s easy to understand the appeal of a president as CEO. The U.S. president is indisputably the chief executive of a massive, complex, global structure known as the federal government. And if the performance of our national economy is vital to the well-being of us all, why not believe that Trump’s experience running a large company equips him to effectively manage a nation?

Instead of a “fine-tuned machine,” however, the opening weeks of the Trump administration have revealed a White House that’s chaotic, disorganized and anything but efficient. Examples include rushed and poorly constructed executive orders, a dysfunctional national security team and unclear and even contradictory messages emanating from multiple administrative spokespeople, which frequently clash with the tweets of the president himself.

Senator John McCain succinctly summed up the growing sentiment even some Republicans are feeling: “Nobody knows who’s in charge.”

So why the seeming contradiction between his businessman credentials and chaotic governing style?

Well for one thing, Trump wasn’t a genuine CEO. That is, he didn’t run a major public corporation with shareholders and a board of directors that could hold him to account. Instead, he was the head of a family-owned, private web of enterprises. Regardless of the title he gave himself, the position arguably ill-equipped him for the demands of the presidency.

Catching up on the news, Senator? Pablo Martinez Monsivais/AP Photo
Catching up on the news, Senator? Pablo Martinez Monsivais/AP Photo

Public accountability

Several years ago, I explored the distinction between public and private companies in detail when the American Bar Association invited me to write about what young corporate lawyers needed to understand about how business works. Based on that research, I want to point to an important set of distinctions between public corporations and private businesses, and what it all means for President Trump.

Public corporations are companies that offer their stock to pretty much anyone via organized exchanges or by some over-the-counter mechanism. In order to protect investors, the government created the Securities and Exchange Commission (SEC), which imposes an obligation of transparency on public corporations that does not apply to private businesses like the Trump Organization.

The SEC, for example, requires the CEO of public corporations to make full and public disclosures of their financial position. Annual 10-K reports, quarterly 10-Q’s and occasional special 8-K’s require disclosure of operating expenses, significant partnerships, liabilities, strategies, risks and plans.

Additionally, an independent firm overseen by the Public Company Accounting Oversight Board conducts an audit of these financial statements to ensure thoroughness and accuracy.

Finally, the CEO, along with the chief financial officer, is criminally liable for falsification or manipulation of the company’s reports. Remember the 2001 Enron scandal? CEO Jeffrey Skilling was convicted of conspiracy, fraud and insider trading and initially sentenced to 24 years in prison.

Former Enron CEO Skilling learned the hard way that the buck stopped with him. Pat Sullivan/AP Photo
Former Enron CEO Skilling learned the hard way that the buck stopped with him. Pat Sullivan/AP Photo

Internal governance

Then there is the matter of internal governance.

The CEO of a public company is subject to an array of constraints and a varying but always substantial degree of oversight. There are boards of directors, of course, that review all major strategic decisions, among other duties. And there are separate committees that assess CEO performance and determine compensation, composed entirely of independent or outside directors without any ongoing involvement in running the business.

Whole categories of CEO decisions, including mergers and acquisitions, changes in the corporation’s charter and executive compensation packages, are subject to the opinion of shareholders and directors.

In addition, the 2010 Dodd-Frank Act requires – for now – regular nonbinding shareholder votes on the compensation packages of top executives.

And then there’s this critical fact: well-governed firms tend to outperform poorly governed ones, often dramatically. And that’s because of factors like a strong board of directors, more transparency, a responsiveness to shareholders, thorough and independent audits and so forth.

Trump celebrates the opening of his Taj Mahal Casino Resort in Atlantic City in 1990. Charles Rex Arbogast/AP Photo
Trump celebrates the opening of his Taj Mahal Casino Resort in Atlantic City in 1990. Charles Rex Arbogast/AP Photo

Trump’s business

None of the obligations listed above applied to Trump, who was owner, chairman and president of the Trump Organization, a family-owned limited liability company (LLC) that has owned and run hundreds of businesses involving real estate, hotels, golf courses, private jet rentals, beauty pageants and even bottled water.

LLCs are specifically designed to offer owners tax advantages, maximum flexibility and financial and legal protections without either the benefits (such as access to equity capital markets) or the many obligations of a public corporation.

For example, as I noted above, a corporate CEO is required by law to allow scrutiny of the financial consequences of his or her decisions by others. As such, CEOs know the value of having a strong executive team able to serve as a sounding board and participate in key strategic decisions.

Trump, by contrast, as the head of a family business was accountable to no one and reportedly ran his company that way. His executive team comprised his children and people who are loyal to him, and his decision-making authority was unconstrained by any internal governance mechanisms. Decisions concerning what businesses to start or exit, how much money to borrow and at what interest rates, how to market products and services, and how – or even whether – to pay suppliers or treat customers were made centrally and not subject to review.

Clearly, this poorly equips Trump to be president and accountable to lawmakers, the courts and ultimately the voters.

Another important aspect of the public corporation is the notion of transparency and the degree to which it enables accountability.

A lack of transparency and reluctance to engage in open disclosure characterized the formulation of Trump’s immigration ban that was quickly overturned in federal court. That same tendency toward secrecy was manifest throughout the campaign, such as when he refused to disclose much about his health (besides this cursory “note”) or release any of his tax returns.

While there’s no law that requires a candidate to divulge either health or tax status, that lack of transparency kept potentially vital information from U.S. voters. And Trump’s continuing lack of transparency as president has kept experts and advisers in the dark, leading to precisely the confusion, mixed messages and dysfunction that have characterized these early weeks. And, of course, this can quickly lead to a continuing erosion of public trust.

Trump, it should be noted, made one stab at a public company: Trump Hotels and Casino Resorts. That was an unmitigated disaster, leading to five separate declarations of bankruptcy before finally going under, all this while other casino companies thrived. Public investors ignored all the signs in favor of the showmanship and glitz of the Trump brand and, as a result, lost millions of dollars. Trump allotted himself a huge salary and bonuses, corporate perks and special merchandising deals.

What is especially telling about this experience is that, rather than speaking on behalf of fiduciary responsibilities for the best interests of the corporation, Trump noted, “I make great deals for myself.”

Multiplicity of voices

There is no need to be overly naive here.

Some CEOs also operate in a highly centralized manner, expecting obedience rather than participation from direct reports. All business executives expect a shared commitment from their employees to their corporate goals and value dependability, cooperation and loyalty from subordinates.

But the involvement of a multiplicity of voices with diverse perspectives and different backgrounds and fields of expertise improves the quality of resulting decisions. Impulsive decision-making by an individual or small, cloistered group of followers can and often will lead to disastrous results.

What lies ahead

Virtually every U.S. president, ranging from the great to the inconsequential and even the disastrous, have emerged from one of two groups: career politicians or generals. So why not a CEO president?

Without question, a background in politics does not guarantee an effective presidency. Abraham Lincoln, the consensus choice among historians for the best president ever, was a career politician, but so was his disastrous successor, Andrew Johnson.

Likewise, we can think of many traits of an effective corporate CEO that could serve a president well: transparency and accountability, responsiveness to internal governance and commitment to the interest of the overall corporation over and above self-enrichment.

Sadly, that is not Trump’s background. His experience overseeing an interconnected tangle of LLCs and his one disastrous term as CEO of a public corporation suggest a poor background to be chief executive of the United States. As such, “nobody knows who’s in charge” may be the mantra for years to come.

The Conversation

Bert Spector, Associate Professor, International Business and Strategy, Northeastern University

This article was originally published on The Conversation. Read the original article.

Subscribe to our mailing list

 follow on Twitter | friend on Facebook | read our blog | forward to a friend 

Four ways to stay mentally fit if you’re struggling with the political climate

A protest in New York’s Washington Square Park days after Donald Trump’s election. Muhammed Muheisen/AP
A protest in New York’s Washington Square Park days after Donald Trump’s election. Muhammed Muheisen/AP

Roxanne Donovan, Kennesaw State University

“This can’t be happening.”
“I feel like throwing up.”
“I don’t want to get out of bed in the morning.”
“Life is going to get a lot worse for people like me.”
“I’m so sad I can’t even think about it anymore.”
“Things are never going to be the same again.”

I’ve actually heard these statements from people pained by Donald Trump’s election. Such sentiments convey a mix of disbelief, despondency, powerlessness and fear.

That said, there are many people who are thrilled with the new administration. As a psychologist who researches the ways discrimination experiences impact well-being, however, I am particularly sensitive to those in distress.

My research, and that of other social scientists, helps explain why a Trump presidency is difficult for so many people – and particularly acute for those who have already experienced trauma based on some of the issues identified with Trump.

For example, many women who have been sexually abused were deeply affected because of recorded statements he had made about grabbing women in their crotches. Additionally, many African-Americans who felt empowered and validated by an Obama presidency felt deep sorrow and fear at Trump’s election, due in part to published accounts of his father’s company not renting to African-Americans. There is some good news among all this; there are strategies for coping.

Repeated stress wears the body down

It has proven hard for those opposed to Trump to adjust to his election. Many have felt like they are in the middle of an ongoing stress storm. Immigrants, for example, are stressed over concerns about being deported and separated from their families.

Making matters worse, some are more vulnerable to this storm’s impact than others. The more storms a person has endured, the greater the damage this new storm can inflict.

The reason why this happens is called allostatic load – the wear and tear on the body caused by ongoing stress. This deterioration is cumulative and can lead to physical, psychological and cognitive declines, including early death.

Along with genetics, environment and behavior, social demographics like race, gender and age also influence the weight of the load. University of Michigan public health professor Arline Geronimus and her colleagues captured this phenomenon when they examined allostatic load in black and white women and men.

They found that black participants, particularly black women, were more likely to have higher allostatic loads than white women and white men, above and beyond the effects of poverty. In other words, black people generally carried more stress in their daily lives.

Age matters too. Allostatic loads were similarly distributed across race and gender prior to age 30. From there, however, the loads disproportionately increased with age, revealing racial and gender gaps that widened over time (white men consistently had the lowest scores, followed closely by white women).

It’s not easy being different

Some psychologists believe the stress of otherness – being viewed and treated negatively due to group membership – is one reason for the unequal “weathering” effect. Mounting evidence gives credence to this belief.

My research group, for example, found black, Latino and Asian undergraduates report significantly more individual and ethnic-group discrimination than white undergraduates. Similarly, almost 100 percent of the black college women my collaborators and I sampled reported experiencing racial discrimination. In both studies, incidences of discrimination were associated with depressive symptoms and, in some cases, anxiety.

So the interplay between high allostatic load and low social position increases vulnerability. This is not good news for the many people of color, women, undocumented immigrants, sexual minorities and Muslims who are stressed out about a Trump presidency.

Strategies that can help

Before giving in to despair, there are reasons for cautious optimism. Psychological research points to promising coping techniques shown to lighten allostatic load and mitigate negative stress outcomes, even among those exposed to prolonged high-stress situations.

  1. Avoid avoidance. As tempting as it might be to address negative feelings through avoidance – think excessive shopping, working, drinking, eating, gaming, online surfing – doing so can be detrimental in the long run. Instead, choose behaviors shown to improve mood over time, like exercise and meditation. Mindfulness-Based Stress Reduction (MBSR), a standardized eight-week program that teaches mindful meditation, shows great promise at reducing stress and improving mood in a wide variety of populations.
  2. Problem-solve. Taking action to address a perceived stressor can be therapeutic. Called problem-focused coping in the psychological literature, this technique has been shown in my research and that of other social scientists to buffer the negative health effects of stress. Donating time or money to a preferred political candidate, party or cause or participating in a protest or letter-writing campaign are examples of problem-focused actions.
  3. Seek support. An aspect of problem-focused coping worthy of individual attention is social support. Connecting with empathetic others has the interrelated benefits of reduced stress, lower allostatic load and improved health and well-being. A solid support network doesn’t have to be large. It can contain just a few people you perceive as reliable. Need to build your network? Start by reaching out to those already in your life that you’d like to know better. Joining civic organizations or neighborhood groups are also good options. If you go this route, facilitate connections by volunteering to help the organizers.
  4. Get help. Sometimes our coping efforts don’t yield desired results, or we can’t bring ourselves to try anything. In these situations, professional help might be warranted. The American Psychological Association is a great resource for information about the benefits of psychotherapy and how to go about finding a therapist.

If you plan to endure the social changes under way with gritted teeth and clenched fists, I invite you to experiment with the above techniques to find what combination might work for you. Four years is a long time to be battered by a storm; preparation could mean a lot less damage, especially if previous storms have worn you down.

The Conversation

Roxanne Donovan, Professor of Psychology and Interdisciplinary Studies, Kennesaw State University

This article was originally published on The Conversation. Read the original article.

Trump’s Vow to ‘Destroy’ Johnson Amendment Could Wreak Havoc on Charitable World

Lyndon Johnson, who was friends with evangelist Billy Graham, wasn’t targeting religious groups when he pushed his eponymous amendment in 1954. AP Photo
Lyndon Johnson, who was friends with evangelist Billy Graham, wasn’t targeting religious groups when he pushed his eponymous amendment in 1954. AP Photo

Philip Hackney, Louisiana State University and Brian Mittendorf, The Ohio State University

President Donald Trump recently pledged to “destroy” the Johnson Amendment, a 63-year-old law that bans charities from engaging in political activities.

As Trump said this at the National Prayer Breakfast, his focus was on permitting religious groups to play a more vocal role in political campaigns. Our experience in researching nonprofit organizations, however, suggests there would be much wider and likely negative ramifications if he fully follows through on his pledge.

To understand the impact, we need to examine the Johnson Amendment and consider how the president might seek to alter it.

A broad reach

The Johnson Amendment is a provision of the tax code that prohibits nonprofits registered as charities – and thus eligible to receive tax-deductible donations – from intervening in “any political campaign.”

At its simplest, it means that a charity cannot encourage people to vote for or against a particular candidate for public office – though it can discuss political issues generally. So a nonprofit organization must choose between being designated a charity, which affords it the right to receive tax-deductible contributions, or another tax status that provides more leeway in politicking.

It arose from a long history of religious leaders engaging in political speech. While some of that history marks important and admirable roles, like those of the abolitionists, it is also marred by cases like the anti-Catholic rhetoric from some Protestant pulpits attacking Al Smith in the 1928 election.

The amendment takes its name from then-Senator Lyndon B. Johnson, who proposed it in 1954 to draw a clear line between politics and charity. Some suggest Johnson proposed the amendment because he was angry with a charity that had opposed his candidacy in a primary race for Senate.

Even before its passage, however, the IRS took a dim view of charities engaging in political activities. To the IRS, such activities didn’t further a “charitable purpose,” such as helping the poor, maintenance of public monuments, advancement of religion or the defense of civil rights.

Opponents claim the statute violates their rights under the First Amendment to freedom of speech and religion, while proponents argue it ensures the charitable tax deduction is not inadvertently subsidizing political speech.

Many churches and other religious organizations have led the way in objecting to the amendment’s chilling effect on speech. One effort to fight back, “pulpit freedom Sunday,” has been conducted annually to protest these restrictions. The day is marked by preachers flouting the rule and speaking openly about politics.

But since it applies to all charities, any attempt to “destroy” the amendment would affect the behavior of more than just pastors and priests. Schools, hospitals, addiction centers, food banks and other charities all could then advocate for or against candidates to some extent without losing their charitable status.

Tweaking the Johnson Amendment

Despite his rhetoric, Trump is unlikely to try to entirely eliminate the amendment, in part because his aim seems to be focused on religious speech.

So a bare minimum change could be an executive order that explicitly states that the administration will not enforce the law against religious groups as long as the political activities are conducted as an ancillary part of regular operations.

This would generally ensure that a preacher would not jeopardize a church’s tax-exempt status by supporting a candidate from the pulpit. A move like this would largely be symbolic since there is little evidence that the IRS has sought to revoke the charity status of a church whose preacher violated the ban, such as on pulpit freedom Sunday. The Treasury Department and the IRS may already believe that enforcement of the amendment in this context is impractical and may even violate laws protecting religious freedom.

Such a limited executive order would mean the IRS would still enforce the law when a church is engaged in more secular activity, such as acquiring a billboard to favor or oppose a particular candidate.

A more aggressive posture would be if Trump issues an order telling the IRS not to enforce the ban on churches under any circumstances. Although the idea of a president choosing to not enforce a law dutifully passed by Congress may seem odd and problematic, presidents have wide prosecutorial discretion.

President Obama, for instance used this power to direct his Justice Department to curtail enforcement of some violations of drug and immigration offenses. Its use can also run into legal challenges, as was the case with Obama’s immigration efforts.

On the legislative side, Congress is already pursuing its own modest efforts, such as the Free Speech Fairness Act. That would allow charitable groups to engage in political speech when it’s a normal part of their activities and the costs of doing so are “de minimis” – so no national candidate ads, for example.

While the impact of this bill remains uncertain, it would likely eliminate none of the challenges of enforcing the current ban and might raise more problems.

More ambitious approaches

A more ambitious legislative approach short of killing the amendment would be to add a carve-out that exempts houses of worship altogether. Such an effort would seem consistent with Trump’s goal of permitting religious groups more leeway in supporting candidates. An unintended consequence would be to increase the need for the IRS to answer the question of what constitutes a church.

We have seen this play out already on a smaller scale with the carve-out that exempts churches from filing annual financial reports. Atheist groups have filed lawsuits alleging unequal treatment, and others have sought to push the boundaries when filing for church status. The First Church of Cannabis and John Oliver’s bitingly satirical but short-lived Our Lady of Perpetual Exemption are two examples of unconventional “churches.”

John Oliver establishes a church.

In other words, this would almost certainly increase the flow of groups seeking church status. Besides forcing the IRS to answer that difficult question – what’s a church – it may also undermine public perceptions of churches more broadly.

If one takes the most literal interpretation of the president’s pledge, his aim would be to permit politicking by all charitable organizations. He might pursue this goal through an executive order, but a permanent change would require a legislative solution.

A full repeal of the amendment would have the potential to upend the entire nonprofit sector. After all, limitations on politicking provide a key line between organizations that can receive tax-deductible charitable contributions and those that cannot (e.g., social welfare organizations and political action committees).

A repeal would also open a new pathway for avoiding laws on the disclosure of campaign contributions, creating another so-called dark money channel.

If this line were removed, we should expect to see many organizations that are ostensibly political in nature seeking charity status so they can raise funds through tax-deductible gifts from undisclosed donors. And many nonprofits that weren’t previously political would likely expand to add such spending to their portfolio of activities.

Many fear that blurring the lines between goals intended to serve the general public and those aimed at special interests would undermine public trust in charities and ultimately even put the charitable deduction at risk. With this in mind, prominent nonprofit groups have objected to efforts to repeal the Johnson Amendment.

The push against repeal by charities should be a good indication of its potentially damaging effects. It’s not often that organizations push to retain limits on themselves.

A tricky business

Even if the prohibition goes away, unlimited political activity and its enforcement would remain a problem. That’s because political activity itself does not further a charitable purpose. And the IRS would still have to police whether charities were engaged in too much of it to justify charitable status.

Additionally, determining whether a particular comment or speech is even political can be quite difficult. For instance, if a minister gives a sermon asking his congregation to compare two candidates for office and determine whom Jesus would pick, has the minister engaged in political speech in his capacity as a representative of the church? The IRS has issued guidance with 21 different situations to explain how it makes such determinations.

At the moment, Congress appears reluctant to completely dismantle the Johnson amendment, perhaps because of the concerns we’ve listed above or others. So the likely change, if any, would be a minor shift that gives some nonprofits additional leeway to engage in political speech.

But as we’ve shown, even modest changes to the amendment in this direction are risky and could lead to unintended consequences tantamount to “throwing the baby out with the bathwater.” Given this unclear and treacherous territory on which he has embarked, the president would be wise to tread carefully.

The Conversation

Philip Hackney, James E. & Betty M. Phillips Associate Professor of Law, Louisiana State University and Brian Mittendorf, Fisher College of Business Distinguished Professor of Accounting, The Ohio State University

This article was originally published on The Conversation. Read the original article.

Trump loses appeal, but travel ban fight isn’t over yet

Outside the Ninth Circuit Court of Appeals in San Francisco. AP/Haven Daley
Outside the Ninth Circuit Court of Appeals in San Francisco. AP/Haven Daley

Steven Mulroy, University of Memphis

Thursday’s appellate court opinion, which denied President Donald Trump’s appeal concerning his immigrant ban executive order, was unsurprising. It cautiously declined to upset the status quo, temporarily continuing to prevent the executive order’s enforcement nationwide. But it also allowed for further briefing and argument.

As a constitutional law professor and former Justice Department litigator, I see the court’s reasoning as suggesting deep skepticism of Trump’s position and, at the same time, spotlighting the main issues for the further appeals that will inevitably follow.

The order, then the ban

Among other things, the executive order bans for 90 days the entry of any nationals from seven majority Muslim countries. It imposes a 120-day ban on admitting refugees, and an indefinite ban on Syrian refugees. Further, priority is to be given to members of minority religions in their home state once the ban on admitting refugees runs out. This would have the effect of favoring Christians.

After a Seattle federal judge ordered a nationwide halt to enforcing the executive order on Feb. 3, the Trump Justice Department petitioned the three-judge appeals court to lift the injunction. The case went up on appeal on an emergency, preliminary basis.

Violating due process

In its Feb. 9 opinion, the panel of the Ninth Circuit Court of Appeals found it likely that the states of Washington and Minnesota had legal standing to sue, and that the executive order violated the due process rights of at least some of those it affected. It reserved the question of whether the executive order violated the separation of church and state, but noted these are “serious allegations” that raise “significant constitutional questions.”

However, because it was an emergency appeal by the government to immediately undo a temporary lower court order, the government had a heavy legal burden. The court’s preliminary decision that the government failed to meet that heavy burden doesn’t necessarily mean the court couldn’t change its mind later. Nonetheless, the tenor of the opinion sounded skeptical of the Trump position.

Almost half the opinion dealt with the government’s procedural objections about whether the case even belongs in court.
Citing Supreme Court cases, the appeals court ruled that the state universities represented by the state government lawyers could indeed sue on behalf of foreign-born students, faculty and staff who could not study, teach or work because of the travel ban. And, while the appellate judges acknowledged that courts should show deference to the president on national security and immigration issues, they sharply rejected the Trump administration’s gutsy and novel argument that the courts had no power to review the executive order, citing several recent Supreme Court cases.

On the merits, the panel came down most strongly on due process issues. The Constitution’s due process clause says that before the government can restrict someone’s freedom of action, it must give affected persons advance notice and a hearing.

Even noncitizen aliens have due process rights, if they are in the U.S.. The appeals court stated that the executive order most clearly violates due process because it affects holders of lawful visas and “green cards” who are present in the U.S., or who have been in the U.S. and are only temporarily abroad.

Lawyers for the government attempted to argue that the executive order didn’t really apply to green card holders, or even, ultimately, visa holders. They argued there was no need for a court order against enforcement. But the judicial panel was having none of it. In a hint of skepticism toward the administration’s reliability, the court expressed doubt that anyone other than the president had the authority to change the effect of the executive order. It said it couldn’t be sure the government lawyers’ take on the executive order would “persist” for long, “in light of the government’s shifting interpretations of the Executive Order.”

More fundamentally, the appeals court ruled, even people who the government clearly views as falling under the executive order – like those present in the U.S. illegally – still have due process rights.

The panel was more cautious regarding the establishment clause claim, where the state governments argued the ban clearly targeted Muslims, thus violating separation of church and state. It did say it was proper to give weight to the “numerous statements by the president about his intent to implement a ‘Muslim ban,’” but it was not prepared to say much more at this early stage of the proceedings.

Crucially, the appeals court declined to narrow the nationwide scope of the Seattle judge’s injunction against enforcing the executive order.

In a “sauce for the goose is sauce for the gander” moment, the judges noted the recent case where a single federal judge had controversially blocked enforcement nationwide of an Obama executive order on immigration. The conservative appellate panel in that 2015 case had ruled that a court order covering only that court’s part of the country would lead to an unwise “fragmented” immigration scheme rather than a “uniform immigration law and policy.”

Left unsaid

The opinion is also notable for what it did not discuss.

At oral argument, the parties had raised the possibility of remanding the case back to the trial court for the taking of more evidence. There was no mention of this in the final opinion.

Oral argument also dealt with a federal statute barring discrimination based on national origin regarding visas. I recently argued this was the strongest argument against the executive order, but the opinion contains no discussion of it. This might be because that legal claim would not affect non-visa holders like refugees and persons with green cards.

Ultimately, this is a clear defeat for the Trump administration. But, given the necessarily preliminary nature of these emergency proceedings, it may not be a permanent one.

Trump can continue to argue before this three-judge panel, appeal their decision to the full 29-judge-strong Ninth Circuit Court of Appeals, and, ultimately and predictably, move on to the Supreme Court. Given its fast-track nature, the case will likely reach the Supreme Court before the current vacancy is filled.
The Conversation

Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of Memphis

This article was originally published on The Conversation. Read the original article.

How a travel ban could worsen doctor shortages in US hospitals and threaten primary care

Exam room in a rural Alabama hospital. Brynn Anderson/AP
Exam room in a rural Alabama hospital. Brynn Anderson/AP

John Burkhardt, University of Michigan and Mahshid Abir, University of Michigan

The Ninth Circuit Court of Appeals in San Francisco on Feb. 9 upheld the restraining order on President Trump’s immigration ban. A key argument used by the States of Washington and Minnesota was the negative impact of the ban on higher education, but an important corollary is the impact on medical care in the U.S. While the world waits for a final decision on the matter, potentially from the Supreme Court, it’s worth looking carefully at the potential ramifications of the ban.

Regardless of the ultimate ruling, the travel ban has already had significant consequences for people from the seven targeted majority Muslim countries and American citizens. Doctors are among those people directly affected – and that has big implications for health care delivery in U.S. hospitals, particularly those in rural America and inner-city safety net hospitals.

Physicians who are citizens of these nations who were traveling outside the country at the time of the ban have been detained or refused access to the U.S.

Larger-scale, lasting effects of a ban on the graduate medical education system are likely to be even more severe and may further strain an already overstretched health care system and affect the care of communities across the U.S. Indeed, the president of the American Medical Association already has written a letter to the Department of Homeland Security, explaining how the ban could affect those who are already underserved by limiting doctors from other countries.

As physicians involved with educating and training the next generation of doctors, we see dire consequences for health care delivery in our country if the travel ban is reinstated.

A looming deadline

Even though the ban has been temporarily lifted, the timing could not be worse for international applicants hoping to train in the U.S. While new resident physicians typically begin on July 1, the match process that allots positions occurs much sooner. On Feb. 22, residency program directors must submit their rank list of which applicants they would like to have in their program.

Dr. Shane Prejean examines a patient at a Baton Rouge, Louisiana hospital as medical students look on. The area has a dire physician shortage.
Gerald Herbert/AP

Therefore, without clear signs that travel for foreign applicants will be possible by July, program directors who want to protect their training program from staffing shortages may decide against ranking these applicants. The loss of a single incoming class of international medical graduates will significantly decrease the number of residents in training and physician capacity in hospitals and health care systems across the U.S.

Graduates from outside the United States constitute 26 percent of the U.S. graduate medical training. These foreign medical graduates usually fill resident training positions that are left vacant after medical schools match U.S.-based students to residency programs.

Therefore, foreign graduates typically do not take spots away from graduates of American medical schools, but instead provide medical care in hospitals that will otherwise be understaffed. These include rural hospitals around the country, where it is especially hard to recruit physicians, and safety net hospitals serving the poor.

Primary care could be threatened

Even if all current residency positions could be filled with U.S. medical school graduates and eliminate the need for any additional resident physicians from outside the U.S., the projected demand for physicians in the near future will still not be met.

Physicians in graduate medical education provide a significant proportion of all health care in the U.S., with teaching hospitals accounting for 40 percent of charity care (US$8.4 billion annually) and 28 percent of Medicaid hospitalizations. Without sufficient residents to care for patients, teaching hospitals are ill-equipped to maintain this role for the poorest patients and may not continue to meet this critical societal need.

Physicians who are both foreign-born and U.S.-born and trained outside the country constitute more than a quarter of all practicing physicians in the U.S.

Dr. Ammar Hashim, born in Iraq, is the chief operating officer for several clinics in Houston.
Pat Sullivan/AP

While the country of origin of these doctors is not often reported on a country-by-country basis, a recent interview with the Association of American Medical Colleges reported 260 physicians in training were from the seven targeted nations last year.

Expanded travel bans could dramatically increase that number as, between 2008 and 2010, 16 percent of these international medical graduates taking a required licensing exam were from Middle Eastern countries.

A drop in primary care providers

These international physicians also disproportionately work in primary care fields that are the hardest hit by the ongoing U.S. physician shortage crisis.

Currently, primary care programs have 50 percent of their residency slots filled by nonallopathic students and international medical graduates, whose absence could cripple primary care capacity.

Having a primary care doctor leads to increased access to care, reduced emergency department visits, decreased hospitalizations and improved management of chronic conditions, and decreased acute care utilization can lower overall health care spending. Similarly, general surgery has seen a 13 percent decrease in U.S. graduates in the specialty; however, this shortcoming has been buffered by influxes of international medical graduates. Delays in scheduling operative cases have also been associated with increased health care costs, making adequate numbers of surgeons another cost containment strategy.

Without international physicians entering the graduate medical education workforce, it would require substantial changes to maintain the current level of physician staffing in health care systems, such as replacing physicians with midlevel providers which may further inflate health care costs.

While physician shortage is a challenge for many communities across the U.S., the pain will not be distributed equally among all Americans.

Minority and low socioeconomic status patients are more likely to suffer from increased physician shortages, are most likely to be impacted by increased wait times to get care, and stand to lose the benefit of having a primary care doctor that has also shown to confer benefits to at-risk populations.

President Trump’s immigration ban has the potential for immediate ramifications for the hospital and health care system workforce in the U.S. Long term, decreases in the number of international medical graduates in training will result in fewer primary care physicians and general surgeons, just as the country is likely to need more.

This immigration policy can have significant adverse impacts on health care delivery and the health of Americans. These consequences should be critically considered in related immigration and travel ban policy decisions moving forward.

The Conversation

John Burkhardt, Lecturer, University of Michigan and Mahshid Abir, Assistant Professor, Department of Emergency Medicine, Director of the Acute Care Research Unit, University of Michigan

This article was originally published on The Conversation. Read the original article.