//  6/2/17  //  Commentary

Last week, the Trump administration released its budget (if you can call something with an (intentional?) two trillion dollar math error a budget).  Putting the economic hand-waving aside, the budget includes a bunch of significant cuts to programs that Trump promised he would not touch.

The cuts include: 

The part of the budget I'm focused on in this post is the proposal for the Department of Justice, and specifically the Civil Rights Division.  On this blog, Chiraag Bains has already identified seven significant ways the budget will transform the Civil Rights Division.  I wanted to draw some parallels between the budget for the Civil Rights Division and what we have already seen from this administration and its supporters. 

Joshua Matz and I have written some on this blog (and I’ve written some on my own) about what conservative activists wanted to do to DOJ’s Civil Rights Division.  A letter to Attorney General Jeff Sessions, as well as some of Sessions’ actions, revealed a desire to have DOJ stop enforcing many of the statutes that prohibit different kinds of discrimination on the basis of sex, or race.  The letter (and subsequent actions) also revealed a desire to have the Division stop using statutes and regulations to protect LGBTQ individuals from discrimination as well.

The budget for DOJ’s Civil Rights Division certainly does some of that.  For example, the budget indicates that among the Division’s priorities is that the Division will:

continue to work collaboratively with the Department of Education’s Office of Civil Rights to review regulatory materials.”

What that means is this:  The Civil Rights Division will make it its business to rescind guidance documents and regulations that expanded protections against discrimination, such as the Obama-era guidance letter that explained why schools are required to allow transgender students to use the bathroom that corresponds with the students’ gender identity.

The budget also indicates the Department will:

continue to prioritize the review of approximately 170 longstanding consent decrees.”

Another translation: The Civil Rights Division will undo consent decrees that required federal supervision of jurisdictions (including local police departments) that had a history of discrimination, or a pattern of civil rights violations.

Perhaps to help the Division in not enforcing various civil rights protections, the budget proposes a decrease of 121 positions from fiscal year 2017 (including 14 fewer attorneys).  The administration also appears to be scaling down civil rights efforts within other agencies.

The budget is also notable for what it omits. Among the priorities of the Division are combating human trafficking and protecting the rights of servicemembers and veterans.  Those are worthy endeavors.  Prosecuting hate crimes also gets a shout out.

But there is literally no other mention of DOJ doing anything about discrimination on the basis of race. The budget for DOJ’s Civil Rights Division and its priorities also omit any reference to discrimination on the basis of sex (which I guess is unsurprising given that Jeff Sessions doesn’t believe that discrimination on the basis of sex exists today, notwithstanding the administration’s limiting health care servicesfor women).  It makes no mention of discrimination against persons with disabilities.  And it says nothing about police violence, much less racialized police violence.

The budget also, in keeping with the conservative activists' letter to Sessions, attempts to all lives matter voting discrimination.  It notes that the Department will safeguard voting rights for “all Americans,” with no reference to the racialized effects of recent voting restrictions and voter suppression.

When Joshua and I wrote about the plans for DOJ’s Civil Rights Division, we also highlighted how the conservative activists’ letter seemed to want to use DOJ’s Civil Rights Division as a sword for discrimination—specifically, by using DOJ to disenfranchise individuals and suppress the vote.  The Trump budget reveals another way in which conservative activists plan to use DOJ’s Civil Rights Division—to fuel anti-immigrant sentiment.  The budget proposes to:

"Prioritize enforcement of the Immigration and Nationality Act to ensure that companies do not discriminate against U.S. workers in favor of foreign visa holders."

Somehow DOJ’s Civil Rights Division ended up getting roped into the Trump administration’s “America First!” agenda. This particular priority suggests that DOJ’s Civil Rights Division will now be charged with sounding the alarm bell over American citizens losing their jobs to persons with foreign visas.  So while DOJ’s Civil Rights Division used to be charged with protecting minorities and historically disadvantaged groups from discrimination, it will now foment anti-foreign and anti-immigrant sentiment.

In that respect, the priorities for the Civil Rights Division are of a piece with the administration’s creation of the Victims of Immigrant Crime Engagement (VOICE) Office.  As Helen Klein Murillo and I wrote, VOICE is an office within DHS that was created to publicize crime by immigrants.  Whereas VOICE is designed to stoke fears that unauthorized immigrants are dangerous and bad, DOJ’s Civil Rights Division is now structured to stoke fears that authorized immigrants are taking your jobs.    

In some respects, this use of DOJ’s Civil Rights Division is unsurprising.  During the campaign (and afterwards), some commentary has explained Trump voters’ motivations in terms of “economic anxiety”—a concern for job prospects, economic security, and economic mobility.  Those are very real concerns, and economic inequality poses a serious challenge to American democracy.  (Read Ganesh Sitaraman’s book, The Crisis of the Middle-Class Constitution, if you’re interested in that part of the issue.)

But Trump’s rhetoric about making America great again was never just limited to bringing back jobs or making America as a whole prosper.  (Compare Trump's rhetoric to Paul Wellstone's frequent rallying cry that "We all do better when we all do better.")  Trump's rhetoric was fused with a claim (sometimes explicit, other times implicit) about who is to blame for that economic anxiety.  The budget for the Trump DOJ’s Civil Rights Division makes that perfectly clear.

Versus Trump: Trump vs. The Equal Rights Amendment

1/16/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason, Easha, and Charlie discuss the Trump Administration's new legal opinion regarding the legal status of the Equal Rights Amendment, also known as the ERA. They consider what will happen now that Virginia has become the 38th state to ratify the ERA since 1972. Is it too late, or can Congress do anything to add this amendment to the Constitution? Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

On Clerkships & Wasted Opportunities

12/23/19  //  Commentary

An HLS Clerkship Blog encapsulates some of the challenges to the profession in light of Trump’s reshaping of the federal judiciary.

Leah Litman

Michigan Law School

Impeachment Trials and the Senator’s Oath of Impartial Justice

12/19/19  //  Commentary

Senators who vote on removal following impeachment trials must take an oath akin to that of a juror. The oath requires them to be impartial and vote regardless of the president's party affiliation. Will Senators do that here?

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School