Who's running the country? (Parts 1 and 2)

Meet your president's Cabinet! Who was appointed, by what margin, and a look at the backgrounds of the people filling these critical roles.

In other words, who is running our country? Let's find out. 

This is a two-part episode. You can hear both parts - and read both transcripts - below.

Part 1:

Part 2:


Transcript (Part 1)

Note: This trancript is AI-generated and may contain errors.

Who's running the country? (Part 1)

Hannah McCarthy: Nick, when this show was started way back in 2017, it was because people were writing emails to our radio station and asking a lot of questions about the government, and a lot of those questions were to the tune of, now wait a minute, what are we even talking about here?

Nick Capodice: Right. Stuff like I'm reading and hearing a lot about X, Y, or Z person and government and what they're up to. And there's a ton of headlines telling me this is a big deal, but why is this a big deal? Is this really a big deal?

Hannah McCarthy: And it's hard to know if it's a big deal, if you don't know who that person is that you're asking about or what they're supposed to be doing. And over the past couple of months, I have been reading a lot of stuff about the people who President Donald Trump picked to run the government.

Nick Capodice: Ah, yes, the cabinet.

Hannah McCarthy: The cabinet which you recently made a lovely episode about.

Nick Capodice: I did. Hannah. So what are we doing here, then.

Hannah McCarthy: All right. Relax. We're here to talk about who these people actually are and what they're actually supposed to be doing.

Nick Capodice: I'll allow it.

Hannah McCarthy: This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And today, who's running the place? And what are they supposed to do?

Nick Capodice: All right, Hannah, let's just get something out of the way real quick.

Hannah McCarthy: Your opinions about the Lord of the rings film franchise, which, uh, Nick and I have been discussing civily lately.

Nick Capodice: Really civilly. Let's leave that for the other podcast. We're going to start where you expose my niche opinions for a niche audience.

Hannah McCarthy: All right, fair enough. Oh, by the way, everyone. Fun little challenge. See if you can spot a young Nick Capodice in Peter Jackson's 1992 movie braindead, aka Dead Alive. And please send us an email when you do. I will send a Civics 101 mug to the first listener who can tell us the time stamp. Bonus points for a screenshot, But I digress. Nick, what did you want to get out of the way?

Nick Capodice: You digress. Indeed. Hannah I look pretty much the same now as I did in that bathrobe in 1992. But anyways, here's my question. You're going to talk about who's running the government. You're not talking about the president. You are talking about the heads of the executive branch departments. Right?

Hannah McCarthy: Right. Plus a few others. But yeah, and.

Nick Capodice: These are the people who the president nominates. He wants to appoint them the heads of various super important, super powerful departments. And in order for them to actually get the job, they've got to be confirmed by the Senate.

Hannah McCarthy: That they do.

Nick Capodice: And it seems to be like I am seeing the word controversy a lot this year when it comes to this process. I mean, the.

Archive: Department of Defense is one of the most complex bureaucracies in human history, and the president is choosing its leader the same way I chose breakfast cereals as a kid.

Nick Capodice: Hey, there are a lot of articles and a and a lot of pundits and a lot of politicians questioning Trump's nominees on various counts. So I want to begin by asking, is this unusual? Or is that the sort of thing that happens every time?

Hannah McCarthy: That is a good place to start. My answer is yes and no. This year, you may have heard a lot about Trump's quote unquote controversial appointment nominees. Is that a new thing? No. Taking issue with an incoming administration's potential executive leaders is par for the course. I looked back as far as Jimmy Carter, and I could not find a single president whose nominees did not get pushback in one way or another. Also, plenty of nominees in the past have actually withdrawn before they ever get to the Senate confirmation part because often of controversy.

Nick Capodice: All right, so that's the no, this is not unusual. What about the yes.

Hannah McCarthy: The yes, this is unusual has to do with a few factors, one being the current political climate and how politicians are operating within it, or maybe manipulating it. Amping it up. Division, pushback and disagreement are the name of the game right now, and a friendly reminder. And I do mean friendly that you, dear listener, have the power to play a healthier and happier game. We are also talking about a president who promised a major shakeup in Washington, and has nominated people who appear to be in service of that promise.

Nick Capodice: So controversy was pretty likely from the get go.

Hannah McCarthy: Yeah. You know, like Ronald Reagan also came into office promising to cut the fat in Washington, and his appointees were also in service of that. The difference here, Nick, between that situation and this one is in the vote.

Nick Capodice: What do you mean, the vote?

Hannah McCarthy: The final hurdle in becoming an executive branch leader. The Senate takes a vote. Generally speaking, Nick, the Senate is pretty deferential to the president when it comes to nominees. Some people may have a harder time than others, but most of the time a nominee will get a significant majority of yes votes, of yes votes. And a lot of the time the Senate will just take a voice vote.

Nick Capodice: All right. That's when the presiding officer is like, here's the question to vote on. Who's in favor.

Archive: All in favor, say aye.

Nick Capodice: Aye. And then the officers, like all.

Archive: Opposed, say nay. The ayes have it.

Hannah McCarthy: That's about how it works. In other words, you know, it's already pretty clear how this vote is going to go. So we don't need everyone to vote individually. And there have only been three rejected nominations in the 20th century. So what does that tell you?

Nick Capodice: Uh, that generally the Senate just goes with it. When the president nominates someone.

Hannah McCarthy: This year looks a little different. In the past, nominees were generally not always less controversial. This year, the vote majorities are slimmer, the pushback and the resistance is pretty significant.

Nick Capodice: But so far as of this recording, February 25th, The Senate has not rejected any of Donald Trump's 2025 nominees so far.

Hannah McCarthy: So far, and this whole thing has happened pretty quickly, too. Also, nominees used to need a 3/5 supermajority 60% of the vote. But as of 2013, they only need a simple majority of senators to vote in favor of their appointment.

Nick Capodice: So they got to have at least half. And since over half of the current Senate is the same party as the current president, right.

Hannah McCarthy: Pretty good chances of getting those appointees into the job. But since we are talking about votes here, Nick, that is how I'm going to go about this from most yeas to least.

Nick Capodice: Hannah, the ghost of my father is forcing me to say fewest yeas.

Hannah McCarthy: All right, Nick, I have been editing your grammar on the fly for seven years, so I'm going to give myself some grace here. I'm trying to get through a lot. Anyway, who are our new government leaders? 22 of them have been nominated. 18 have been confirmed as of the writing of this episode. 15 of the 22 are department heads, six are not, but still have super important jobs. A lot of numbers there. Who are they? What are they supposed to do? Did they squeak by or breeze right in? This is part one because ears and eyes and time are precious human resources. So in this episode you're going to hear about nine. So let's start with the only unanimous confirmation so far. The one who got in with nary a nay nick.

Nick Capodice: Nary a neigh. Wait, can I guess first before you tell me? Secretary of the interior.

Hannah McCarthy: So close.

Nick Capodice: Ah, I just feel like people don't talk much about the Department of the interior. Like they're not worried about it.

Hannah McCarthy: Yeah, I mean, maybe they should think a little bit more about it, but the Secretary of the interior did get the second most votes. All right.

Nick Capodice: See, I knew it.

Hannah McCarthy: But we're going to start with the guy who got 99 votes. 99, by the way, because JD Vance was a senator before he hopped over to the white House. So his seat was vacant for a portion of these committee hearings and confirmations to promote.

Archive: Peace abroad and security and prosperity here at home. That is the promise that President Trump was elected to keep. And if I am confirmed, keeping that promise will be the core mission of the United States Department of State.

Hannah McCarthy: Our new secretary of State, Marco Rubio. The way this whole thing works is before the vote, the nominee has a hearing. They talk to whatever Senate committee pertains to the job they're applying for. So Rubio chatted with the Senate Committee on Foreign Relations. They talked for five hours, which might sound like a long time, but in this whole process is not necessarily that long. And it was a pretty friendly chat. And then the vote happened and Rubio was unanimously in.

Nick Capodice: Wait wait, wait. Marco Rubio is a senator.

Hannah McCarthy: Not anymore. Okay.

Nick Capodice: But I mean, did he get to vote for himself.

Hannah McCarthy: He did. And now he's in charge of foreign policy. Sounds easy. Marco Rubio will now be in charge of an absolute mountain of responsibility. He's in charge of negotiating our foreign affairs. We're talking treaties, agreements, protecting U.S. interests and people abroad, understanding and communicating the politics, economy, humanitarianism and culture of other countries, administering U.S. immigration law abroad, repping the US at international gatherings, and a lot more. It's a huge job. Marco Rubio himself once called it, quote, the second most important position in the US government, with all due respect to the vice president, unquote.

Nick Capodice: When did he say that?

Hannah McCarthy: During Rex Tillerson's confirmation hearing for the gig back in 2017, Rubio asked Tillerson if Vladimir Putin was a war criminal. Tillerson deflected. Rubio did not like that.

Archive: You are still not prepared to say that Vladimir Putin and his military have violated the rules of war and have conducted war crimes in Aleppo.

Hannah McCarthy: And now Rubio has been tasked with figuring out an end to Russia's war in Ukraine. Though President Trump has called Ukraine President Volodymyr Zelensky a dictator and suggested that Ukraine started the war, they did not. And Rubio is also charged with maybe negotiating an alliance with Russia that.

Nick Capodice: Feels like it's going to require a little bit of pivoting. Yeah.

Hannah McCarthy: Rubio also ran against Trump in the 2016 presidential election, and has generally been in favor of U.S. aid abroad and soft power, though Donald Trump has almost entirely dismantled USAID, which does exactly that. So, yeah, Rubio is one of the more interesting appointees when you look at his politics versus serving at the pleasure of the president. All right, Nick, we got 17 others. Let's go.

Nick Capodice: Shall we go to the interior.

Hannah McCarthy: Secretary of the interior, Doug Burgum.

Archive: It's certainly an honor to have been nominated by President Trump to serve as the 55th Secretary of the interior.

Hannah McCarthy: Former governor of North Dakota. He got 80 yeas in 17 nays.

Nick Capodice: All right. That sounds like the Senate generally agreed on that one.

Hannah McCarthy: Burgum will now be in charge of the Department of the interior. Which is what? Nick?

Nick Capodice: Yeah. What is that thing? Hannah? I'm joking, everyone. I'm joking. The Department of the interior manages the stuff on the interior. You know, inside of the US public lands and waters.

Hannah McCarthy: Yes. Inside the Department of the interior is the Bureau of Land Management, the National Park Service and Fish and Wildlife Service and a bunch of other bureaus, including Indian Affairs and Ocean Energy Management. It is the Secretary's job to protect and manage natural resources and cultural heritage, and to honor treaties and agreements with tribal nations in the US.

Nick Capodice: And as far as this particular Secretary of the interior?

Hannah McCarthy: So he ran for president in 2023, dropped out of the race, became an energy policy adviser for Trump's campaign. He's a major promoter of gas and oil. Burgum says we are in an energy crisis. He also says that he supports conservation and will be a driving force in Trump's plans to ramp up gas, oil and mineral extraction. All right.

Nick Capodice: So Burgum is the drill baby drill arm of the executive branch.

Hannah McCarthy: In short, coming in at 77 years and 22 nays. Again, senators are sort of fluctuating right now. Is Sean Duffy, our new secretary of Transportation.

Archive: I'm honored to have the trust of President Trump and hopefully this body to lead such an important segment of our economy.

Hannah McCarthy: Duffy was a Wisconsin district attorney, then a US House rep for Wisconsin from 2011 to 2019. He then became a lobbyist on behalf of domestic airlines and then a Fox News co-host. And before that, Nick. He was on Real World Boston and a couple of other reality shows.

Archive: What? Here we go, Shawn. Rock n roll, baby.

Archive: Pack up all our gear. We're on our way now. Hahaha.

Nick Capodice: You, Hannah, are from Boston.

Hannah McCarthy: That I kind of am. If you want to know what Duffy is tasked with as Secretary of Transportation, I recommend listening to our recent episode with former Secretary of Transportation Pete Buttigieg. Basically, the Secretary of Transportation is in charge of transportation policies. Duffy has gotten some bipartisan praise. He said he'd focus on roadway safety and aviation. The big news item about him so far is that he is, as the secretary of transportation, investigating California's high speed rail project. All right, Nick, coming in next. We got Veterans Affairs Secretary Doug Collins. That's at 77 yeas and 23 nays.

Archive: You know, America is the greatest nation on earth, and it's the greatest nation on earth. I believe because the men and women who serve.

Hannah McCarthy: It'll be his job to oversee the health, education, disability, funeral and financial benefits earned by veterans of the United States Armed Forces. Collins is a Baptist minister. He was a church pastor for 11 years, served as a chaplain for the US Navy and US Air Force Reserve. He's a colonel in the Air Force Reserve, and he was a Georgia state rep from oh 7 to 2013 and a United States rep from 2013 to 2021, also representing Georgia. He was also a major Trump defender, especially during Trump's first impeachment.

Nick Capodice: All right, what's his plan, man?

Hannah McCarthy: He plans to streamline the VA and cut regulations while making it easier for veterans to access medical care. He also wants to root out what he calls corruption. The VA fired 1000 employees shortly after Collins joined. He said that there could be more layoffs, and Collins said the money that they're saving will go to health care and benefits for vets. All right, next up, Nick, we have someone who is not a department head, but is someone who served in the previous Trump administration.

Nick Capodice: Oh, okay. I think I know this one. Is it Ratcliffe?

Hannah McCarthy: Right on the money. John Ratcliffe he was confirmed with a 7425 split.

Archive: Today we face what may be the most challenging national security environment in our nation's history.

Hannah McCarthy: Nick, can you tell the people who Ratcliffe is?

Nick Capodice: Uh, certainly. So he is now the director of the CIA, but he was the director of national intelligence in the last year of Trump's first presidency, which I believe is also a confirmation position.

Hannah McCarthy: It is indeed. And now back to the CIA. It is an independent government agency as opposed to an executive department. Now, the first time Ratcliffe was confirmed, he got zero votes from Democrats, and that was the first time a national intelligence director got confirmed without opposition party votes. Right. So, like they're of the party of the president, the opposition party is not the party of the president, but this is the first time that nobody in that opposition party made that confirmation in that role.

Nick Capodice: But this time around, it sounds like he's a little more popular, so to speak.

Hannah McCarthy: He is. He's actually now considered by people on both sides of the aisle, one of the more qualified appointees in this batch.

Nick Capodice: All right. And I know he was a US House representative from Texas. Yes.

Hannah McCarthy: And before that, he was mayor of Heath, Texas. Now, as far as his job goes today, Nick, the CIA, what do we know?

Nick Capodice: Can I quote the fog song? Hannah?

Hannah McCarthy: You can if you cut out the swears.

Nick Capodice: Who can kill a general in his bed? Overthrow dictators if they're red CIA man. But really sorry, everyone. When it comes to the CIA, we know as much as they want us to know. And maybe just a smidgen more than that. They are the spies.

Hannah McCarthy: They would probably say, you know, covert agents, covert Operations. But yeah, intelligence gathering and that takes many forms. And there are a lot of people who do a lot of things. It's now Ratcliffe's job to oversee intelligence collection analysis, covert action counterintelligence and liaison relationships with foreign services. Now that's from the CIA website, which I'm just going to admit here. Nick, I think of all of the government websites. It is the coolest looking one.

Nick Capodice: Yeah, like it looks like a spy website.

Hannah McCarthy: It kind of does. I don't think that's an accident, by the way, but that's just me. Anyway, the interesting thing about this confirmation hearing and what we know about this job to come, is that we don't know much because Ratcliffe won't or can't say spies. But what we do know is that Ratcliffe promises to make the CIA more aggressive. He says that it will be less risk averse and take more covert action when the president wants it to. On that note, Nick, we're gonna disappear into the night like a couple of covert agents ourselves. And when we get back, the new government gets just a little less popular.

Nick Capodice: But before that assignment, just a quick reminder that you can find deeper dives into many, many departments of our executive branch at our website, civics101podcast.org. Among every other thing we've ever made for years and years. All right, come on, Hannah, let's go pick some code names.

Hannah McCarthy: We're back. We're giving you an introduction to your new government and ours via the appointees to the executive branch. And we're going down the list from most yeas to fewest yeas. Up next, we have Agriculture Secretary Brooke Rollins.

Archive: I want to thank and so overwhelmed at the honor to potentially serve the men and women who daily, without pause or complaint, provide our great nation and the world with the best food, fiber and fuel.

Hannah McCarthy: She got the gig with 72 yeas, 28 nays. She is the second female ag secretary ever, and her new job is a lot. Yeah.

Nick Capodice: Because the USDA is a lot. Listen to our episode on it if you want to know. Because first and foremost, the USDA is about food, which might sound simple, but it is also the stuff we use to stay alive at a basic level. So I know the secretary oversees food safety and inspection, but then they are also overseeing the Supplemental Nutrition Assistance program Snap, which used to be called food stamps. Oh, and school lunch as well. And there's trade, right, Hannah? Like, the USDA monitors a ton of stuff that we export and import.

Hannah McCarthy: Yeah. The secretary is also overseeing and supporting farmers forestry grasslands conservation efforts. Basically, yeah. I mean think food supply. So Rollins did get unanimous support from the Senate committee. So not the whole Senate, but the committee who held her hearing. But others are concerned about her lack of experience. She ran two conservative think tanks and served in the last Trump administration in two roles. One, she was the director of the Office of American Innovation.

Nick Capodice: The what now?

Hannah McCarthy: Yeah, this was the white House office that was basically the liaison between the white House and the tech industry. It existed really only during Trump's first administration. Then Rollins was the acting director of the US Domestic Policy Council. But now she's got to tackle the impact of potential tariffs on our food producers and the loss of farmhands from new immigration policies and the bird flu.

Nick Capodice: Oh, the eggs.

Hannah McCarthy: Yeah, the eggs. Trump has said that Rollins will, quote, do something about egg prices. Next on the list coming in at a 6829 confirmation is Scott Bessent, our new Treasury Secretary.

Archive: Most Americans watching at home will be unfamiliar with my background.

Nick Capodice: That is our chief financial officer, right? Yeah.

Hannah McCarthy: Right. So the Treasury secretary is in charge of making sure our economy doesn't tank and doing something about it. If it does. Peek inside this department and you will find the mint. The Bureau of Engraving and Printing. The mint makes coins. Bureau of Engraving and Printing makes dollars. The IRS also the Alcohol and Tobacco Tax and Trade Bureau, among lots of other things. This department investigates financial crimes. It's in charge of borrowing money for the US. And the secretary also sits on the National Security Council. Because guess what? Money and security are pretty closely linked.

Nick Capodice: All right, so I do know one thing about Bessant.

Hannah McCarthy: What's that?

Nick Capodice: Well, he's not just a guy who knows money. He's a guy who has money. Lots of it. Billions of bits of it. Yeah.

Hannah McCarthy: So Bessant is a hedge fund manager. For a while, he worked for George Soros, George Soros.

Nick Capodice: George Soros is famously a liberal philanthropist.

Hannah McCarthy: And billionaire.

Nick Capodice: And billionaire.

Hannah McCarthy: So Bessant was a major Democrat donor, and he is now a major Republican donor. He was an adviser to Trump, and he is still an adviser to Trump, though now is a secretary. And it will be on him to help figure out tax cuts, tariffs and regulation rollbacks. Some things that Donald Trump has promised. All right. Up next, 59 Yays, 34 nays for Kristi Noem.

Nick Capodice: Okay, I know this one. That is the new Homeland Security secretary.

Archive: We will undertake a large job and a large duty that that we have to fulfill that the American people expect us to do by securing our border.

Nick Capodice: Also, she was South Dakota's only Rep in Congress because South Dakota is only one district.

Hannah McCarthy: I forget that all the time. The whole state is just one district. It's very interesting. And yes, you are correct. She served four terms and was then elected the first ever female governor of South Dakota in 2018. And now as the head of DHS, she is in charge of our immigration system.

Nick Capodice: Which, as we know, is a major element of Donald Trump's presidential plans.

Hannah McCarthy: As we know. So Noem has already deputized 600 State Department officials to help with arrests and deportations. She will also be overseeing Customs and Border Protection, the US Coast Guard and the Federal Emergency Management Agency, aka FEMA, though Trump has suggested getting rid of FEMA, so that part remains to be seen. Also, Noem oversees the Secret Service, which she has promised to overhaul. All right. Chris. Right. The new energy secretary. He got 59, 38 nays.

Archive: Energy has been a lifelong passion of mine, and I have never been shy about that fact. Then again, I've never been shy about much.

Nick Capodice: Oh, yeah.

Nick Capodice: Chris Wright is an oil man.

Hannah McCarthy: He is indeed. He was the head of a fracking firm. He is now overseeing the science, technology and security of energy in the US. So this includes energy production. Think oil and gas and wind and solar. Though the oil and gas part is the major priority for Donald Trump, as well as overseeing our nuclear weapons program and the Office of Energy Efficiency and Renewable Energy, which is supposed to address climate change.

Nick Capodice: All right. So this administration is really focused on oil and gas and focused hard. So what does that mean for the rest of it. All right.

Hannah McCarthy: So in the past, Wright has said that there is no climate crisis in this hearing. He was like, actually, it's real, it's global, and we have to develop new energy technologies.

Nick Capodice: Even though the president has suggested it's a hoax. Yes.

Hannah McCarthy: But let's say that he does disagree with the president on that point. He's very much on board with the quote unquote, unleashing of American energy. That is something that Trump has ordered, which in terms of the numbers, I mean, like in terms of the numbers of American energy, it's not leashed. We are the leading producer of oil and gas, but the idea is to ramp up extraction, ramp up production anyway. So right is in line with the president's agenda, but suggests that there is a multi-pronged approach here. Okay, Nick, those are nine of the 18 new appointees so far set to run our federal government.

Nick Capodice: Oh, that's it. We did.

Hannah McCarthy: It. Well, I mean, that's not it, but we are leaving it at that for now. And in the next episode, we're going to see some slimmer vote margins. Contention peppers the confirmation hearings. The appointees make it to the big Show, but not without fielding some serious Senate reservations. And you can learn about all of that in part two of who is running the government, which, if you want, you can go listen to right now. All right, Nick, let's jam. Let's do it. This episode of Civics 101 was produced by me, Hannah McCarthy, with Nick Capodice and Rebecca Lavoie, who also happens to be our executive producer. Thank you. Rebecca. Christina Phillips is our senior producer. Music in this episode comes from Epidemic Sound. You can learn a lot more about a lot of these departments and agencies at our website, civics101podcast.org. And while you're there, give Nick's episode on the cabinet a listen. It is a really good one. Civics One on One is a production of NHPR, New Hampshire Public Radio.

Transcript (Part 2)

Hannah McCarthy: So. You're listening to Civics 101. I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And this listener is part two of Who's Running the Government. I'm going to be talking about nine of the so-far 18 confirmed presidential appointee leaders in our nation's executive branch. But if you want to know who the other nine are and a little bit more about what this process is all about, I recommend you go back and listen to part one, because we're just gonna hit the ground running on this one.

Nick Capodice: If nothing else, listen to part one to hear Hannah reveal not one, but two significant pieces of personal history trivia about me to which I did not give my approval vote. Hannah.

Hannah McCarthy: It was worth it, though. The people need to know Nick.

Nick Capodice: And now they do. All right, so in addition to those little gems, Hannah, in part number one, you told me that the vote margins, as in the number of yeas and nays and nominee, got when the Senate confirmed them. Those margins were going to get a little slimmer.

Hannah McCarthy: That's right. We are going through the list from the most yeas to the fewest. The second batch of President Donald Trump's appointees got more pushback, more questions about their experience, their politics, their personal conduct. And we are kicking it off with our new Environmental Protection Agency administrator, the head of that independent executive agency, not Department, Lee Zeldin. He got 56 yeas and 42 nays.

Archive: Our mission is simple but essential to protect human health and the environment. We must do everything in our power to harness the greatness of American innovation with the greatness of American conservation and environmental stewardship. We must ensure we are protecting the environment while also protecting our economy.

Nick Capodice: Lee Zeldin Hannah. I do not know that name at all.

Hannah McCarthy: All right, so Zelda was in the New York State Senate and then in the US House of reps. And he served there until 2023. He was also a major Trump defender when it came to the impeachments. Zeldin is also an officer of the US Army Reserve. And one big thing with Zeldin when it came to his confirmation hearing was experience, or lack thereof. So the EPA, the Environmental Protection Agency, it is supposed to make sure that we have clean air and water, that we protect the environment, protect human health re environmental concerns, and clean up toxic sites. Zeldin doesn't have much experience in environmental regulation.

Nick Capodice: But given what I know about Trump's environmental policy plans. Zeldin is going to be in charge of rolling a lot of regulation back. Am I right? Yeah.

Hannah McCarthy: The biggest of those is a very new rule that limits greenhouse gas emissions from tailpipes. Trump wants that one gone. Now that one is tricky because auto manufacturers have already invested tons of money in things like electric vehicle development, so we're going to see how that goes. Zeldin is also apparently consulting with Trump about a really major principle that kind of underlies a lot of our climate policy here in the United States. We don't know a lot about that yet, but we probably will soon. All right. Scott Turner, 55 yeas, 44 nays. Turner is our new Housing and urban Development secretary.

Archive: Hud's mission is to create strong and sustainable communities and support quality, affordable housing, serving the most vulnerable of our nation. Yet as we sit here, we have a housing crisis in our country. We have the American people and families that are struggling every day. We have a homelessness crisis in our country.

Nick Capodice: Also, Hannah, I am ashamed to say here I was unaware of Scott Turner until very recently.

Hannah McCarthy: Well, he's not super well known in the world of federal politics, or he wasn't until now. Turner is a former pro football player. He was a Texas state rep. He was a motivational speaker as well, and he spent two years as the executive director of the white House Opportunity and Revitalization Council under Trump during his first term.

Nick Capodice: Well, that sounds like it could be adjacent to his new job.

Hannah McCarthy: Yeah. At the time, Turner was overseeing a program that found ways to build affordable housing and improve economic development in impoverished areas in the US. And his new job is very broadly to make housing affordable in America. Hud does this through programs, rules and policies.

Nick Capodice: So we're talking stuff like housing assistance, public housing, mortgage relief, that sort of stuff.

Hannah McCarthy: That sort of stuff. Yep. Shelters, transitional housing, all of the things that people live in but often find a hard time finding, securing and affording. I read through some statements from various housing assistance organizations. You know what their opinion of Turner is right now? It looks like their plan is to be vigilant and see how this works out, because they don't have a lot of information yet about how it will work out. Um, let's move on to Small Business Administration Administrator Kelly Loeffler, who got the job with 52 yeas and 46 nays.

Archive: From managing inflation and capital to hiring a skilled workforce and weathering uncertainty, job creators in the last four years have faced rising demands to comply with new rules, often drafted with unknown cost and consequence. This regulatory complexity crushes growth, picks winners and losers and denies opportunity to those who dare to dream of a better future.

Nick Capodice: I feel like I'm batting a thousand in this episode, Hanna, but I honestly don't know what that administration does.

Hannah McCarthy: The SBA is not a department, it's an agency. Its whole thing is, as the name suggests, small business. The administrator oversees Administering loans to people, starting and growing small businesses, advising and supporting entrepreneurs, and protecting their interests. Loeffler is a former co-owner of the WNBA team Atlanta Dream. She has worked for a few financial services companies and served a brief period, just two years as a senator representing Georgia. She promises that she will help, quote, restore the small business economy. All right. Up next, we got former Wall Street executive Howard Lutnick with just 51 yeas and 45 nays. He is the new Commerce secretary.

Archive: I saw the strength of the American spirit during President Trump's campaign, and it fueled my desire to serve our nation. We need healthy businesses, small, medium and large, to hire our great American workers to drive our economy. I will dedicate myself to making our government more responsive, working to ensure Americans have the greatest opportunity for success.

Nick Capodice: All right. Now, Lutnick I have heard of. He has been a financial advisor to Donald Trump for a little bit. Right?

Hannah McCarthy: Yeah, for the last year. He also led Trump's transition team. So the Department of Commerce is an interesting one because it's not the Treasury, right? It's about money, but not in the same way it analyzes the economy, tries to make sure the US is competitive. It promotes trade. The department also oversees the census and the National Oceanic and Atmospheric Administration.

Nick Capodice: Wait, Noah, like the weather people?

Hannah McCarthy: Yeah, yeah, they monitor weather. They monitor storms, which might not seem relevant. But what they also do is support fisheries and marine commerce. So you got to know what the weather is if you're going to do that.

Nick Capodice: And I guess with the census, you got to know how many people there are to really understand how the economy is going.

Hannah McCarthy: I would imagine it certainly helps. I don't know a lot about these things.

Nick Capodice: All right. I know we already talked about the Treasury and tariffs when it comes to the Treasury Secretary. But I have to assume that the Commerce Secretary. They have something to do with that as well.

Hannah McCarthy: You assume correctly, my friend. Lutnick will be overseeing tariffs, determining tariff rates, and working to control certain exports, like there's a plan to restrict tech exports to China. Now, Lutnick is a very wealthy investor with a huge portfolio. So there is some concern that he's going to run into some conflicts of interest. As someone who oversees American economic interests.

Nick Capodice: As in, will his interests affect how he conducts America's business?

Hannah McCarthy: That's the question. And frankly, it is a question that would be hard to answer definitively, even if the answer is yes. Next up, Nick, we have Pam Bondi, 54 yeas, 46 nays.

Archive: My overriding objective will be to return the Department of Justice to its core mission of keeping Americans safe and vigorously prosecuting criminals. And that includes getting back to basics gangs, drugs, terrorists, cartels, our border and our foreign adversaries.

Hannah McCarthy: And I think, you know, Pam Bondi's marching orders.

Nick Capodice: I certainly do. Hannah. Attorney general, we're talking about the law.

Hannah McCarthy: We are talking law. So, first and foremost, if you have not yet listened to our producer Christina Phillips episode on All the president's lawyers, I implore you do so now. She covers the twists and turns of legal representation and the executive branch and says everything that I don't have time to say here and says it better than I could. And Nick Watt is the attorney general.

Nick Capodice: The attorney general or the AG is the head of the Justice Department. They are the chief law enforcement officer of the US. They give advice to the president and the other executive department heads. But they represent the United States, ostensibly and on the rarest of occasions, they might appear before the Supreme Court.

Hannah McCarthy: That about covers it. So Bondi was Florida's first ever woman attorney general and was planning to run again, actually, until Trump picked her for his second choice nominee for us AG.

Nick Capodice: Yeah, this is after his first choice, Matt Gaetz, withdrew amidst a major scandal.

Hannah McCarthy: That is correct. So Bondi has told the Justice Department that they're, quote, shameful era unquote is going to come to an end. She has condemned what she calls insubordination in the Justice Department and calls for, quote, zealous advocacy of the Trump administration's policies. A lot of people have expressed concerns that her loyalties are more to Trump than they are to the US. All right. Moving on, Russell T Vogt, new director of the Office of Management and Budget. He got the job with 53 yeas, 47 nays.

Nick Capodice: We have to use taxpayer dollars.

Archive: Wisely because inflation driven by irresponsible federal spending taxes. Americans twice.

Nick Capodice: All right, the OMB. Hannah. Hannah, this is the one I was waiting for. Because it seems like all of a sudden, everybody cares about the OMB.

Hannah McCarthy: It sure does, doesn't it? Nick, what is the OMB?

Nick Capodice: The OMB is within the white House itself. So we've been talking about some departments and some independent agencies, and this is its own thing. So basically, this office helps the president do what the president wants to do. It develops the budget for doing what the president wants to do. It figures out what happens when the money runs out. It handles contracting. And it for the federal government It sends around drafts of executive orders to figure out what the other agencies think about them. The OMB is the thing that makes it all happen, and Russell.

Hannah McCarthy: T Vogt has been there before. Vogt ran it during Trump's first administration. Before that, he worked as a lobbyist for the Heritage Foundation, a conservative think tank, and for a couple of Republican caucuses. And then after Trump's first term, Vogt founded the center for Renewing America. And he was an important architect of project 2025.

Nick Capodice: Project 2025, by the way, being shorthand for a bunch of policy recommendations for dismantling what they call the, quote unquote, deep state, making the executive more powerful and slashing government spending, among other things.

Hannah McCarthy: Yeah, the quote from Vogt's proposed budget in this whole project is dismantling the woke and weaponized bureaucracy. Vogt has expressed that he does not believe the congressional power of the purse is constitutional. He has a strong vision of dismantling the government. You know the government as it is right now. Senate Democrats did just about everything they could think of to delay his confirmation, but he did get through. All right. Nick, three more for you. And these last three appointees share something in common. They are the only three who did not score unanimous Republican consent. Wow.

Nick Capodice: All right, let's hear it.

Hannah McCarthy: Oh, you'll hear it. But we got to take a quick break.

Nick Capodice: Okay, fine. But before that break, listeners, Hannah and I have a whole comprehensive breakdown of the executive branch departments and what they do in our book, A User's Guide to Democracy How America Works.

Hannah McCarthy: I, in fact, reread parts of our book to remind myself of what these departments do while I was writing this, which felt like past Hannah giving present Hannah a little lesson. You know, it was nice.

Nick Capodice: You can find that book wherever books are sold.

Hannah McCarthy: We're back. This is part two of who is running the government. We're looking at all of President Donald Trump's confirmed executive branch leader appointees. Now, I have three more appointees to cover, all of whom failed to get unanimous Republican senator approval. The first two are tied. Each got 52 yeas, 48 nays. First, Tulsi Gabbard, director of national security.

Archive: And my day one priorities will be to assess the global threat environment, identify where gaps in our intelligence exist, integrate intelligence elements, increase information sharing, and ensure that unbiased, apolitical, objective collection and analysis to support the president and policymakers decision making occur.

Nick Capodice: But hang on. Did Tulsi Gabbard get a no from a Republican?

Hannah McCarthy: She did. Mitch McConnell, the senator from Kentucky. So the National Security Agency, the NSA, is a part of the US intelligence community. Think of it as cybersecurity for the United States. It also gathers intelligence from other countries, communication systems, weapon systems, etc.. It codes our stuff and decodes other nations stuff. Then it gives that information to our government and military. It also protects our weapons and security systems.

Nick Capodice: Right now, I know that Tulsi Gabbard is a Republican now, but she used to be a Democrat. Did she not?

Hannah McCarthy: She did. This is Gabbard's story. Gabbard was Hawaii's youngest state rep from 2002 to 2004. She became the first American Samoan congresswoman. She served from 2013 to 2021, and during this whole period, she's a Democrat. She was even the vice chair of the Democratic National Committee until she resigned to endorse Bernie Sanders in 2016 for his presidential campaign. Then she joined the Republican Party in 2024. Gabbard is a lieutenant colonel in the US Army Reserve. She has served in the Hawaiian National Guard and the Army Military Police. She has made statements considered sympathetic to Vladimir Putin and to Syria's Assad regime. And all of this adds up to mean that Gabbard has critics on both sides of the aisle. She's also considered to be inexperienced in the realm of national security.

Nick Capodice: And she got the confirmation.

Hannah McCarthy: She got the confirmation. So. Add that to the long list. She has since emphasized the need for America's allies to work with the United States to share intelligence in the interest of, quote, peace, security and prosperity. So do you want to hear who tied with her?

Nick Capodice: Oh, I know who it is, Hannah.

Hannah McCarthy: You do?

Nick Capodice: I do. That would be Robert F Kennedy Jr for Secretary of Health and Human Services.

Archive: Our country will sink beneath a sea of desperation and debt. If we don't change the course and ask why are healthcare costs so high in the first place?

Nick Capodice: Okay, so Kennedy is Attorney General Robert F Kennedy's son and President John F Kennedy's nephew. He is an environmental lawyer and has done a lot of work in clean water advocacy and human rights. He is also propagated the widely debunked myth that vaccines cause autism and spread misinformation about the Covid 19 vaccine during the height of the pandemic. He ran for president as an independent in 2024, dropped out of the race eventually and endorsed Donald Trump. Right.

Hannah McCarthy: So that vaccine thing, Nick, was a major sticking point during his confirmation hearing. When questioned about his views, Kennedy said they were taken out of context that he is not anti-vaccine. In fact, he said he supports vaccines and just wants. Quote unquote, good science. He got the job without Mitch McConnell's vote, and that job is to protect American health. This secretary is charged with preparing for and responding to public health emergencies, administering Medicaid, Medicare and the Affordable Care Act, overseeing medical research and administering funding for it, and repping the US in global health issues. We got one last one, Nick.

Nick Capodice: At least for now, and it is so many people and yet it's not that many people. Do you know what I'm saying? Like, not a lot of people at the top.

Hannah McCarthy: Yeah. And this last of the so far confirmed appointees did not have a lot of support at the top either. 51 yeas and nays. The smallest margin for any confirmed defense secretary in history.

Nick Capodice: So the total of votes here, Hannah, is 101. Which makes me assume that Vice President Vance broke the tie.

Hannah McCarthy: That's correct.

Nick Capodice: And we're talking about Pete Hegseth.

Archive: As I've said to many of you in private meetings, when President Trump chose me for this position, the primary charge he gave me was to bring the warrior culture back to the Department of Defense.

Nick Capodice: The thing that always blew my mind about the Department of Defense, the DoD, is the sheer size of it. It is so big, Hannah.

Hannah McCarthy: It's the largest government agency. We are talking Army, Navy, Air Force, Joint Chiefs of Staff, a bunch of other agencies within that department, by the way, including the NSA.

Nick Capodice: The NSA is part of the DoD.

Hannah McCarthy: It sure is. Over 3 million people work within the DoD. The 2025 budget request was nearly $850 billion. Now the president is the commander in chief. How and when to employ and deploy the military. That is up to Trump. But the Secretary of Defense is responsible for defense policy, for spending that nearly trillion dollars and taking care of people and equipment in our many hundreds of national and international military bases and our thousands of military installations. The Secretary advises the president and helps them develop and implement defense strategy. It is the oldest department with the biggest budget, the most property, and the most people. So, Nick, can you tell these people who Pete Hegseth is?

Nick Capodice: Hegseth is a former Army national major. He served three tours. He then joined Fox News and became a co-host of Fox and Friends. Hegseth is a big Trump supporter. His confirmation hearing got a lot of coverage because it was so contentious. Hegseth has been accused of sexual assault. His former colleagues at Fox have expressed concerns about excessive alcohol consumption. He doesn't have a lot of experience managing people, which is considered a problem when you have to manage millions of people, and he has made statements opposed to women serving in the military.

Hannah McCarthy: That's the long and short of it. Hegseth, by the way, has denied the personal conduct allegations, and during his hearing, he said that women would have access to ground combat roles under his leadership. He got three Republican nays Susan Collins of Maine, Mitch McConnell again, and Lisa murkowski of Alaska. And that, Nick, is all she wrote. If she is the Senate confirming Trump's nominees and also me.

Nick Capodice: But you've said these are the confirmations so far. Who is left?

Hannah McCarthy: Yeah, we are waiting on votes for the secretary of Education, potentially. Linda McMahon, former CEO of World Wrestling Entertainment, aka WWE. The labor secretary, potentially. Lori Chavez-deremer, a former city council member and House rep from Oregon. We are still missing the US Trade representative, potentially Jamison Greer, who's a lawyer. He was also a trade official in Trump's first term. And we are missing the UN ambassador, potentially. Elise Stefanik, a House rep from New York. Wow.

Nick Capodice: Okay. And then that'll be that.

Hannah McCarthy: Well, we won't know till we know, but all of these other nominees are less contentious than some of those who have been confirmed already. If that tells us anything.

Nick Capodice: I think it maybe tells us something.

Hannah McCarthy: All right, so per usual, stay tuned. Civics 101 is going to be here. Basics and not so basics of government right where you need them. And also sometimes trivia about Nick who has lived a very interesting life. His band wants made a commercial for a light bulb company.

Nick Capodice: We did. Oh, how we did. Well, I'm gonna see your trivia and raise you, McCarthy.

Hannah McCarthy: All right. I guess that's only fair, but just like, leave middle school Hannah out of this, she's seen enough.

Nick Capodice: You mean the middle school? Hannah, who painted herself entirely in green and performed for good from wicked and a variety show.

Hannah McCarthy: That does it for this episode. It was produced by me, Hannah McCarthy with Nick Capodice and Rebecca Lavoie, our executive producer. Thank you again, Rebecca LaVoy Christina Phillips is our senior producer. Music in this episode comes from Epidemic Sound. You can find everything else we have ever made, including lots and lots of info on many of our executive branch departments and agencies at Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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This podcast is a production of New Hampshire Public Radio.

NY Times v Sullivan

When it comes to the protection of a free and fair press, there is one landmark Supreme Court case that sits at the top, and it is New York Times Company v Sullivan (1964). 

This case redefined libel in the United States and is cited in almost every defamation suit since, but its origin is in the Civil Rights Movement, when newspapers were sued to the brink of collapse for covering protests in the south. 

Taking us through libel, defamation, and "actual malice" are Ang Reidell, Director of Outreach and Curriculum at the Annenberg Public Policy Center, and Samantha Barbas, professor at the Iowa College of Law and author of Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. 

Click here to watch a fantastic documentary from Annenberg on the case.

Quick note to teachers! Our guests are collaborating today! The first fifty teachers who join the Civics Renewal Network will receive a free copy of Samantha Barbas's book, click here to sign up and get yours today!

Transcript

Note: this transcript is AI-generated and may contain errors

times v sullivan d1_mixdown.mp3

Nick Capodice: Hannah. You saw this in? What was it? Fourth grade.

Hannah McCarthy: Third or fourth? Yeah.

Nick Capodice: I know you were eight, but can you describe what you saw?

Hannah McCarthy: Yeah. This is footage from a civil rights protest in Birmingham, Alabama, in, I think, the early 60s. Students were marching to protest segregation in their city. They were marching peacefully. A thousand kids walking from a church, holding hands, singing. The police told them [00:00:30] to disperse. The kids did not. And the police sprayed the children with fire hoses. They set dogs on them.

Nick Capodice: And what had seeing that so young do to you?

Hannah McCarthy: Uh, it made me sick. I think I was just sitting there slackjawed. I was watching something where there was no political middle. This is, you know, right and wrong, right in front of your eyes. [00:01:00] It was unjustifiable. Violence. It was. It was just pure ugliness.

Nick Capodice: That's the thing that strikes me when I watch footage from civil rights protests. It's it's that it's consistent. Right? It is almost always a black person being hurt, dragged, hit with a fist or a baton, and almost always it is a white hand doing the hurting. When you see an evil like this, when it is filmed and broadcast into your home in 1963, you're forced [00:01:30] to ask, whose side am I on? And that is what this episode is about.

Archival: But, you know, the Sullivan Standard has been a target for conservatives for quite some time, and there's a lot of momentum behind it now.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today's episode is about one of the most important Supreme Court cases in US history. It is a case directly tied to the work you and I do as journalists, and [00:02:00] it is the strongest protection of that work we are talking about. New York Times v Sullivan, 1964.

Hannah McCarthy: So we've talked about this case in other episodes, but when I think of times v Sullivan, I always think about words like defamation, freedom of the press, libel. I don't immediately connect it to the civil rights movement.

Nick Capodice: Yeah. Me neither. And we are going to explain all those terms. But to your point, I usually think of the ramifications of this case, not [00:02:30] what this case was about.

Hannah McCarthy: What was it about? When did it start?

Samantha Barbas: The short story is that a police commissioner named L.B. Sullivan sued the New York Times and some civil rights leaders in 1960.

Ang Reidell: There's all this stuff going on in the background related to the civil rights movement. Right. But the main thing that the case was focusing on was this piece in The New York Times. Now. The piece ran in other newspapers [00:03:00] too, but it was an ad called Heed Their Rising Voices.

Samantha Barbas: My name is Samantha Barbas, and I'm a professor of law at the University of Iowa College of Law.

Ang Reidell: I'm Angela Vidal. I'm the director of outreach and curriculum at the Leonore Annenberg Institute for civics, and I facilitate the Civics Renewal Network. Feel free to cut part of that title.

Nick Capodice: I refuse to cut part of that title, Ange. So, Hannah, we often share [00:03:30] extra resources tied to our episodes, but I'm gonna beseech our listeners to check two out if they have any interest in this case whatsoever. The first is Samantha Barbusse's book, Actual Malice, and the other is a tremendous 30 minute documentary that Android team at Annenberg put out. There are links to both of those in the show. Notes.

Hannah McCarthy: And getting back to the civil rights protests, this was an ad in the New York Times.

Nick Capodice: Yeah, it was it was from May 1960.

Hannah McCarthy: When I think about press coverage of the civil rights movement, that [00:04:00] made a big impact. An ad in the paper isn't necessarily what springs to mind.

Nick Capodice: Yeah, you're correct there there was a ton of coverage in the South. There were press from many papers and broadcasting entities. They had journalists in the South covering these protests, and this coverage was changing people's minds.

Ang Reidell: People were seeing the hoses on the students. They were seeing dogs being sicked on people. Once people could see those images, [00:04:30] these really disturbing images, they knew something had to change. There was a whole network in the South who wanted to keep this system of segregation. If the press was coming in and showing what was happening, they thought that put them in a bad light. And so they wanted to push back using whatever methods they could. They were already using violence, but then legal methods against the press as well.

Nick Capodice: Southern politicians who opposed desegregation, [00:05:00] they seized upon this as a strategy. They saw that if the press continued to cover this brutalization of peaceful protesters, the only solution was to remove the press and you remove them by suing them into oblivion.

Hannah McCarthy: Was there more than one paper sued?

Nick Capodice: Yes. Many more. Sullivan sued the New York Times for $500,000, but that was just the tip of the iceberg.

Samantha Barbas: So The New York Times was sued for about $12 [00:05:30] million over that. Advertisement. So there were at least 6 or 7 lawsuits brought just over that publication. But then the southern officials sued the Saturday Evening Post, The Washington Post, Chicago Tribune, all of these other media outlets so that by the time the Sullivan case got to the Supreme Court in 1963, there were about $300 million dollars worth of potential judgments in the works here. So this was, [00:06:00] in fact, a concerted conspiracy that could have crushed the press.

Hannah McCarthy: What were the grounds for the lawsuit? I mean, the press have a right to be the press report, the news. It is a protection in the First Amendment.

Nick Capodice: It is. But now we are getting into our first legal definition, and that is libel. Libel is something that is written and published that defames someone. It hurts their reputation. And libel is not protected [00:06:30] under the First Amendment.

Hannah McCarthy: Is libel only libel because it's not true? What's the distinction?

Nick Capodice: Well, if we go back a good stretch, Hannah, whether something was true or not was utterly irrelevant.

Hannah McCarthy: I know what that song means.

Nick Capodice: You sure do. We are going back to 1733 to the trial of a guy named John Peter Zenger.

Hannah McCarthy: What did John Peter Zenger do.

Nick Capodice: Zenger wrote a newspaper called the New York Weekly Journal, and at this time us not [00:07:00] yet being an independent nation, England appointed governors to the colonies, and Zenger wrote articles criticizing New York's new British governor, William Cosby, so Cosby wanted a chunk of the salary from the former governor at the court ruled against him, and in an act of retribution, he fired the chief justice of the New York Supreme Court, Lewis Morris.

Speaker6: New York abstains courteously, and Cosby.

Nick Capodice: Said that Zenger's articles damaged his reputation, [00:07:30] and Zenger was put in jail.

Hannah McCarthy: But Zenger's articles were not lies.

Nick Capodice: No they weren't. They were critical, but they didn't have any falsehoods. But at that time, under British law, anything that damaged a reputation was considered libel.

Hannah McCarthy: And what happened to Zenger? Did he go to jail?

Nick Capodice: He was gonna. At the trial, the jury was basically told, if you agree that Zenger wrote these articles, then he is guilty and he did write them. So this seemed like an open and shut [00:08:00] case. But in their findings, the jury said, yeah, he definitely wrote the articles, but we refuse to find him guilty.

Hannah McCarthy: Okay, this is jury nullification, right? Where, you know, the jury is given a set of parameters basically telling them how to make their decision. And they say we actually don't agree to those parameters. We don't agree to the rules.

Nick Capodice: Precisely. And Zenger goes free and a precedent is set if something is defamatory but can be proven to be true, it is not libel. [00:08:30] And that brings us back to 1962. The ad in the New York Times heed their rising voices.

Ang Reidell: Basically, the group supporting Martin Luther King was trying to raise funds for his legal defense. And so there was this huge effort to get people to sign on to the ad. Ads. So there were people like, um, Marlon Brando, you know, Eleanor Roosevelt, lots of people who were already in [00:09:00] the civil rights movement, Harry Belafonte, you know, entertainers, things like that.

Nick Capodice: Wow. Yeah. Nat King Cole, Sidney Poitier, Langston Hughes.

Samantha Barbas: So this advertisement listed a number of things that the southern officials had been doing to civil rights protesters, how they'd been brutalized and how they were kicked out of facilities and so forth. Uh, it turned out that this ad contained a few errors of fact. The ad said [00:09:30] that student protesters sang My Country Tis of Thee on the Capitol steps in Montgomery, when they really sang the national anthem. It said that the police had ringed a college campus when they actually lined up outside the campus. So these really minor errors of.

Ang Reidell: Fact, that's what L.B. Sullivan was suing for, and he sued The New York Times. He wasn't mentioned in the ad at all.

Hannah McCarthy: Hang on. So Sullivan wasn't even in [00:10:00] the ad, and he sued for defamation of character?

Nick Capodice: He wasn't. And he did.

Ang Reidell: I know, it's just like, how can that be? But his his legal point was that since the police in Montgomery were being named and he was the police commissioner, all that was reflecting on him and so he could sue for libel because there were small inaccuracies in that full page ad.

Nick Capodice: Now, Sullivan won [00:10:30] his case in Alabama handily, as did dozens of other people suing media outlets for covering the civil rights movement. And part of the reason he won it so easily and quickly is that the trial was in Alabama. Alabama. Judge. Alabama. Jury.

Samantha Barbas: It was obviously very biased against the New York Times and the civil rights leaders. The judge in the trial was a notorious segregationist. Um, he was [00:11:00] very, like, abusive to the civil rights leaders. Lawyers during the trial didn't allow black jurors to sit in the jury. And there were serious allegations of racial discrimination. You know, in addition to the bias against The New York Times.

Nick Capodice: So in this instance, the burden of proof was on the media outlet. They have to say that every single thing they report is true, and they have to prove it in [00:11:30] court.

Samantha Barbas: And that's very hard to do to prove the truth of something in court. And then also the law was that even if the publisher made an innocent mistake, they got something wrong just because, you know, they were careless in some minor way, they could still be liable. It's strict liability. So it's was really easy for people suing the press or other people to win defamation cases.

Nick Capodice: And again, Sullivan suing the New York Times was a drop in the bucket. These cases were happening over [00:12:00] and over, and newspapers were faced with a choice. Pull all your reporters out of the South or fold. No matter how big or well-financed they were, they could not take an endless stream of litigation.

Hannah McCarthy: So what happened?

Nick Capodice: I'm going to get to the arguments, the decision, as well as some modern day stuff going on with times v Sullivan. But we got to take a quick break.

Hannah McCarthy: But before that break, just our constant reminder that Civics 101 is made by a public radio station and you are the public. [00:12:30] Consider making a gift to support our work at our website civics101podcast.org. We're back! You're listening to Civics 101 and we are talking about the landmark Supreme Court decision New York Times v Sullivan. When we left off, the times had just lost their Alabama trial.

Nick Capodice: They did, and the New York Times appealed their case to the very top, it was argued [00:13:00] in the Supreme Court in January 1964. Here is Samantha Barbas again.

Samantha Barbas: Essentially, the lawyers for Sullivan are saying libel law has always been outside the First Amendment. That is to say, the Supreme Court had always said that libel law didn't implicate any constitutional free speech issues. And the times lawyer is saying, actually, libel law really does raise big free speech questions and that it is time for the Supreme Court to now [00:13:30] analyze libel law under the framework of the First Amendment and lists a number of reasons why it's imperative that the court take that step.

Archival: Our first proposition is that this action was judged in Alabama by an unconstitutional rule of law, the rule of law offensive to the First Amendment, an offensive on its face to the First Amendment.

Samantha Barbas: The lawyer for The New York Times was [00:14:00] a Columbia Law School professor named Herbert Wechsler, and he was quite a scholar, and he made this historical analysis. He went back to 1798, when a Sedition Act was passed in the US, and essentially that criminalized criticizing the government.

Archival: And we are actually making here in relation to this rule of law, the same argument that James Madison made [00:14:30] and that Thomas Jefferson made with respect to the validity of the Sedition Act of 1798.

Samantha Barbas: And at the time, it was generally agreed that that was totally unconstitutional, that the ability to criticize Government is the heart of the First Amendment.

Nick Capodice: And speaking to the First Amendment. Hannah, it is worth mentioning here, as we do in every episode that touches it, Supreme court cases dealing with the First Amendment were very rare. They were quite late in our history. There [00:15:00] was one famous press case called near v Minnesota, which dealt with prior restraint. Basically, the government cannot preemptively censor a newspaper for printing something they can be punished after, but they cannot be stopped from doing it.ht. So there was not a whole lot of precedent here for the court to go on. And that is why the times lawyer had to go all the way back to the Sedition Act, which was denounced by James Madison and Thomas Jefferson.

Samantha Barbas: And so Wexler, he's almost making like an originalist argument. So he says that [00:15:30] what the Alabama courts are doing is essentially punishing people for criticizing government. Right. The times is being punished because it published criticism of Sullivan. That's no different than being punished for sedition. And that goes absolutely against what the First Amendment stands for.

Hannah McCarthy: All right. Let's hear about the ruling.

Nick Capodice: Who won? The winner in this one, Hannah, is the old Gray Lady. The New York Times again. Here's Andy Riedel.

Ang Reidell: It [00:16:00] was a unanimous decision, saying that in order for there to be libel, there had to be actual malice. And that's the phrase that all the law students learn. That was a change to what had been. They were saying inadvertent mistakes can happen, and it can only be libelous if there is actual malice behind their reporting.

Samantha Barbas: Actual malice means [00:16:30] essentially knowledge of the falsity of a statement or publishing a statement with reckless disregard of the truth. So in order to show actual malice, the plaintiff has to show that the defendant either knew that the statement was untrue.

Ang Reidell: Or if they should have known or been suspicious that it wasn't true. So those are the two things. And it and it really does switch kind of the burden of proof from one side [00:17:00] to the other. The powerful people who are saying that's libel now have to prove that the press was using actual malice.

Hannah McCarthy: Was there a fallout after this ruling came down? We so often hear about a landmark ruling, let's say Brown v board or Loving v Virginia, where the Supreme Court says something and the states take, you know, a few decades to comply. But that couldn't have happened here, right? Because if someone sued you for libel and it was proven [00:17:30] that there was no actual malice, that lawsuit just wouldn't have a chance. Right.

Nick Capodice: And because it applied immediately, the media knew it was now safe to report in the South. And look, I know you got to be careful playing a game of what if when you're looking at history. But what if the court had ruled the other way? What would that have done to the civil rights movement? How would it affect, you know, journalism writ large?

Hannah McCarthy: Part of the reason we're talking about [00:18:00] this case right now is because times v Sullivan is in the headlines.

Nick Capodice: Sure is.

Archival: If we see the Wynn case, make it to the Supreme Court, and the Supreme Court decides to get rid of the New York Times versus Sullivan decision, a precedent that's been in place for 60 years. Consider it game over.

Nick Capodice: Most recently, Las Vegas casino tycoon Steve Wynn has petitioned the Supreme Court to rule on his defamation case. He sued an AP reporter in 2018 [00:18:30] who wrote about several sexual assault charges against him in the 1970s. Now Steve Wynn lost, but he is looking for an appeal. He has petitioned the Supreme Court and his petition is explicit. It says his case is asking, quote, whether this court should overturn Sullivan's actual malice standard. End quote.

Hannah McCarthy: Do we have any idea whether or not the Supreme Court has indicated any interest in taking this case?

Nick Capodice: Yes and no. The Steve Wynn case [00:19:00] seems like it won't be heard. And I say that because I read an article this morning saying that Justice Kavanaugh has been citing Sullivan as precedent on other rulings, which kind of implies this isn't a typical conservative liberal justices debate. However, two Supreme Court justices, Clarence Thomas and Neil Gorsuch, they have been vocal about a desire to revisit the decision.

Archival: And there's a lot of momentum behind it. Now. In a separate opinion, Justice Clarence Thomas, joined by Justice Neil Gorsuch, said it was [00:19:30] time to revisit the standard. So, you know, the idea is out there. And with six Supreme Court conservatives, you don't know that the rules are going to remain the way they are in 2023.

Nick Capodice: Justice Thomas wrote, quote, the court usurped control over libel law and imposed its own elevated standard. And New York Times Company v Sullivan, end quote. And also that quote, the court did not base this actual malice rule in the original meaning of the First Amendment. End quote. So it's percolating. [00:20:00] Cases are coming up. Petitions to overturn times v Sullivan have increased in the last 20 years. So is that 1964 ruling safe? We do not know.

Hannah McCarthy: All right. So, you know, I often don't like looking into the future, making predictions, etc.. But I am curious, in this case, did Ange or Samantha offer any insight into what would happen if Sullivan was overturned? They did.

Ang Reidell: Well, [00:20:30] I think, um, anytime freedom of the press is threatened, um, then there are serious fallouts because it's the press that, um, you know, are looking into the stories that of what our government is doing and informing us of that. That is what is happening in our world, in our country, in our communities.

Samantha Barbas: So I think it would become much more difficult for the press [00:21:00] to write about not only public officials, but really anybody in the news. There would be a real chilling effect. Journalists would have to really think twice before, uh, reporting on public affairs. And, you know, I think back to what things were like in the South in 1960 when it was so easy to weaponize libel suits. And I think there are many people today who would love to use libel [00:21:30] law to crush their opponents. And if Sullivan weren't in place, that would really be a possibility.

Ang Reidell: You know, it's right there in the First Amendment. So that has a huge impact on our lives by, you know what, what we can learn, how we can learn it. You know, we have the right to to that information about what our government is doing. And if the free press is not there, then there is there is a problem.

Nick Capodice: Ok, that's Times v Sullivan. Huge thanks to the folks Annenberg Classroom for helping us out, you really should see that documentary it's fascinating. This episode was made by me Nick Capodice with you Hannah McCarthy, thank you always, our staff includes producer Marina Hencke, Senior Producer Christina Phillips, and Executive Producer Rebecca Lavoie. Music in this ep from Blue Dot Sessions, Epidemic Sound, Scanglobe, Scott Gratton, Bio Unit, and the composer I wouldn't defame for a million dollars, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 

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This podcast is a production of New Hampshire Public Radio.

All The President's Lawyers

Have you ever wondered what the White House counsel does? Who it is? Whether that person is the president’s personal lawyer…or something else? And what about the Justice Department? Where do all those legal types fit in?

Our guest is political science professor Nancy Kassop. She’s an expert on many things, but her extensive experience interviewing White House counsels helped us dig deep on this topic. We also dive into the legal norms and traditions that are being strained under the Trump administration.

Civics 101 is hosted by Hannah McCarty and Nick Capodice. Christina Phillips produced and anchored this episode. 


Transcript

Note: This trancript is AI-generated and may contain errors.

All The President's Lawyers

Christina Phillips: I'm just going to go ahead and get started.

Nick Capodice: Sounds great.

Christina Phillips: All right.

Christina Phillips: Hi. Hello. Are we ready to do this?

Hannah McCarthy: I'm ready.

Nick Capodice: Born ready. Phillips.

Christina Phillips: All right. You are listening to civics 101. I'm Cristina Phillips, and today I have dragged you, our host, Hannah McCarthy and Nick Capodice, into the studio to talk about the most powerful lawyers. We're gonna start by talking about the White House counsel, also known as the president's in-house go to adviser for. Can I do this? Should I do this? And how can I do this?

Hannah McCarthy: All right.

Nick Capodice: Sounds good.

Christina Phillips: Yep. And later we're going to talk about the Justice Department and the relationship between the president and federal law enforcement.

Hannah McCarthy: I am quite excited for this, because while I have a general sense of how all of these things go on, this is like a prime example of one of those civics, one on one things that we try to avoid, which is assuming that we know anything. Right. This world within the executive branch is something that I think I know, which is dangerous because I it means I haven't looked into it. So. Huzzah! Christina.

Christina Phillips: We're also going to talk about the difference between lawyers who work for the government and lawyers who work for a person, and if when that person is the president, is there a line between them, because it's not really clear that there's a line anymore.

Hannah McCarthy: Okay.

Nancy Kassop: When the president says, I'm going to ask my Department of Justice to criminally prosecute people who served on the January 6th committee or people who were legally my opponents, we've never seen that before.

Christina Phillips: That's Nancy Kassop. She is a political science professor at the State University of New York at New Paltz, and she studies the relationship between the presidency and the legal system, particularly the White House and the Department of Justice. And she's interviewed a number of White House counsel's over the years.

Hannah McCarthy: So I think we should be explicit, right, that like she is talking about something that just happened, right? This is not a hypothetical. She's saying we've never seen before what is actually happening right now. And it seems to me like she is implying that this is the president using the Justice Department personally.

Christina Phillips: Yeah. Yeah, exactly. So President Trump has been accused of weaponizing the Justice Department against his personal political enemies, and he has said that those political enemies include people inside the government, those Justice Department employees who, on behalf of the government, investigated him for alleged attempts to overturn the results of the 2020 election and alleged withholding of public records, including classified documents, after leaving the White House. And we should say that since his reelection, the Justice Department has ended those investigations.

Nick Capodice: It does, though, feel like there is a long and storied tradition of presidents rewarding friends and punishing enemies. It's just this is the first time I feel we've seen him use the Justice Department to do that.

Christina Phillips: Yeah, it's the first time that a president has explicitly said that people in the Justice Department were his enemies, and said that he is going to order the Justice Department or mandate the Justice Department to investigate people who investigated him as a person in office and out for federal crimes.

Hannah McCarthy: And given the recent Supreme Court decision about executive immunity. We're in a sort of different legal landscape now.

Christina Phillips: Yeah, yeah. So the unprecedented part is sort of multifold in that, like, we have no precedent to compare this to because no president has looked like Trump or even close. And then also the way that he is positioning people and the way he is appointing people is unusual, even though presidents have appointed people who were friends. You know, this is unusual.

Hannah McCarthy: Okay.

Christina Phillips: So I think the central question I want to get to today is, is the Justice Department a tool for the president to use to enforce a political agenda? And when we hear about the president's lawyers, are we talking about the federal government employees or private lawyers or both?

Nancy Kassop: There are lawyers in the White House, and there are lawyers outside of the White House. And so the lawyers outside of the White House would be those in the Department of Justice, as well as every one of the cabinet departments, also has a general counsel lawyer. But for this purposes, the White House counsel is the lawyer. Inside of the White House actually is part of the White House staff. So when you see other people in the White House staff, such as the press spokesperson or the White House chief of staff, that White House staff office is relatively small and it is situated, you know, physically within the White House. The job of the White House counsel is to look at the presidency as an office and to protect its prerogatives. And so the kind of advice the White House counsel would give to the president, we often talk about it as being a mix of politics, policy and law. So, in fact, it's the White House counsel's job to tell the president when the president wants to take some kind of action, whether it's some military action or whether it's signing a law from Congress. The White House counsel will give the president legal advice. Is this constitutional? Is this legal? Is this good policy? Is this wise?

Christina Phillips: The White House counsel started with Franklin Roosevelt, and it's evolved over time. It used to be more of a policy advisor and a speechwriter, and now it's a legal adviser. I also want to note that this is somebody who's in the office at the behest of the president. They do not have to be nominated and confirmed by the Senate. So there's really not congressional oversight over this position in the way that there would be for a political appointee in the Justice Department.

Nick Capodice: This sounds kind of like an advisor, you know, like like what is it, chief of staff? Isn't that also an advisor who's like, I'm going to help. At least I'm just going by the West Wing model.

Hannah McCarthy: Yeah.

Nick Capodice: Margaret.

Archive: Have we heard anything from the president this morning?

Archive: No, sir. You want me to call Debbie?

Nick Capodice: No, but it sounds like the White House counsel is somebody who you want to be. Kind of like your buddy a little bit, but also has a really good understanding of the law and the Constitution and and can say, you can do this and you can't do that. But if you wanted to do this, let's come at it from this angle. It's like a real strategic you want a real good game player to have that job.

Christina Phillips: Yeah. And I think some of the things that the White House counsel and sometimes you'll hear like counselor to the president and they'll, they'll be used interchangeably. Sometimes the White House counsel is oftentimes the person who if the president says, oh, I want to do this, can I do this? The White House counsel is the one who's going to go to the Justice Department, to the Office of Legal Counsel, which has all this institutional history about how laws have been applied and say, so, what's your official recommendation? And then the Office of Legal Counsel will come back and say, you know, we think you could do this or not this. And then the White House counsel has to sort of seek out ways to do it. If they don't have the information, they're consulting with other lawyers that can help them advise the president on what they're supposed to do.

Hannah McCarthy: So when I think about, let's say you're a really high power lawyer, whatever term you would use for it, you have a huge staff of people who do a ton of research and prepare a bunch of documents, and they like, let's say you're looking for a loophole that can take like hundreds of hours. So you have to have a bunch of people working for you to, like, produce the document, the loophole that you need. So are the lawyers in the Justice Department effectively the White House counsel's support staff, or does the White House counsel have paralegals and other individuals working for them that do that?

Christina Phillips: The latter for sure. So the White House counsel is going to have an office of staff. And so these are all people where when the president says, can I do this thing? Or I'm thinking of making this decision. Or, you know, maybe Congress is investigating me. Should I turn over documents like, what's my right here as the president? The White House counsel is then going to find that information. And so they may consult the Justice Department. And we will talk about the firewall that's been put in place a little bit later about like, how much the Justice Department is going to tell the White House what it's doing. But as far as the White House counsel, they are going out and getting answers from these other legal advisers like the AG is going to be also advising the president. Here's what I think you should do. And national security counsel. But the White House counsel is sort of like the filter and the one who's also making sure that White House employees are following ethics rules and and making sure that the president isn't meeting with anyone that could give the appearance of something nefarious. Like they're really interested in protecting the president's image, but also protecting the institution of the presidency and the powers that the president has.

Nancy Kassop: And so the relationship between the white the White House Council and the. The person who is in charge of the Office of Legal Counsel's Office. The White House counsel will say, can I do this? And frequently, the person in charge of the Office of Legal Counsel will say, no, you can't. I mean, again, when I've talked to people who've served in the White House counsel's office, they have said it's a very conflictual kind of relationship because I often don't get the answer I want. But then the White House counsel's job is to be creative. That particular office often, and not so much under the Trump administration. And again, it depends on the personalities of who's appointed in that office. But that office has often had the reputation of actually being very solicitous of the president and giving the president green lights to go ahead and do things. And so it's often known as somebody that the president can turn to and say, okay, I have authority from the Office of Legal Counsel. I can do this. The opinions that get published are often the ones that are permissive to the president that president that will say the president has the authority to do X, Y, and Z. Frequently, what doesn't get published is the oral advice that the lawyer in the Office of New Counsel gives to the White House counsel. What the public sees that gets published are the opinions that are mostly favorable to what the president wants to do, and the opinions that are negative of that often don't see the light of day because they're only exchanged through an oral exchange rather than a written one.

Hannah McCarthy: You know, I think about the fact that, like a personal lawyer is probably perceived by somebody as being someone who is loyal to them, right? Like you're paying them. And so they're gonna they're gonna back you up. Is it a similar deal with the president? I mean, is this White House counsel expected to be, quote unquote, loyal to the president as a human person?

Christina Phillips: I'll first say that it is pretty common for these White House councils that get appointed to have had a relationship with the president before they were in office.

Nancy Kassop: And the White House counsel's job as a lawyer. And this is one that a lot of people don't often understand is the lawyer for the institution of the presidency. So people think, well, is this person the president's personal lawyer? Does this person give the president personal legal advice? And the answer is no. And that is an important distinction, is that this person's job, even though it is a an appointment by the president. So it's often somebody that the president knows quite well. The important point here is that it is not someone who technically owes their loyalty to the person of the president, but in fact to the institution of the office of the presidency.

Nick Capodice: I think a reliable White House counsel would be more of an improviser and say yes and instead of no, because I've.

Nancy Kassop: I've had the opportunity to interview many people who've served in the office of the White House counsel. You know, one of the things they will say is that their job is when the president wants to do something that seems legally questionable, their job is to find a way. And I use that phrase very, very, you know, advisedly to find a way to tell the president this is how you can reach the policy outcome you want, but you can do it in a different way that will be more legally, you know, responsible. And the White House counsel's job to say to the president, if you don't take my advice, and if you do this particular action the way you want to, you could be making yourself legally liable or you could be subject to impeachment.

Christina Phillips: So a couple of things the White House counsel advises the president on are pardons on judicial appointments, other political appointments. And then, of course, executive orders.

Nancy Kassop: On the first day of a new president's administration, it is now very common for the president to president to issue a slew of executive orders, and many of those executive orders are setting in place policies the president wants to be able to pursue. And many of them are also repealing the executive orders from the previous administration.

Christina Phillips: They screen people who come through the White House and train the White House staff on ethics.

Nancy Kassop: Let's put it this way. Every person who walks into the Oval Office to speak to the president is supposed to have been somehow either approved or vetted by the White House counsel. In other words, to make sure that unsavory characters don't get into the Oval Office to talk to the president. Because, again, the council is protecting the office from bad influences. The White House counsel is supposed to advise the president on pardons. That's obviously a very, you know, interesting and timely kind of issue, and particularly at the end of a presidency, that is the time when we see a flurry of pardons. It's like the like the last couple of weeks of the presidency.

Christina Phillips: And they communicate with Congress. So when Congress is drafting legislation, legislators will go to the White House counsel and say.

Nancy Kassop: Do you think this is something the president's going to approve? Will the president sign this, or is the president likely to veto this? So the White House counsel is sort of relaying the president's position on legislation as it's being drafted.

Nick Capodice: So who gets the job like historically, like what kind of person gets hired to be White House counsel?

Christina Phillips: Yeah. So the first thing I'll say is they do not have to be a lawyer. Really, the only office Congress is mandated in the executive department that has to be a practicing lawyer is the solicitor general.

Hannah McCarthy: So the so the AG does not have to be a lawyer?

Christina Phillips: No.

Nancy Kassop: You know, political scientists love this sort of fact. Is that the only office for which you actually have to, by virtue of a law of Congress, Congress requires that the person who serves as solicitor general, the lawyer for the government of the United States, must be a bona fide certified lawyer. The attorney general doesn't need to be a lawyer. The White House counsel doesn't. Of course, obviously, practice has determined that. Those people, of course, are always lawyers. But there's no actual written requirement anywhere, with the exception of the Solicitor General. So that's sort of interesting.

Christina Phillips: So the White House counsel is almost always a lawyer, but they are not going to be representing the president or the federal government in trial. They may serve on a legal team, which they have in the past, including for impeachments, but they are not necessarily like they don't have to be able to show up in court and argue on behalf of their client. So it's not unusual for the White House counsel to have a personal relationship with the president before they were in the White House. So this could be a former advisor in a different political office, or a legal advisor on a campaign or even a personal attorney. And on the other hand, some presidents choose someone who's had a lot of experience in Washington and in federal court. So there have been former judges. There's even been one that was a White House counsel for a previous president.

Nancy Kassop: The kind of people who would serve in either of those offices. As I said, there are two models. Some presidents choose their White House counsel as somebody they can trust. It often is somebody they've known over a long period of time. President Bill Clinton chose his best boyhood friend, Mack McLarty, back from, you know, little Rock, Arkansas, as his White House counsel because it was somebody who he knew would give him unvarnished advice, would be looking out for the president's best opportunities. And so the White House counsels that have come in that have been close friends of the president are often people who are not very familiar with how Washington runs. You know, it's sort of a balance. On the one hand, the president says, well, I know this person is going to look out for my best interests, but this person might not be the one who has had contacts throughout the government and throughout Washington and understands, you know, national politics. It really depends on each individual president as to which model they choose.

Christina Phillips: For example, Clinton and H.W. Bush both had White House counsels who were legal advisers during presidential campaigns or for their personal businesses. But then when Clinton was being investigated by Congress, he brought in Charles Ruff, who's a trial lawyer for the Department of Justice. And he actually worked on the investigative team during the Watergate scandal. So he had been part of the team that investigated Nixon and the Justice Department during Watergate, and he worked as a U.S. attorney in D.C.. So he understood impeachment trials, and he really understood D.C. politics.

Hannah McCarthy: And he understood what's going on when someone's looking into the president's behavior. Right. Because he did.

Christina Phillips: It. Yeah. So sometimes you want to bring in a White House counsel who's a super player in the D.C. area, who has a lot of influence and a lot of institutional knowledge that someone who's worked for the president for years might not have. And then Trump, in his first term, for the most part, appointed White House counsels who represented him as a private citizen, his business or his presidential campaigns. One example is Don McGahn. He worked on Trump's 2016 campaign, and he represented and defended him in lawsuits brought against the campaign for alleged voter intimidation. Pat Cipollone. He represented Trump in commercial litigation, but he also worked for Bill Barr when Barr was an attorney general to H.W. Bush. Trump's current White House counsel is David Warrington. He is an election law specialist, and he was on Trump's 2016 campaign, and he was his personal lawyer for lawsuits following the January 6th Capitol attack, and was his general counsel for the 2024 Trump campaign.

Nancy Kassop: The other point about the White House counsel is they can only give legal advice. It's up to the president to decide whether to take that advice or not. All the counsel can say is, if you don't listen to me, it might not work out very well for you.

Christina Phillips: It's also worth mentioning that White House counsels can be subpoenaed, and they have been to testify before Congress or the Justice Department about their legal advice and what the president did with that with that advice.

Archive: They had been seeking his testimony for months and today it finally happened. Former White House counsel Pat Cipollone arriving on Capitol Hill. A key witness to Donald Trump's efforts to overturn the election and to the chaos.

Christina Phillips: One big, big thing I want to emphasize is that the White House counsel is not supposed to carry out investigations itself on behalf of the White House or within the Justice Department. They don't have the authority to investigate people, whereas the attorney general, the deputy attorney general are given that power.

Hannah McCarthy: Mhm.

Christina Phillips: So what we're going to do now is we're going to start looking at the relationship between the White House and the White House counsel, and the president and the rest of the Justice Department. So we're leaving the White House. We're sort of like floating in that space between the White House and where the attorney General's office is, what's happening in those communications and also, what is the Justice Department supposed to be doing? And how much of a firewall is there between what a president wants and what the Justice Department is required to do, which is enforce federal laws?

Hannah McCarthy: Okay.

Christina Phillips: We will talk about all of that after a quick break. We're back. This is Civics 101. We've been talking about the White House counsel, but now we're going to talk about the relationship between the president and the Justice Department at large. And I feel like now is a good time to really define what the Justice Department is. Just to make sure we all know what are the things that the Justice Department does. Do you want to try to take a stab at a couple of those?

Hannah McCarthy: The Justice Department is an executive department, so it's a part of the executive branch. The executive branch is the branch that has the most enforcement power. The president and other people take an oath of office to uphold and defend the Constitution, right? So my understanding is that the Justice Department ensures the enforcement of the following of federal laws.

Nick Capodice: That's pretty good. Isn't the Justice Department the bridge between the executive branch and the judicial branch, where they are taking rulings from the courts and applying those rulings to everyone?

Christina Phillips: Yes. And also, if the Justice Department or the executive branch decides to charge people with crimes or bring them to court, they are bringing them to the judicial branch where the courts will decide. And that's also true if people want to sue the government or they want to file a lawsuit against something happening in the executive branch, they are going to the judiciary. And then the Justice Department is representing the federal government and those actions on behalf of the executive branch.

Hannah McCarthy: And we should say, like there is discretion here. Like I think about all the time, especially given our federalist system, right? Which means that there are 50 little, slightly sovereign states. And then there's the big federal government. There are things and I think like the prime example everyone thinks about, even though lawyers absolutely hate when people bring up this example, is marijuana being a schedule one drug, right? The federal government could bust up every single dispensary that is legally permitted by states, because these states have decided to engage in commerce around a schedule one substance. They just choose not to. Right. First of all, it's a whole part of the economy. Now. People would find it really unpopular at the state level. The federal government is looking for litmus tests, right. So it's looking basically for the states to mess around and see what works and what doesn't. And then maybe they change federal law. And also that would just be so chaotic.

Christina Phillips: Yeah, I think that's a really good example of, you know, how vast this kind of network of institutions and laws are. A couple of other things I want to touch on is that the Justice Department includes the FBI, the U.S. Marshals Service, the DEA, and 94 separate districts across the US with their own district attorneys and staff. And there's over 100,000 people in the Justice Department. Many of them are nonpolitical career positions. So they're they're civil servants that are working in the Justice Department. Other executive branch departments have their own enforcement arms, but the Justice Department is where they go for help and support. So the Office of Legal Counsel, for example, that the Justice Department is helping advise other executive branch departments on what they can do or what they should do, how they should apply the law, and also can help with enforcement against violations of federal law.

Nancy Kassop: What's important to sort of emphasize, and what the public often doesn't recognize, is how much of the government is populated by career people. And they will say, you know, I've worked, you know, in the in the next desk to this person. For the last 30 years, I couldn't tell you what their political opinions are or what political party they belong to. But the top layer is what our political appointees, and there are very few of those there, just the heads of each of the divisions within the Justice Department. And that includes the attorney general, the deputy attorney general and the Solicitor General. Those are political appointees. They must be confirmed by the Senate.

Nick Capodice: Also, the Justice Department, these people carry guns. They don't just say what someone should do, they enforce it.

Hannah McCarthy: It's law enforcement.

Nick Capodice: It's law enforcement. It's America's cops.

Christina Phillips: Yeah, that is given to it by Congress. Like Congress writes, the laws that say that, yes, the Justice Department can do this. This is what law enforcement looks like on a federal level. So let's talk about these top political appointments in the Justice Department. We've got the attorney general who oversees the entire Justice Department, the deputy attorney general, who has almost exactly the same powers as the attorney general, but does more of the everyday logistics and enforcement of department policies. And then there's the solicitor general who represents the federal government in court. And I asked Nancy, you know, okay, so where does the White House counsel fit in? If there's all these people over in the Justice Department? And then there's the president in the White House. What is the White House counsel's role in communicating with all these different people?

Nancy Kassop: That's an excellent question. And in some respects, the white you sort of think of the White House counsel as the hub, the center, the spokes of the wheel, because all of these other executive branch offices and departments and agencies are running things through the White House counsel, and it's the White House counsel's job, really, to be, as one counsel put it, the best law firm that the president can have access to.

Nick Capodice: I've worked with a lawyer before. You know, lots of my friends and family are lawyers, but a lawyer is first and foremost an advocate for you, the person who hires them. And the word advocate I want to advocate for you. Avocado. It's that's what a lawyer's job is, is to represent you. And I can't get over this feeling that the job of White House counsel really does have one client. I mean, ostensibly, it's it's it should be America. It should be democracy. But it seems like first and foremost, the White House counsel is going to say, you know, I'm going to advocate for you, Mr. President. Just something I'm wrestling with.

Christina Phillips: Yeah, I'm glad you said that, because that kind of leads into where that line can be crossed, where perhaps a White House counsel or even the Justice Department are acting on behalf of this person in the White House, this person with the position of president in a way that may not align with federal law and also with the interests of the public. And so I'm going to bring us to Watergate and talk about how Watergate kind of revealed this issue between like, the personal interests of the person in office and the Justice Department and this law enforcement arm of the executive branch.

Archive: Just a year after that great election victory, Richard Nixon is now perceived by an increasing number of Americans to be unworthy of the mandate. And so there is tonight, a real persistent and substantial question of whether the president can, in fact, carry out his responsibilities.

Christina Phillips: So do you guys remember what happened with Watergate, as far as the involvement of people in these political positions in the Justice Department?

Nick Capodice: Well, I know some names from Watergate because my father used to sing me the song that when Haldeman and Ehrlichman, Mitchell and Dean, the one name I know that's a White House counsel is Chuck Colson. Charles Chuck Colson was in the office of the White House counsel, and I know that because all the president's men.

Archive: Said, you work for Colson.

Archive: Steuben's crazy. I never worked for Coulson. He said I worked for an assistant. Coulson was really big on secrets anyway. Even if I had worked for him, I wouldn't know anything.

Nick Capodice: She's a great movie.

Hannah McCarthy: I've not thought about it until just now that the title of that movie is meant to say. People think that one guy did something wrong. No. This is the story of when everyone colludes. Yeah, all of the president's men were like, let's do this, guys. Let's make this happen. You know.

Nick Capodice: I have also never thought of the title because, you know, I read the book when I was so little.

Christina Phillips: Yeah, yeah. Essentially, the story here is that Nixon's reelection campaign was working with his White House counsel and senior White House staff, and the attorney general at the time, John Mitchell, to carry out this scheme of illegal activities, including breaking into and wiretapping the Democratic National Committee. And what I find interesting about this is that the FBI, which is part of the Justice Department was investigating that break in, and that's when they made the connection to Nixon's White House staff. And, of course, by that time, the White House and the acting FBI director were already starting to destroy evidence, and the attorney general was trying to cover things up. And a bunch of these people were charged with federal crimes afterwards. But the investigation process itself was pretty compromised because these were people who were violating federal law while they were federal law enforcement. And afterwards, naturally, the public is very suspicious of the Justice Department and the White House because of the whole colluding with one another to break the law and then cover it up. And so Nancy told me that one of the solutions that Carter's White House counsel came up with, his name is Griffin Bell. He wanted to instill trust in the executive branch again. So he wanted to create some sort of firewall that would demonstrate that there was a separation between the White House and the and the Justice Department. And here's how we went about doing that.

Nancy Kassop: And so he was trying to bring some sort of sense of civility and sense of ethics back to the Justice Department. And so he established this process that the Justice Department would write up a memo. Um, and the White House counsel would write a depart memo called the Contacts Policy. I mean, I actually describe it as the no contact policy, because what it meant was that the the Department of Justice is supposed to be completely separate from the president when it comes to particularly law enforcement or any type of, uh, criminal matter, that somebody that might be a person that the president knows who is about to be indicted and there is to be no contact, with the exception of the White House counsel and the attorney general. So at the very highest levels of both offices, they are permitted to talk to one another. But beyond that, there's a prohibition on anybody else unless they are designated by the White House counsel or the attorney general. But it's supposed to be that the person to person contact between those two offices is only at the very top level, and the idea is to keep the president insulated from any kind of criminal indictments that the Department of Justice may wish to bring.

Nick Capodice: Christina, can you just clarify this for me? Is the president not supposed to have any communication whatsoever with the attorney general?

Christina Phillips: I think this is all like norms.

Hannah McCarthy: Mhm.

Nick Capodice: Someone's got a case of the spouses. Yeah. This is like you're not supposed to.

Christina Phillips: Yeah. I think the word we're looking for here is tradition. There's been a tradition that the White House should not interfere, or at least keep the appearance that it's not interfering with Justice Department investigations. Even Trump, during his first term in office, didn't directly order the end of a Justice Department investigation into Russian interference in the 2016 election, though he was very unhappy about it. And he did fire the FBI director, James Comey, for his participation and overseeing of this investigation. And that, of course, is part of a pattern we see with Trump and his first administration, where he fires people or they leave because they refuse to do what he wants, especially in the Justice Department and in the White House and some of his top advisers. We're going to talk more about the relationship between the interests of the White House and the interests of the Justice Department. Right after a quick break. We're back. This is Civics 101. I'm Cristina Phillips, and we have been talking about the supposed firewall between the White House and the Justice Department. And one thing I do want to say is that former presidents, especially after Watergate and this includes Reagan, Bush, Clinton, Trump and Biden have all been in office during investigations carried out by the Justice Department that involve their allies, their family members, members of their campaign. And many of these are what are called special counsel investigations, meaning the Justice Department appoints people outside of normal Justice Department channels because they want to guard against any conflicts of interest, like if the A.G. was involved in something, a special counsel would be shielded from the A.G. getting involved so the Justice Department can investigate independently, and whether the president is actually shielding themselves for involvement or not is kind of up for debate.

Christina Phillips: But also, presidents have asked for their Justice Department to carry out these investigations or express their frustration at those investigations. But there has been an effort since Nixon to put on this show that the president is not making the final call and that the Justice Department is allowed to investigate things it needs to investigate. And all of all of that is usually laid out in a contact policy. And that's usually written at the beginning of a president's administration by the White House counsel that lays out, you know, the firewall that will exist. So only these people between the White House and the Department of Justice will communicate with each other. There will be no presidential involvement in investigations, that kind of thing. So I think now is a good time to talk about when we hear the words unprecedented. What is different about Trump as a president compared to presidents past? I don't think we can really do a 1 to 1 comparison about what Trump is doing compared to previous presidents, because no presidents past have had the kind of legal history that Trump does. So there are three things that we should think about. One, Trump has been charged with more federal and state crimes and been in more civil lawsuits, and has been investigated by the federal government since he left office than any other president in history. He has a large network of personal lawyers who have represented him in these cases. And to say that Trump has felt as though the federal government has been conspiring against him would be an understatement.

Archive: The ridiculous and baseless indictment of me by the Biden administration's weaponized Department of Injustice will go down as among the most horrific abuses of power in the history of our country. The entire thing has been a witch hunt, and there is no collusion between certainly myself and my campaign. But I can always speak for myself and the Russians. Zero.

Christina Phillips: There is really no model that is like Trump as far as his position and his history as president.

Nick Capodice: It's not just since he was president. Donald Trump has a history of courts and laws and going back decades.

Hannah McCarthy: Yeah.

Christina Phillips: So here's number two. The other thing we have to consider when we talk about Trump is that he's only the second person to run for reelection, lose and then run for reelection again and win and then return to office. So the first was Grover Cleveland, and I know the sample size is one, but he was not indicted for federal crimes when he left office.

Nick Capodice: No, he just made Labor Day.

Christina Phillips: Yeah. And number three, since his return to office, Trump has begun the process of filling the highest positions in the Justice Department. These are political appointees with people who defended him in court.

Nancy Kassop: Okay. So we are heading into a very and it's a very overused word, but it is true, a very unprecedented set of circumstances in that the White House counsel, as well as the attorney general, the deputy attorney general, the associate principal, attorney general, which is the third person, and the solicitor general are all people who have been private lawyers for the incoming president. That has never been the case before. From my point of view, it will be fascinating to see how they exercise their authority in those positions. Clearly, these are people who have personal connections to the president. That's in itself not necessarily anything disqualifying. But to have served the president in a legal capacity as a private personal attorney versus now having to do a complete sort of turnaround to become the lawyer for a governmental office is a very different kind of opportunity. It'll be fascinating to see how they manage to do that.

Nick Capodice: The White House counsel I can understand as being a job. I agree from someone that's been with you through thick and thin. But in terms of the people who actually head the Justice Department being private lawyers for you, that is erasing this, you know, mirage of impartiality Partiality towards the president.

Hannah McCarthy: I appreciate that this idea of it being a mirage. Right. I feel like we often talk about the fact that like, sure, it seems like things are all just fine, but you know, that there's stuff going on underneath the surface and it's like, yeah, but but there's a degree to which it is important that everyone even pretends right. Like I come back to this idea of like the Constitution and democracy. Those are just ideas. Like, if you don't look like you're doing it, if you don't do it, you know, if you're not faking it till you make it, then you're never going to make it. Like the appearance is important to a degree.

Nick Capodice: It's also these are these are Senate confirmed positions.

Christina Phillips: Yeah. I'm so glad you said that because different from the White House counsel, these are all positions that have to be confirmed by the Senate. Some of these confirmation hearings are still ongoing, of course, but so far, the Senate has confirmed anyone that Trump has put up for these positions. So it's not just that the president is appointing these political allies and former personal attorneys. The Senate is saying, yeah, that's fine. We want these people to run our Justice Department. And since we've now established that, let's actually talk about a couple of these people real fast. So we're taping this on Wednesday, February 12th. I interviewed Nancy in mid January. So you may hear her refer to a couple of people who are up for confirmation who have now since been confirmed. And I want to start with the acting deputy attorney general. That's Emil Beauvais. So he has been in office while the Senate is doing confirmation hearings for the future deputy attorney general. That's Todd Blanche, but it's understood that Emil Beauvais will stay in some sort of high position in the Justice Department after that confirmation. And then there's D John Sauer. He's the nominee for solicitor general, and both worked for Donald Trump's personal defense team in federal cases brought by the Justice Department involving classified documents and alleged election obstruction. And Sauer also represented President Trump in court for his presidential immunity case. He's the one who, after the judge asked him if the president could order the assassination of a political rival, he said that a president could only be charged with federal crimes after they've been impeached and convicted by Congress. That was his answer to that. So here's what Nancy had to say about these two people.

Nancy Kassop: Those two lawyers and others in their legal filings. In some of the Trump legal cases that have gone through the federal courts have used language that is very rhetorically charged. And they've even been reprimanded by the federal judges reading their legal briefs or listening to their legal arguments and saying, you know, you're not making a legal case, you're making a political case. The lawyers in their legal briefs that are, you know, official documents filed with the courts are saying this is simply a political witch hunt against Donald Trump because his political enemies want to try to, make life as difficult for him as possible. Something like that. That's a political argument, and in fact, it actually makes the brief lose credibility to, you know, the judge is not going to think kindly of that. They're not helping their client, let's put it that way. The legal argument would be that the president has this authority from the Constitution. The president is the commander in chief. The president has certain legal powers that he can exercise.

Christina Phillips: Here are a few things that Emil Bové has done since he's been in the position. He's forced out a bunch of nonpolitical employees at the Justice Department who are supposed to be helping shield Justice Department investigations from political interference. He also ordered the FBI to put together a list of names of FBI employees who investigated the January 6th riots. And again, these are employees assigned by the Justice Department to carry out their law enforcement duties under federal law. And so, part of the issue with that, according to lawsuits filed by some of these employees, is that they don't always get to choose what cases they work on. And also, there was a concern that he's requesting personal sensitive information about employees outside of secure channels. And he also ordered federal prosecutors to drop a corruption case against Mayor Eric Adams. And when the U.S. attorney general in charge of that case and five of her prosecutors resigned, they said that it was a quid pro quo where essentially, Mayor Adams agreed to help enforce Trump's immigration policies in New York City in exchange for having these charges dropped against him. We've also got Pam Bondi. She was just confirmed a few days ago to be the attorney general. She worked on Trump's legal team during the first impeachment trial, and she spread conspiracy theories about voter fraud in the 2020 election.

Hannah McCarthy: I do know the big thing that at least the media has indicated is of concern is what Trump said publicly about Pam Bondi after she was confirmed.

Nancy Kassop: She was asked those questions. Well, are you going to do what the president asked you to do when it comes to criminally prosecuting Liz Cheney or Bennie Thompson or Jack Smith, and she'll say, you know, I need to look at the facts and I will decide each case on a case by case basis. Well, that doesn't give you a whole lot of confidence. I mean, on the other hand, that's sort of the expected answer. I can't give you a hypothetical answer. Now, I need to look at the facts and make a judgment and make a determination. But those are the kinds of things that would be so unprecedented, and those would be the type of things. Would the career people put a brake on that and say, wait a minute, you can't do this. Will they be listened to? People's jobs depend on doing what the president has asked them to do. And if they push back, and if they say to the president, sorry, I'm not going to follow through on that, then they have a responsibility. Do I resign in protest? And do I resign in protest and make it public so that the public is informed of what is going on behind the scenes?

Christina Phillips: Since she's been appointed, Bondi has released at least 14 memos about how the Justice Department will run. One includes firing staff members who choose not to participate in court proceedings on behalf of the federal government or signed legal briefs. So in the past, Justice Department attorneys have had the right to recuse themselves or not sign their names on legal briefs. She's also ordered an investigation into staff who worked on federal investigations against Trump and his alleged role in trying to overturn the 2020 election. Another thing that's happened is that the White House counsel, David Warrington, released his contact policy. And in it, it said that the president, the vice president, the White House counsel and the deputy White House counsel can all speak to the Justice Department about investigations. Now, this is not too far off from Trump's contact policy in his first administration, except this one specifies that the president has the right to ask the AG's office or other Justice Department employees about criminal investigations, which is not the norm. And the AG's office has already put a White House liaison right in the Justice Department to facilitate these communications. So that strict firewall that previous presidents have really tried to establish, that does not seem to be what's happening here.

Nick Capodice: That's quite an understatement.

Hannah McCarthy: Also, we can pretty reasonably guess that Pam Bondi is not ordering these investigations just because you know her understanding of the law and her, you know, heart and her soul guide her to do so. Trump said explicitly that he would be making sure this happened. Now it is happening. So I think we can say this is on his behalf at his behest, right?

Christina Phillips: Yes. Even if these people, which, for example, Emil Bove has said he's acting on guidance from the president, but not on the orders of the president, even if that's so, they are doing things that the president has said he wants his Justice Department to do. Do you want to know who the liaison is, by the way?

Nick Capodice: Yeah. Who's the new liaison?

Christina Phillips: So the new liaison is this guy, Paul Ingrassia. He says he's a constitutional law expert, but he's most famous for pushing a fake theory that Nikki Haley wasn't eligible to run for president on Trump's social media app, Truth Social, that Trump then promoted. And his theory was basically that Nikki Haley's parents were not U.S. citizens at the time of her birth, which disqualifies her from running for president, which, frankly, I can't believe I have to say this, but I'm going to say it anyway. You must be a natural born citizen to run for president. Nikki Haley was born in South Carolina.

Hannah McCarthy: And then Trump entered office and issued a presidential action that essentially would make that conspiracy theory true.

Christina Phillips: Yes.

Hannah McCarthy: If indeed, Nikki Haley's parents were not lawful permanent residents or citizens of the United States.

Christina Phillips: Yeah, yeah. The argument was basically that her parents were not U.S. citizens at the time of her birth. That's what he said. I was thinking a lot about like, so what now? Like, where do we go from here? Especially because this does seem to be the way things are going, is that no matter what past history shows us, Trump has been appointing people into the Justice Department who are acting on his behalf politically. And we're seeing it happen. Congress, by allowing these appointments, has so far, you know, signaled that that's okay. There have been lawsuits in court. Those will continue to play out. But what does this mean as far as how the Justice Department operates? And I was thinking about career civil servants who all these people in the Justice Department who make up the majority of the Justice Department, who are working under these political appointees. And here's what Nancy had to say about that.

Nancy Kassop: For people who have been career civil servants for the last couple of decades. Many of them at the beginning of a new administration, depending on how their own. Personally, even though it may not be something that they express publicly, their own political views about the incoming administration have to decide for themselves. Is this an administration I can serve? Will I be comfortable staying in my job or not? And so there's this big question right now, particularly among executive branch lawyers. And again, they can even be Republican executive branch lawyers. It doesn't it's not always by party, because the Republican Party itself has changed dramatically over the last few decades. But the big question is do I stay or do I leave? And can I be of service to the presidency or to this administration if the administration coming in is particularly politicized? Is this something I feel comfortable doing with a sense of integrity, or would I be better off leaving?

Nick Capodice: Of all the tropes since the election, this is the one I've heard the most from guests in our episodes, which is so many people who work for all these departments and all these agencies have been there for 30, 40, 50, 60 years. They know how stuff works. They know how to get bills passed. They know how to do the right thing for the world, right for the environment or for healthcare or whatever. So every single at every single juncture in America right now that is going away. This notion of it doesn't matter how long you've been here or who you've served. All that matters now is fealty. And you're losing so much institutional knowledge when you do that. It's the people who have done stuff for so long and know how things work. They're gone. I think the thing that might be saddest is just because of the guests we talked to, is the lack of institutional memory for all of these agencies and departments. It's going to be gone.

Christina Phillips: What I was thinking about is I'm like, okay, so there is chaos in the Justice Department. There are people who are being fired, and there are people who may leave in droves. There may be this lack of institutional knowledge. Well, the Justice Department still has a has a job. It still has a responsibility to the American people. As a voter or as somebody in America, like you expect your federal government to work for you. And so I just think a lot about like, well, what happens if the federal government is not able to do those things anymore, either because it doesn't have the right people who have trained to do it, or because it's been given different directives that mean it is doing certain things at the cost of others. As people who live in this country and who are civically engaged. What do we expect the Justice Department to do for us, and how can we hold them accountable to doing those things for us because they are supposed to serve us? And I don't have an answer necessarily. Call your congressman. But like that is something we should expect the federal government to continue doing, no matter who is in the position.

Hannah McCarthy: Yeah I agree.

Christina Phillips: This episode of Civics 101 was written by me, Christina Phillips, and edited by Rebecca Lavoie, our executive producer. Rebecca is also the head of the podcast team at New Hampshire Public Radio. Special thanks to our host, Nick Capodice and Hannah McCarthy for joining me in the studio for this episode. Music in this episode from Epidemic Sound and Chris Zabriskie. Civics 101 is a production of New Hampshire Public Radio.


 
 

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This podcast is a production of New Hampshire Public Radio.

What is a Constitutional Crisis?

It's a term thrown around quite a bit lately, but what does it actually mean? This is an episode about the basics of the Law of the Land, the three branches of government and what happens when they're don't work the way they're supposed to.

Our guide is Aziz Huq, Professor of Law at the University of Chicago. His books include The Rule of Law: A Very Short Introduction, The Collapse of Constitutional Remedies  and How to Save a Constitutional Democracy

If you want some extra context for this one, check out these other episodes:

Checks and Balances

So Long, Chevron

What is "originalism"?

How Should We Govern the Algorithm?

The Fourteenth Amendment

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Transcript

Note: This transcript was AI-generated and may contain errors

Archive: Away from the American people. We've talked for a long time about approaching a constitutional crisis. We are now in it.

Archive: Revolution within a constitutional crisis.

Archive: It almost certainly would have precipitated a full blown constitutional crisis.

Archive: Thus, we have a constitutional crisis.

Archive: Yesterday's constitutional crisis, brought to you by Trump.

Archive: This is a constitutional crisis that we are in today. Let's call it what it is.

Hannah McCarthy: Hi there. Nick. How are you?

Nick Capodice: I am well. And yourself. Hannah.

Hannah McCarthy: If you are well, I am well.

Nick Capodice: Are see to salvation. Salvation. Wait, is it salvaje? Salvaje? Or is it salvaje? Salvio?

Hannah McCarthy: I think that all depends on if you're asking a professor or a priest. But anyway, you know. Nicely done. Remembering your Latin either way. Thank you. Uh, and actually, this is where I want to start today.

Nick Capodice: With Latin.

Hannah McCarthy: With this phrase, with this idea. If you are well, I am well.

Nick Capodice: Now, Hannah, correct me if I'm wrong here, but this is an episode about constitutional crises, is it not? Or are we pivoting?

Hannah McCarthy: No, no, no, we're not pivoting.

Nick Capodice: We aren't pivoting. Everyone know pivot.

Hannah McCarthy: Sit tight and I'm gonna get to that phrase. Constitutional crisis. Constitutional crises. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And for this episode, I called up someone who has been on the show before, Aziz Huq.

Aziz Huq: Yeah, I'm happy to, you know, do this kind of thing. It's it's my pleasure.

Hannah McCarthy: You may remember Aziz from our episodes on the 14th amendment and on artificial intelligence and the algorithm and law. Aziz is a professor of law at UChicago, and his books include How to Save a Constitutional Democracy and the Collapse of Constitutional Remedies.

Nick Capodice: I am always happy to have Aziz back.

Hannah McCarthy: You and me both. So I did call Aziz to talk about the phrase constitutional crisis. You know. What is it? What would one mean? Is that even a thing?

Nick Capodice: And did you get an answer?

Hannah McCarthy: In a way. But first, Nick, I want to share this. I asked Aziz after we'd talked about this phrase constitutional crisis. You know, so in light of this discussion, if people are feeling, you know, perhaps disempowered or cynical, what can they do? Does voting and participating, for example, make a difference? And Aziz said, absolutely yes of course. And then he said this.

Aziz Huq: But it's also instrumentally important. I think part of what makes us rounded, full human beings is that we care for each other and that we act on the basis of that care.

Hannah McCarthy: And this is why I am starting with if you are well, I am well, because those words I think, are not just a pleasantry. I think they are a truth. I think they are what we mean when we say common good.

Aziz Huq: I think many people are cynical about politics, clearly, and they're jaundiced about what they see on TV or what they read on Twitter or what have you.

Archive: When your political involvement is is all about watching cable television and screaming at the TV or writing on social media, it's actually incredibly disempowering to you.

Archive: Even if Americans don't agree on who to vote for. Most say they often feel exhausted just thinking about politics. Anxious.

Hannah McCarthy: Nightmarish.

Archive: Hectic. Anxiety.

Archive: Challenging.

Archive: Chaotic.

Archive: Nerve wracking. Confusing.

Archive: Anxiety. Prophetic.

Archive: Content to turn young people off to government. And if they do not embrace their role in that process, then I'm not sure what will be left with.

Aziz Huq: I would think about politics in a different way. I think politics is at the level of an individual person who's a citizen, who's just a resident of a place is. It's the way that you demonstrate care and compassion for your fellow residents and citizens, and it's a way of engaging with them respectfully and as equals by processes of persuasion and advocacy and all of the things that people do in ordinary democratic politics.

Hannah McCarthy: Today we are going to talk about the Constitution and government and politics and democracy. And I think instrumental to all of that is the agreement that the wellness of others is the wellness of oneself. In a democratic system especially, it is about the whole. It is about saying, if you are well, I am well. And that can be true even when you're not getting what you want out of this system. It is right to ensure that others are well. That is how and why any of this works.

Aziz Huq: I absolutely think that it is possible that elections have consequences and how people behave make up those consequences. What people do to mobilize, how people vote really matter. But I also think that even when it doesn't work, it's also really important. I draw an analogy to parenting. People who are parents understand that they're not able to able to prevent all the bad things that can happen to their children from happening. Stuff happens. People. Kids get hurt. Kids make bad decisions. But that doesn't change the fact for most parents that they still try and be good parents, and they still try and do the things that help their kid. And the fact that they don't have complete control over that doesn't alter it doesn't mean that they stop doing it. It doesn't mean that they stop acting out their compassion, acting out their bond. In that case, it's a familial bond with the child. So I think there's a parallel between parenting and citizenship that I think pushes one to think of the duties of citizenship, the duties of belonging to a place as not being completely dependent upon. Do I think these are going to have a material effect? I think you do things because they're the right things to do, not because you know they're going to work.

Nick Capodice: I really have to say, Aziz sure has got me there, Hannah. I mean, I know this as a parent, and I hate saying that phrase as a father, but I know this as a parent. You don't always or even often see how your parenting is actually working. But to be a parent at all means doing it every day. A hundred, a thousand little failures and you never stop. And it sounds like Aziz is saying likewise, being a citizen in this democracy means doing it every day.

Hannah McCarthy: Even if you feel like other people are not.

Aziz Huq: I think a way of thinking about that is if you read coverage of the reasons people have for voting, one of the reasons that powerfully emerges is resentment and contempt of others, and that that set of feelings, I think, has been charted probably better in journalism than it has in opinion polls, for example. Arlie Russell Hochschild has a marvelous book called Strangers in Their Own Land, which describes people who are motivated by a kind of compound of fearful resignation and anger at those who have seemingly more. And I think that there's a profound human problem, which doesn't have to do with consequences, but has to do with how do you respond as a human being when you when it's really hard to see what it is that you've done that warrants those sentiments of anger, resentment, contempt, and even hatred? I think that that human problem is best thought about by looking back at the examples of historical figures who we admire because of their of their ability to continue operating as decent human beings under conditions in which they were hated.

Archive: New tonight police arrest A man wanted for three anti-Muslim attacks in Queens.

Archive: The 23rd annual Transgender Day of Remembrance, in honor of all who have lost their lives to violence.

Archive: Police say back in September, they yelled anti LGBTQ statements at a man.

Archive: Charges of racial intimidation tonight for her outburst inside of a Montgomery.

Archive: Black Lives matter what it loud say it clear immigrants are welcome here. My body, my choice, my body.

Archive: But we're beginning to make sure we make a change that don't just last a week and last for decades, for a lifetime. So our children can be better off. I won't be.

Hannah McCarthy: Okay, so just keep that in mind as we talk about something that a lot of people perhaps are concerned about. I mean, we're talking about the word crisis, right? But what are we even saying when we say constitutional crisis?

Aziz Huq: I don't think that we can say what a constitutional crisis is, because there's no shared definition in either the law or in a social science discipline, which we might look to for an objective opinion.

Nick Capodice: So in terms of the Civics 101 of it all, we can't tell everyone what it is like. We can't define this term because people don't agree about what it is.

Hannah McCarthy: And because of the reason and the way the phrase constitutional crisis tends to crop up.

Archive: Mr. speaker, we are in a constitutional crisis.

Archive: I want you to know that the crisis is here.

Archive: And thus we have a constitutional crisis.

Aziz Huq: In daily politics, when you hear talk of a constitutional crisis. Generally, the definition at work turns upon the speaker's views about what values they prioritize in government, and therefore the definition they are using is often one that's not shared by others. Because of that, I tend to avoid the phrase constitutional crisis because I think it is more confusing than it is illuminating.

Nick Capodice: All right, so people might say this is a constitutional crisis, but what they really might mean is I see this as a threat to what I care about, or simply, I don't like this, you know, and you're throwing Constitution, the law of the land, the latticework undergirding democracy right up next to the word crisis. So basically you're saying everybody, we've got a democracy emergency, but what are we actually talking about here?

Hannah McCarthy: Well, I think that maybe we should avoid even using the word emergency, because what does that mean? Aziz tended to say breakdown and strain. And he started me off with what the Constitution is ostensibly for, whether people are using it that way and what it means if they're not.

Aziz Huq: I think I would distinguish between a couple of different ways in which you could have substantial breakdowns in constitutional law. Understood in some sense. Here are two ways of thinking about that, that I think are salient now. So the first is you might think that the purpose of the Constitution is not just to create a number of offices or roles that are filled at the level of the nation, and that carry out the work of government. It's also to impose constraints upon how those roles can behave, and to carve out paths or lanes that they should, rather than should not be in.

Nick Capodice: Now, this I do at least think I know that the Constitution establishes the existence of government, the people in charge, and also puts guardrails on that government.

Hannah McCarthy: Great. So those are two things that the Constitution is for. But if one of those things isn't happening, that could be a breakdown.

Aziz Huq: One way of thinking about a situation of substantial constitutional strain is to say, well, many of the mechanisms that kept those actors who were given power through or by the Constitution. All or most of the mechanisms that cap them in their lanes are breaking down. And although the creative part of the Constitution, the bit of the constitution that elevates people to offices of public power and influence is working the constraining part of the Constitution, the element that imposes breaks and channels those people isn't in good working order. So that's one way of thinking about it.

Nick Capodice: So this makes me think of separation of powers and checks and balances. I feel like that's a pretty well known government guardrail. One branch might really want to do something, but the other branch checks it maybe has to approve it or is allowed to say no to it.

Hannah McCarthy: Yeah, we know the framers were worried about tyranny. They were worried about too much power being in one person or one group of group of people's hands. So they split it up and they added some rules for keeping it that way. Because. Because, Nick, this whole system is supposed to be about the group, the whole people having a say in their governance, people governing themselves.

Aziz Huq: Another way of thinking about it is to say, well, one of the important and central goals of the Constitution is self-government. It's to fashion a set of offices that are not just responsible for doing the thing that's beneficial to the nation today, but that are capable over time of being responsive, not just to the voters of today, but to the voters of tomorrow and to the voters of the day after that. You can think of that as democracy, as a going concern and another form of substantial constitutional strain occurs if their possibility of democracy as a going concern starts to recede meaningfully from sight starts to become a theory, but not actually a practice. And we know from looking around the world that other countries experience of what's come to be called democratic backsliding, that that kind of recession into the twilight of democratic possibility is a real, uh, a real thing that happens even in the absence of elections being called off or some kind of very clear signal of democracy ending. I think that's a different kind of constitutional failure.

Nick Capodice: All right. So we've got these two principles, the guardrails that ensure democracy and people prioritizing Self-Governance, prioritizing democracy. And if either of those things gets weak or is strained, either because people give them up or because people find ways around them, then we're not doing democracy anymore.

Hannah McCarthy: And by the way, there are people, as Aziz pointed out to me, who do not believe that the point of the Constitution was to create democracy. So those people might say, well, democracy receding is not a constitutional strain.

Nick Capodice: Yeah. And I want to avoid the rhetorical exercise here of we're a republic, not a democracy. We have a whole episode on that, if anyone is interested. But you and I, at least we pretty much operate on the assumption that the point of the Constitution was to create democracy.

Hannah McCarthy: I guess you could call that a Civics 101 philosophy. But I think it's also one that a lot of people agree on. A lot of people think.

Nick Capodice: Yeah. And real quick, Hannah, it is possible, right, that when someone says this is a constitutional crisis, they actually do mean the guardrails are breaking down or democracy is backsliding.

Hannah McCarthy: It definitely is possible.

Nick Capodice: All right. So now I've got to know where the courts come in. Like if I think about people avoiding government guardrails, for example, isn't that when the federal courts are supposed to jump in and say, you cannot do that, we say the Constitution says so, or I guess you can do that. We say the Constitution says so, right?

Hannah McCarthy: Okay. The courts. So you're describing what happens when someone thinks someone else is breaking a federal law or violating the Constitution. They go to the federal courts and they ask a judge to say something about it. And that judge either agrees that it's a violation or says that it isn't. If they say it is, it means the violation has to stop.

Nick Capodice: And then, of course, that sometimes gets appealed all the way up to the Supreme Court. And the Supreme Court decides what the Constitution really has to say about this.

Hannah McCarthy: So thinking about the breakdown of guardrails, I basically asked Aziz, okay, so what if that guardrail breaks down? What if the federal courts what if the Supreme Court says this is the way it has to be? And the person they're talking to says, nope.

Nick Capodice: As in, what if someone ignores what a judge or a justice says?

Hannah McCarthy: Right.

Aziz Huq: Probably the best example of government officials not complying with a instruction from the Supreme Court is what happened in the wake of Brown v Board of Education. Brown in 1954 declares that separate but equal in education is a violation of the 14th Amendment's Equal Protection Clause. For roughly a decade after, Brown has decided there is no meaningful change in the level of school segregation outside of a couple of what are known as the border states, places like Maryland. The reason for that absence of change is the officials responsible for managing schools at the local and the municipal level, and to some extent at the state level, successfully resisted the instruction in Brown.

Nick Capodice: Oh, of course. And I know this is super complicated, Hannah. And schools today are still wildly segregated, if not by law, than by policies at the state and local level, and everything from district boundaries to school choice to income inequality to a lack of a court overseeing things. And it took something like 50 or 60 years before the last school district was formally desegregated in 2016.

Aziz Huq: One of the lessons that one might take from that is the answer to the question of what happens when officials defy the court is that the court loses. The court is not in a position to buck certain kinds of coordinated resistance by governmental actors.

Nick Capodice: The court loses. Like that's the answer. Is that allowed?

Hannah McCarthy: Well, it's not supposed to happen, but it can. It has, and it is a really big deal. Remember, this system is about guardrails and about agreeing on democracy, agreeing to abide by it and keep the project up. This is all just a theory written down on paper. If we don't do it, then we don't do it.

Nick Capodice: Okay. Did Aziz say anything about the federal courts today? If we're thinking about upholding the Constitution, how all these branches work together or not? How is that branch working right now?

Hannah McCarthy: We're going to get to that after a quick break. But before that break, just a little reminder that Nick and I wrote a book. We really love it. We hope you will too. It is called A User's Guide to Democracy How America Works. I think it's pretty useful. You can find it wherever books are sold. We're back. We're talking about the idea of the Constitution being strained. And Nick, before the break, you asked if Aziz Huq, a UChicago professor of law who has written a lot about the Constitution, had anything to say about the federal courts today? He sure did.

 Aziz Huq: I don't think we're in a world in which that characterizes the challenge to constitutional stability practice today. I think we're in a world in which it's much more likely that particularly the justices of the Supreme Court take their cues for their rulings not from text, not from original understanding, not from precedent, not from constitutional principle, but from what their ideological fellow travelers think.

 Nick Capodice: Okay, let me make sure I understand this, Hannah. We're talking about the courts today. Specifically the Supreme Court and the way the Roberts Court interprets the Constitution and hands down rulings based on the Ocean, all part of the project of upholding the guardrails, upholding the law of the land. So what does it mean to base rulings on what your, quote, ideological fellow travelers, unquote, think instead of, you know, text, precedent, principle, etc.?

 Hannah McCarthy: So here's the example he gave.

 Aziz Huq: A really good example of this is the attack on administrative agencies that culminated this last year. The core of that attack was an attack on the idea that when a federal administrative agency does something, when it interprets the law, it gets a lot of deference from the federal courts. And this was really a non-issue among any of the justices until about 2015.

 Nick Capodice: Oh, this is Chevron, right.

 Hannah McCarthy: The Chevron deference. Yeah. The court did away with that in a case called Loper Bright, which I made an episode about and warmly recommend you listen to if you want a better sense of what Aziz is referencing here. But essentially, for a long, long time, experts in administrative agencies could interpret a statute and the courts would generally say, you know, okay, we defer to you. You're the expert.

 Aziz Huq: And in 2015, a couple of the justices start saying, well, hey, we shouldn't do this. We should we should police what agencies are doing. Well, what changes in 2015? The only thing that changes in 2015 is that in the course of the Obama administration, the RNC platform is changed to include we shouldn't give deference to agencies and lawyers associated with the Republican Party and that movement start making arguments in that register.

 Nick Capodice: So the Republican National Committee came up with this idea, and then they got it into the legal system. They put the question out there. I mean, that is how cases get before the Supreme Court. People actively try their best to put them there, often after years of planning.

 Hannah McCarthy: Absolutely. That is often how it works. But I think the reason Aziz brought this up is that, for one, this was, as he put it, a non-issue in the court until it became a part of a party platform. And for another, the actual reasoning, the logic of the majority opinion is borrowed from the arguments that those lawyers were making the lawyers associated with the Republican Party.

 Aziz Huq: Those arguments very, very quickly filter into judicial opinions. I think you can say the same thing about affirmative action. I think you can say the same thing about the way that the religion clauses of the Constitution are understood. I think you can say the same thing about the court's ruling on presidential immunity last year. There are many instances in which even the grounds upon which the Roberts Court majority usually justifies itself. Its originalist grounds do no explanatory work. They're not even in the opinions, and the basis for the opinions can really only be understood in terms of changes in the legal culture, but changes in a very particular code. Partisan corner of the legal culture.

 Nick Capodice: Okay. So a majority of the Roberts court justices identify as originalists. And we also have an episode about that which listeners might find helpful right now. And Aziz is saying that in many cases, even their originalism or what they're calling originalism, which is supposed to be about the text of the Constitution, does not explain their reasoning.

 Hannah McCarthy: Yeah. Later on in an email, Aziz explained to me that he thinks, quote, it is hard to explain any rulings by the Roberts court on the basis of standard legal sources text history, precedent. He also said that he thinks, quote, that it is hard to explain those rulings without seeing an effect of political affiliations.

 Nick Capodice: And Aziz, in case anybody out there missed it, is someone who knows the Constitution, text history and precedent really well.

 Hannah McCarthy: Really well. So if Aziz finds it hard to explain these rulings without taking politics into account, it seems likely that politics are being taken into account in these rulings.

 Nick Capodice: So if the majority of the Roberts court is basing its rulings on that Partisan corner, as disease puts it, what does that mean for the judicial guardrail? They're supposed to be independent. The whole reason justices are allowed to serve for life is to protect them from political pressures, so that they can keep the other branches in check.

 Aziz Huq: So I just don't think we're in a world in which the courts Are likely, except for edge cases, to offer much by way of resistance to what's happening in the executive branch or perhaps in Congress.

 Hannah McCarthy: And look, Nick, I know you know that a Supreme Court of nine perfect angels who cannot possibly be remotely influenced by politics in any way is a pretty tall order. But we are talking about a court that particularly stands out for what appears to be Partizan reasoning and rulings. So I asked Aziz, you know, is this a new thing? Have we ever seen the Supreme Court behave this way before?

 Aziz Huq: I think that the best analogy is to the court in the 1870s and 1880s, where around the election of 1876, the national political culture, both on the Democrat and the Republican side, take a hard shift away from the idea that racial reconstruction in the South is is is worth the pennies being spent on it, and in particular, in the wake of a number of economic crises that occur in the 1870s and early 1880s, there is a dramatic shift toward building up a national economy and deepening what is then an emerging industrial state. The Supreme Court in this period moves roughly in lockstep with those national that change in national sentiment and interprets the what were then recently enacted reconstruction amendments the 13th, the 14th and the 15th amendment in ways that dilute or rob them of much of their practical force.

 Nick Capodice: Okay. The Supreme Court looks at these new parts of the Constitution, and it looks at what politicians in the US think and want, which is often what voters think and want, and it picks what they want over what the law of the land says.

 Aziz Huq: So for the court in the 1870s and early 80s is moving roughly, not entirely always precisely in lock step, but roughly in lockstep with a changing national sentiment and throwing the formerly enslaved and their families subject to the system of Jim Crow under the bus. I think that there's a parallel between then and now, the parallel. It's all historical parallels, is imperfect, but it is worth noting that one of the effects of that shift is that whereas in the late 1860s and early 1870s. There were a substantial number of African American representatives in state legislatures and local elected offices across the South. There were two black senators in D.C. there were a number of black members of Congress. Essentially, all of that black representation is eliminated by about 1895. And you don't see, for example, black senators for another 60 years in DC. So the court's decision to move away from the project of the Reconstruction Amendments was maybe it was it would never have worked in the absence of national political support. But by moving with that shift in national political support, it's, I think, fairly uncontroversial now to say that the court just gave up on this slice of the Constitution For 60 or 70 years, and that part of the Constitution was a dead letter for. Let's put this concretely, at least three generations of people living in the South.

 Nick Capodice: So that's what can happen when the Supreme Court picks political whims over the Constitution. Whole groups of people don't get to have the Constitution or parts of it. Okay. Hannah. Thinking about the laws and whether they actually happen or don't happen, I know the court can, quote unquote, lose when government officials defy it, but that's where the executive branch comes in. The court relies on it to enforce the law.

 Hannah McCarthy: Right. The branch with enforcement power. We will talk about the executive branch and its role in all of this. After a quick break. We're back. And before the break, Nick, you asked me about enforcement power. The court declares something unconstitutional or unconstitutional, legal or not. So what is the role of the executive branch when it comes to enforcing the law?

 Aziz Huq: I think the constitutional law is of two minds on this topic. And the two minds are not completely reconcilable. On the one hand, the text of the Constitution directs that the president shall take care that the laws be enforced. This imposes by all originalist and precedential accounts a weighty obligation on both the president and subordinates to enforce the law in the ways that they are written. On the other hand, the Supreme Court, in a number of cases, and the executive branch at every opportunity they have, underscores the idea of their discretion as to whether and when to enforce the law and when it comes to the discretion of prosecutors and enforcers. The Supreme Court has indulged in every leeway or possible form of permission it can grant when it comes to the power to issue new regulation. The court has withheld every grace, every leeway that it's possible to grant. So the the legal materials on this question point in all sorts of different directions, and I think fairly rare, rather betray the fact that the court does not read the Constitution, does not read statutes so as to require the executive to take seriously its obligations under the law. It selectively gives the executive free rein, particularly when it comes to enforcing. And particularly when it comes to using coercion and ties, the executive hands when it comes to shielding and protecting people, especially through regulation.

 Nick Capodice: It selectively gives free rein. What does that mean?

 Aziz Huq: I think if you put those two things together, I think what you get is, is a little bit different from what particularly? Well, actually what people on either the right or the left stereotypically say that the right stereotypically says we want we want a small state. The left says we want a larger, more Interventionist state. And what you see the court doing is building a state that is incapable of helping people, but profoundly capable of hurting them. I think the court gives every opportunity for the government as prosecutor to decide or not decide which cases to bring to dial up or down the intensity of the criminal law in particular, but also other other kinds of law which involve coercive enforcement. On the other hand, when the when the government is acting as a regulator, exactly the same court says, no, no, no, we don't trust the government. We are really worried about discretion. Well hold on. Why is it that you trust the government when it acts as a prosecutor, but you don't trust the government when it acts as a regulator? There is no logical, coherent legal response to that.

 Nick Capodice: So if there's no logical or legal response, how do we answer that Answer that question.

 Aziz Huq: There is a coherent, logical political response to that which is we, the court, want a particular kind of state, a state that is strong in some ways and a state that is weak or even handicapped in other ways. That is a political project, not a constitutional one. It's not even one that the court explicitly embraces, but it's one that's evident across the patterning of the cases.

 Nick Capodice: All right. I'm just full of questions today, Hannah. I hear all of this, and I want to kind of bring it back to the theme, so to speak, of this episode. We are talking about straining the Constitution, and we're also talking about the people who are supposed to be upholding the Constitution. So if you are someone who wants the Constitution to be the law of the land, for the people, of the land, for all the people, is there a way to basically make sure the justices are following it, are using it?

 Aziz Huq: I think that there are two ways of thinking about the process of constitutional change and the role of the court. I think one is, well, what's actually likely to happen. And the second is, well, what could holding constant the likelihoods in the world, what could happen or what could be done? I do think that we are not in a world in which anything other than cycling over membership in the court is likely to affect the direction the court moves in in the near future, at least in a world in which those political constraints are bracketed. If you imagine that world, I think there's other things that can be done. My own view is that in for much of American history, up until about the 1890s, there were substantial constraints upon the kinds of cases that the Supreme Court could hear that were imposed, not by the court itself, saying, here are these cases. We don't like hearing them, for example, with respect to pass and Partizan gerrymandering, but that were imposed by Congress. And you can imagine a world in which Congress reengaged and channeled the work of the court and imposed legislative restrictions upon it in ways that were meaningful.

 Nick Capodice: That's interesting, because I sometimes forget that Congress is allowed to regulate the Supreme Court to a degree.

 Hannah McCarthy: Yeah, Congress can limit what is called appellate jurisdiction. Basically, that is the ability to review the decision of lower courts. Most of the cases that the Supreme Court hears are within appellate jurisdiction. Congress can also pass a constitutional amendment, which, of course, would have to be ratified by three quarters of the states.

 Aziz Huq: There's also a world in which the Constitution could be amended. And, for example, term limits can be imposed upon the justices. New kinds of constraints upon judicial behavior or action could be added. My own personal view is that the design of the Constitution, which channels appointments through the elected branches, through the presidency, which is subject to the Electoral College and through the Senate, which is wildly malapportioned in relation to population, were mistakes. And that if you look at more recently drafted constitutions in many parts of the world, there are a variety of other appointment mechanisms that successfully insulate to much greater degrees, judges from politics. And we'd be far better off with one of those appointment mechanisms, because we'd have much less politicized courts and much less politicized jurisprudence. Again, that's that's a nice idea, but I'm under no illusions that that kind of proposal is even, even incrementally plausible under current conditions.

 Hannah McCarthy: All right. Nick, I need to take a beat here And share with you that this episode, despite being about constitutional crisis or strain or breakdown, is one that, maybe more than anything, made me think about the saucer that cools the tea.

 Nick Capodice: Oh. That one. That perhaps apocryphal thing that George Washington said.

 Hannah McCarthy: Yeah, that supposedly he watched Thomas Jefferson pour his tea into his saucer, and George was like, what are you doing, dude? And Jefferson was like, I'm cooling this hot tea. And Washington said, we pour our legislation into the senatorial saucer to cool it.

 Nick Capodice: Now, I remember this very well, Hannah, but how on earth did this episode make you think of that?

 Hannah McCarthy: Well, because this is some potentially hot stuff, or at least that's kind of how I was thinking of it. And when I gestured to that, you know, when Aziz shared His whole point about citizenship that we talked about earlier. I was really moved by that. I said, basically, you know, some people might feel like they need some light in the darkness right now. And he said this.

 Aziz Huq: Yeah, yeah. I will say, I think that the extent of the darkness is largely a product of flagellation by people in the media who are taking a sense of their own feelings and projecting it out, and we're creating a kind of vicious circle.

 Archive: Many Americans are nervous about rising costs and what it signals about our nation's economy.

 Archive: So today, I asked press secretary Jen Psaki to explain this winter of discontent.

 Archive: At the end of one tough year and at the beginning of another. There's a worry that none of it will bring America what it truly needs.

 Archive: It has been a turbulent year in politics around the world, but perhaps nowhere more than in the United States.

 Archive: We know exactly what we're going to be spending the next days and weeks and likely years of our life working on.

 Aziz Huq: I don't mean to view things through rose tinted lenses, but I do think it's important to recognize that there are cycles of emotion in the media, and that includes the NPR level of the media as much as any other level of the media. So I discount a little bit that I think it's worth just taking a breath before taking that that too seriously.

 Nick Capodice: Yeah. You wrote about this in our newsletter, and you've also maybe mentioned it 6 or 7 times to me this week.

 Hannah McCarthy: I have been thinking about it constantly, especially in an episode that talks about things that could perhaps make people anxious. I think Aziz plays the saucer that cools the tea in the way that he explains it all. You know, he's careful, he doesn't exaggerate. And what opinions he does share. He bases them on his extensive reading and research and academic and legal work terms like constitutional crisis, which don't even have a clear definition, which are pretty likely to be a reflection of their users emotional state. Those terms have the potential. I mean, they might even be designed to ramp up other people's emotions. So when we, you and me, Nick, talk about this kind of thing, I think we've got to ask ourselves, are we playing the saucer that cools the tea?

 Nick Capodice: I honestly don't know, Hannah. Like, are we supposed to be?

 Hannah McCarthy: Well, okay, so we tell people that this show is here to explain how everything thing works to be a resource, to help people right, to perhaps do what we can to make sure that they are well, at least when it comes to having a sound understanding of the government as it is, as it was supposed to be, as it could be, if our listeners are well, if our citizenry is well and equipped to do their civic duty, then I think we are well, Nick, we are doing what's right. So I say yes, as journalists whose voices are in many people's ears, we absolutely should be the saucer that cools the tea. We have to try our very best to be.

 Nick Capodice: Well, if that's true, Hannah, what do you have to say about this whole episode? How are you gonna cool that tea?

 Hannah McCarthy: I think I'll say this is all a really, really long game. Aziz said that we can think about democracy as a going concern, as a thing that is about many years, many generations of people doing what is right today so that tomorrow, next year, a decade from now, other people still have a system that gives them self-governance. And I think this idea about doing what's right and kind and civic is part of that. You might not be getting something out of it. Do it anyway.

 Nick Capodice: You know, this reminds me. I was talking to one of my friends the other day. She's a city council member. She said, you've got to avoid two things apathy and urgency. Don't lose your concern, but don't rush at it either.

 Hannah McCarthy: Take it seriously, but don't get caught up in your anxiety. Yeah. You know, maybe if someone cries constitutional crisis, for example, it helps to take a breath. Even if there is a crisis, take a breath. Go out there and be kind and vote and talk to people and keep democracy real. One of the things that strains democracy, one of the things that breaks it down, is that people stop agreeing to do it. They stop upholding it. And you can be one less person being a strain on the system.

 Nick Capodice: And one more person making sure we are well.

 Hannah McCarthy: This episode was produced by me. Hannah McCarthy with Nick Capodice Cristina Phillips is our senior producer. Rebecca Lavoi is our executive producer. Music in this episode by Mind Server Unlimited, Spring Gang, Dharma Beats, Andreas Dahlback, Matt Large, Hitomi, tsunami, ikebana, peerless, Ramiro, James, LFO, Jonah and Adeline. You can find the episodes that we referenced in this episode, as well as everything we have ever done at Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

 


 

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What are Executive Orders?

Every president (with the exception of William Henry Harrison)  has issued executive orders. Most recently, Donald Trump issued several on his first day in office. Some have been published in the Federal Register, others are facing legal challenges.

So what IS an executive order? How do they differ from other executive actions, like proclamations or memoranda? Who writes them? Who reviews them? All that and more with our guest Andy Rudalevige,  professor of Government at Bowdoin and author of By Executive Order: Bureaucratic Management and the Limits of Presidential Power.

Click here for our episode on the Federal Register.

Here is a link to every single proclamation issued by a president.

Transcript

Note: this transcript is AI-generated and may contain errors

Nick Capodice: I want to do like a law and order intro to this with like the dun dun and all that.

Law and Order Voice: The episode you're about to hear.

Nick Capodice: But really folks, the episode you're about to hear contains information on executive orders. The guest for this episode was interviewed before President Trump's inauguration in January, and every single day since the inauguration has brought new executive actions and new lawsuits against those actions. For example, on January 28th, a two page memorandum [00:00:30] from the Office of Management and Budget ordered a freeze on all federal assistance programs, including all grants and loans. Among other things, this memo resulted in Medicaid portals being down in all 50 states. Now, a district judge in Washington, D.C. blocked the freeze later that afternoon. So it is temporarily halted until a hearing on Monday. The day before this episode comes out. So what this preamble here is trying to say is that [00:01:00] regardless of whether a branch of government complies with the rule of law or not, we at Civics 101 talk about the law and about the supreme law of the land, the Constitution. Yes, we make a lot of airbud jokes, but in the end, we refuse to say that laws and rules don't matter. Not because we wouldn't have a show and we wouldn't, but because we wouldn't have a democratic republic. Okay, here's executive orders.

Archival: Because you can [00:01:30] do an executive order, right? Well, you could do I want to I want to not use too many executive orders, folks. Because, you know, executive orders sort of came about more recently. Nobody ever heard of an executive order.

Archival: This first executive order that we are signing.

Archival: Today, I'm announcing two actions to respond to the demand of the American people for honesty in government.

Archival: Truman signs the proclamation putting the Atlantic Charter into effect.

Archival: Earlier today, I issued an executive order to strengthen our nation's commitment [00:02:00] to research on pluripotent stem cells, which.

Archival: We can authorize by executive action without a new act of Congress. Okay.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about executive orders, what they say, what they do and what they can't say or do.

Hannah McCarthy: And we did just do an episode on President Donald Trump's orders from his first week back in office. You can listen to that before this episode, if you [00:02:30] like.

Nick Capodice: Or after, because then you'll know what they are.

Hannah McCarthy: Good point. All right. So let's get into it. What are executive orders?

Andy Rudalevige: So an executive order is simply an order by the president to the executive branch.

Nick Capodice: This is Andy Rudalevige. He's a professor of government at Bowdoin College, and he's the author of By Executive Order Bureaucratic Management and the Limits of Presidential Power.

Andy Rudalevige: It is a formal directive. Uh, it's different than other directives in that it is [00:03:00] required by law to be published in the Federal Register, but in general, it's one of a group of presidential tools to tell people within the executive branch what he wants them to do.

Nick Capodice: So first off, the executive orders don't require Congress. So they're a way that a president can push through laws that Congress might not be able to pass themselves. Relative to this is that the 118th Congress had the least productive session in modern history [00:03:30] from 2023 to 2025, passing fewer than 150 bills. Now, executive orders, on the other hand, have the force of law without the need for legislation, though there are a lot of restrictions which we're going to get into. But first, to get some stuff clear from the get go, executive orders are just one kind of executive action, right?

Hannah McCarthy: What are the other ones?

Nick Capodice: Well, for today's purposes, I want to talk about memoranda and also proclamations. We'll break down each of those in order. [00:04:00] And this is important because and it's not anybody's fault. These get mixed up all the time.

Andy Rudalevige: But executive action covers the whole gamut, including, by the way, appointments, pardons, anything really that Congress doesn't need to be involved in. But I think often too, though, if you read a news article, there's a lot of confusion about what is an executive order versus something else. A lot of things and even presidents will do this. They'll say, I issued an executive order to do a there is no executive order. It was maybe [00:04:30] a memorandum, or maybe it wasn't even that. Uh, and if you were to Google, uh, DACA, Deferred Action for Childhood Arrivals, right. A very famous executive action by President Obama. Uh, it was not an executive order, but if you Google it, that's what's going to come up. This executive order by President Obama, you know, millions of hits on that phrase. And that's just wrong, understandably wrong. Uh, but mistaken.

Archival: President Obama is in Nevada today after making his new immigration policy official. He signed two executive orders as he flew west [00:05:00] on Friday. Julianna Goldman is in our Washington bureau.

Andy Rudalevige: Interestingly, sometimes presidents take advantage of the confusion. Obama was being accused back in, say, 2014 of being, you know, a dictatorial. He was issuing way too many executive orders, and he actually put out a chart and said, no, I've issued very few executive orders. And it turned out that a lot of what his executive actions had been were either memoranda or, you know, as in the case of DACA, it was actually a departmental directive. [00:05:30]

Hannah McCarthy: All right. Caveat taken. Can we start with proclamation?

Nick Capodice: All right.

Nick Capodice: Proclamations. Quick note here. Proclamations and executive orders are published in something called the Federal Register. The Federal Register is a daily publication. It's printed in D.C.. We did an episode on it a very long time ago. Link in the show notes. So the Federal Register isn't just a thing that people who live in D.C. look at every morning to see, hey, what's going on in the government when an order is [00:06:00] published in it? This is an indication to an agency that this is the new law. This is the new official way things go. So the freeze on federal funds that I mentioned at the top of the episode, that was not published in the Federal Register, and some critics of the freeze have pointed out that the team of lawyers who work at the Federal Register would have addressed that it was an illegal impoundment. All that said, the Federal Register is fun to read. It's fascinating, and you can read it for yourself [00:06:30] for free at Federal Register. Gov. The more you know. Anyways. Proclamations.

Andy Rudalevige: A proclamation is literally to proclaim to the wider public what the president is going to do and sort of the state of the world often. Um, whereas the executive order, as I say, is to the executive branch, that doesn't mean that it doesn't have a wider impact than on the behavior of Of bureaucrats, but that is the, you know, specific audience for a given order. [00:07:00]

Hannah McCarthy: Our proclamations, usually just for lack of a better term, window dressing. You know, naming holidays and monuments and stuff like that.

Nick Capodice: Yeah, a lot of them are. Hannah, there have been over 9000 presidential proclamations. Also, I have a link to an archive of every single one of those in the show. Notes for you lovers of ephemera out there. And yes, most of them are, you know, President Carter declaring National Family Week or President Reagan proclaiming National [00:07:30] Dairy Goat Awareness Week.

Hannah McCarthy: Well that happened.

Nick Capodice: It certainly did. Oh, how that did happen, Hannah. Proclamation 5834. By the way, can I read you a paragraph from it?

Hannah McCarthy: I would love it.

Nick Capodice: Today, among the contributions of dairy goat farming to our nation's economy is an impressive array of dairy products. The interest of both domestic and foreign consumers in U.S. domestic goat cheeses or chevre continues to increase, as does awareness of all dairy goat products. [00:08:00] These trends deserve every encouragement.

Hannah McCarthy: I love that Reagan is giving everyone a little French lesson there, right? Just in case you didn't know, goat cheese is also called chevre.

Nick Capodice: You did that funny.

Nick Capodice: That said, I have to pivot here and say that not all proclamations are ceremonial in nature. There are a lot that have serious, immediate impact. President Donald Trump has issued five already in this new administration. There is one ordering flags [00:08:30] to be flown at full mast on Inauguration Day, for example. But in a more consequential vein, declaring a national emergency at the southern border and granting pardons to the January 6th insurrectionists. Those were both proclamations, and I'm sure we'll be hearing about them both for some time.

Hannah McCarthy: All right, moving on. What are memoranda? How is a memorandum different from an from an executive order.

Andy Rudalevige: An executive order is telling, using the president's authority to tell agencies to do something. [00:09:00] Whereas technically a memorandum is the president telling the agencies to use their own authority to do something.

Hannah McCarthy: So memoranda are the president saying, I maybe don't have the power to do this thing, but you do. So you take care of it for me.

Nick Capodice: Yeah. Memoranda do not have to be published in the Federal Register, by the way. So often the president just wants an end result. Right. But the intricacies of how all the other departments work, they're complicated [00:09:30] and nuanced, and the president can't dictate how it's going to happen. Exactly. But they're asking just to get something done.

Hannah McCarthy: Do you have an example?

Nick Capodice: I do. Trump has issued 15 memoranda so far. One of them is the memorandum on promoting beautiful Federal Civic Architecture. And in this memorandum, he is directing myriad other agencies to submit proposals to him to ensure that federal buildings, quote, should be visually identifiable as civic buildings [00:10:00] and respect regional, traditional and classical architectural heritage. End quote. Or we have the recent memorandum on return to in-person work. This is telling other agencies to terminate all remote work.

Hannah McCarthy: Just want to run all these back before we get into executive orders. Specifically, proclamations tell the American people and the world in general. I, the president, am going to do X, Y, and Z. And then the proclamations are published in the Federal Register, and memoranda are [00:10:30] I, the president, am telling other agencies to do XYZ, and these are not published in the Federal Register?

Nick Capodice: Absolutely correct.

Hannah McCarthy: All right. So let's get to the big one executive orders. When did they start? Have presidents been issuing them from the beginning?

Nick Capodice: Uh, yes and no. I'm going to tell you tell you a little bit about some of the earliest ones, along with who writes them and how they happen or don't happen right after a quick break.

Hannah McCarthy: But before that break, [00:11:00] if there is a special someone in your life you think could use a primer on every gear in the governmental machine, tell them to check out our book, A User's Guide to Democracy How America Works. It's the civics class we wish that we had had in eighth grade. It sure is.

Nick Capodice: We're back. We are talking about executive orders here on Civics 101. When a president delivers policy all on their own.

Hannah McCarthy: Nick, [00:11:30] for how long have presidents issued executive orders? Do they go back far enough to justify the horse and carriage sound effect?

Law and Order Voice: Yep.

Andy Rudalevige: There are no executive orders in the definitional sense going way back to George Washington. Um, but, you know, we don't have executive order number one from 1789.

Nick Capodice: Again, Andy Rudalevige, professor of government at Bowdoin College.

Andy Rudalevige: Sometimes these are written, you know, on scrap paper. Um, there's some fun research into, uh, how sometimes [00:12:00] they're written in the margins of memos or maps.

Hannah McCarthy: Maps.

Nick Capodice: Maps.

Hannah McCarthy: What was the first one?

Nick Capodice: Well, like Andy said, they weren't numbered officially for a while. So technically, Abraham Lincoln issued Executive Order number one, establishing a provisional court in Louisiana. But every single president before him, except for William Henry Harrison, issued them. They just didn't have a number. George Washington's first one was pretty funny. In 1789, [00:12:30] he wrote a letter to the heads of every department asking them for, quote, a full, precise, and distinct general idea of the affairs of the United States.

Hannah McCarthy: It sounds a bit like our show, doesn't it?

Nick Capodice: Sure does.

Andy Rudalevige: So they were, you know, not nearly as formal as they are today. And that was part of the problem at the time. We time. We get to the 1930s and the government's expanding. Franklin Roosevelt's issuing lots of these orders. You know, people needed to keep track of them. They needed to know who had been told what. And at some point, [00:13:00] the courts get involved and and sort of lambaste the FDR administration for, you know, not knowing what the law is and what the president has actually said about the law and how to implement it.

Hannah McCarthy: I want to know a little bit about how executive orders come to be. Like a president can't just order anything at all. They have to have authority to do it, right?

Nick Capodice: They certainly do.

Andy Rudalevige: So an executive order has to be something that the president is authorized to do, either by the Constitution or by a statute. [00:13:30] And so, you know, presidents are often, you know, sort of sending their lawyers out into the law books to find them, some authority that they can use to to do things. You know, finding new meaning in old laws has become quite a pastime for recent administrations, Illustrations, in part because there are so few new laws being passed.

Speaker16: And the problem with Washington, they don't make deals. It's all gridlock. And then you have a president that signs executive orders because he can't get anything done. [00:14:00] I'll get everybody together. We'll make great deals.

Andy Rudalevige: So congressional gridlock is sort of a great opportunity for presidents to try to act in ways that they, they feel won't be reversed because Congress finds it so hard to act.

Nick Capodice: The first line of an executive order usually lays that authority out. They often start with, by the authority vested in me as president by the Constitution and the laws of the United States of America, and by blah, blah, blah in the US code, I am ordering such [00:14:30] and such.

Andy Rudalevige: And then you'll have sections, perhaps setting out some definitions. So there could be a section setting up a new advisory committee and saying who's going to be on it and what kind of report they should issue. And or it may lay out. Here are some priorities for things we want the department to look at, um, and to come up again with actions that would achieve the goal of this executive order.

Nick Capodice: And since the authority is not an option, it's a requisite. There are a lot [00:15:00] of steps taken before the order is signed.

Andy Rudalevige: They do have to go through a process of both the central clearance process with regards to the Office of Management and Budget approving the order.

Hannah McCarthy: Real quick, we just have to say what is the Office of Management and Budget?

Nick Capodice: The Office of Management and Budget is a crucial piece in the puzzle of executive orders. They're the largest office working for the president. They help create a president's budget. They make sure executive actions are in line with Congress and the law. They [00:15:30] are the ones checking every single thing that comes out of the Oval Office.

Andy Rudalevige: Also has to be signed off for what's called form and legality by the Justice Department and the Office of Legal Counsel within the Justice Department usually does that. Um, so they'll look at it and make sure that the order is actually fine in terms of how it's been composed, but also legal that the president does have the authority to act in the way that he wants to act through this order. And sometimes [00:16:00] successive justice departments will have different ideas about what is allowed or not. Daca, as we mentioned before, is a pretty good example where the Obama Justice Department said, yes, you can do this. And the Trump Justice Department said, no, you can't. And Biden said, sure, you can go back with it.

Archival: Today, President Biden unveiled a new executive action that shields approximately 500,000 immigrants from deportation. It's aimed at Americans whose spouses or children are non-citizens.

Andy Rudalevige: And then often there's a deadline [00:16:30] for action. And, you know, some kind of reference, perhaps, to older executive orders that might be being superseded or even revoked as part of this one. So they can be anything from a paragraph long to 20 pages long.

Hannah McCarthy: So Nick.

Nick Capodice: Hanna.

Hannah McCarthy: Trump signed a lot of executive orders on his first day in office. And I've read them. Some of them are long and complicated. Some of them are short and to the point. [00:17:00] Uh, some of them cite countless legal codes and pieces of legislation and other executive actions over the last 250 years. I think it's safe to say that Donald Trump did not sit down and all by himself, type all of these out.

Law and Order Voice: No.

Nick Capodice: No one person can write an executive order in our modern era.

Hannah McCarthy: So who does write them?

Andy Rudalevige: I think the, um, executive orders themselves. We think of them as totally unilateral. [00:17:30] The president just sits down at the desk, pulls out the Sharpie, and we have a piece of policy. Um, normally there is a kind of a long review process of executive orders. And, you know, they can come from really anywhere, you know, in the executive branch or for that matter, outside the executive branch. And I'm sure, you know, if you're issuing a lot of orders on day one, you know, they're coming from, you know, transition staff or think tanks or people who've sort of written them out beforehand because you don't yet have [00:18:00] full access, you know, to the agencies in the federal government.

Nick Capodice: But to your question, Hannah, who wrote these recent orders, we don't have a name. The only name on these executive orders is that of Donald Trump. We do not know which think tanks or what teams of lawyers have been drafting them in the days leading up to the inauguration. I do have to point out here, though, prior to the election, the Heritage Foundation, which is a conservative think tank, they [00:18:30] published a massive document called project 2025, the subject of a three hour episode in the future, I'm sure. This was a blueprint for how to dramatically reshape American government to suit a suit a conservative agenda.

Hannah McCarthy: Which Donald Trump at certain times has denied knowing about at all.

Archival: I have nothing to do with project 2025 that's out there. I haven't read it. I don't want to read it purposely. I'm not going to read it. This was a group of people that got together. They [00:19:00] came up with some ideas, I guess. Some good, some bad.

Nick Capodice: However, a recent in-depth analysis by time magazine found that nearly two thirds of the executive actions Trump has issued so far mirror or partially mirror proposals from the 900 page document, ranging from sweeping deregulation measures to aggressive immigration reform. End quote.

Hannah McCarthy: Okay, so right now I'm thinking about the executive order to end birthright citizenship. [00:19:30] Um, a judge has already issued a pause on that order, has declared it unconstitutional. There are a bunch of lawsuits out against it. You know what happens when there are legal challenges to an to an executive order. Do we have any other examples of that?

Nick Capodice: We certainly do. We do not know what is going to happen with that particular executive order. But Andy had an example that bore a lot of resemblance to what we're seeing now.

Andy Rudalevige: The sort of exception that proves the rule is President Trump's [00:20:00] first travel ban order, the so-called Muslim ban from early 2017. You know, it's issued, um, you know, barely a week after the administration's come into office. It had not been reviewed at all, even by the Department of Homeland Security, which would have to implement it. And it was a disaster, right? It was, you know, there were people literally in the air and, you know, uh, immigration staff on the ground waiting to receive them. And they don't know what they're supposed to do.

Archival: American Civil Liberties Union says it will help people with valid visas [00:20:30] or refugee status who have found themselves detained in transit or at U.S. airports.

Andy Rudalevige: You know, if somebody comes in with a green card, are they allowed in? If they're from one of the countries that was banned in the order? That wasn't clear. Nobody had thought of that because, again, they hadn't asked the people who actually knew how to do it. So, you know, by the time that order gets around to the Supreme Court, it's actually been revised twice. It's been revised, uh, you know, by bureaucratic input. And the third version, which is actually a proclamation, not an executive [00:21:00] order, uh, has been shifted enough that the Supreme Court says, yes, this is legal. And they move ahead with that version.

Archival: The US Supreme Court has handed victory to President Trump by partially allowing his temporary ban on travelers from six mainly Muslim majority countries to come into effect.

Hannah McCarthy: Are executive orders generally popular? Nick like, do people like them?

Nick Capodice: I don't want to get into my whole hypocrisy. Doesn't matter to anyone diatribe [00:21:30] here, but I will say that people tend to dislike them when they or their party isn't in power, and when their party is in power, they're the best thing ever.

Andy Rudalevige: Donald Trump, Interestingly, you know, 2016 said that executive orders were a terrible way to govern. It was lazy. It was bad leadership. You should do everything through Congress. Uh, President Obama was using executive orders like they were butter, I think was the phrase.

Archival: Then all of a sudden, Obama, because he couldn't get anybody to agree with him, he starts signing them [00:22:00] like they're butter. So I want to do away with executive orders for the most part.

Andy Rudalevige: Well, it turns out everybody likes butter. Uh, you know, when President Trump came in, he, of course, issued lots of orders and after 100 days in office, issued a press release saying that he was the most effective president, uh, at least since Franklin Roosevelt. Why? Because he had issued more executive orders than anybody except Franklin Roosevelt in his first hundred days.

Nick Capodice: I want to go back to the butter metaphor one last time. Butter is easy. Butter [00:22:30] smooth. But if you're a person who works in a different.

Nick Capodice: Branch.

Nick Capodice: Or office, like Congress or the courts, even if you are lockstep in line with the president's agenda. That butter could be dangerous to your own power.

Andy Rudalevige: I mean, a lot of this will come down to the Congress having the sort of institutional pride in some ways to take action when the president is stepping on their turf and war powers, immigration, [00:23:00] uh, tariffs. Right. The economy, international trade. That's specifically a congressional power under the Constitution. It's one of those areas where power has been delegated over time to the president. Doesn't mean it couldn't be taken back. Uh, and we'll see, I guess, whether Congress, even a Republican Congress is interested in, you know, taking back some of the authority that it's kind of gifted to the president over time. [00:23:30]

Speaker20: That's executive orders for today. This episode was made by me Nick Capodice with you Hannah McCarthy, thank you. Christina Phillips is our senior producer, Marina Henke our producer, and Rebecca Lavoie our Executive Producer. Music in this episode from epidemic sound, HoliznaCCO, Hanu Dixit, Broke for Free, Blue Dot Sessions, Cycle Hiccups, and the man whose music is more like a gentle brown rice oil than butter, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio. [00:24:30]


 

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This podcast is a production of New Hampshire Public Radio.

Trump's Executive Orders

During his campaign, now-President Trump promised a lot of action (much of it to happen on day one). So what did he actually do once he regained the office? A LOT. This is the first week of Trump's executive orders.

For some context, check out our episodes on:

Wong Kim Ark and Birthright Citizenship

Dred Scott

The Fourteenth Amendment

An earlier version of this episode incorrectly identified several Presidential memoranda and proclamations as executive orders.

Transcript

Note: this transcript is AI-generated and may contain errors

Hannah McCarthy: [00:00:01] Here we are. Nick.

Nick Capodice: [00:00:03] Here we are.

Hannah McCarthy: [00:00:04] You know what's pretty rare? When someone tells you they're going to do a whole bunch of major stuff, and then they actually do it.

Nick Capodice: [00:00:13] Yeah. Like how you told everyone you were going to be a big Broadway star.

Hannah McCarthy: [00:00:16] Mccarthy I'm still young ish. Nick and I practice every day. But we're not talking about me. We're talking about the leader of the free world.

Nick Capodice: [00:00:24] Ah, yes. The president. And generally, that is a role wherein it's pretty difficult to [00:00:30] get a lot done. Especially the stuff you promise people in order to get elected.

Hannah McCarthy: [00:00:35] Yeah. Especially that a while ago I made an episode about what then president elect Trump was promising to do on day one of his presidency. It was a long list. A tall order, some of which was impossible to achieve all on one's own as the president. So what did Trump actually do once he got back in that [00:01:00] office. Well, uh, he did a whole lot. Are you ready?

Nick Capodice: [00:01:07] I'm ready.

Hannah McCarthy: [00:01:09] So after being sworn in and giving his inaugural address, President Donald Trump sat down in the Oval Office and signed no fewer than 26 executive orders. As of this recording, he has signed several more. So the grand total as of the morning of Friday, January 24th, is 33.

Nick Capodice: [00:01:27] Wow.

Hannah McCarthy: [00:01:28] Yeah, it's a lot. And we're [00:01:30] going to do a full explanation of executive orders next week, including the differences between orders and proclamations or presidential memoranda. And fair warning, because there are so many items to cover in this episode, we will not be doing an analysis of many of them, even those orders that people might be really interested in or concerned about. But before we Begin. Can you just give us a quick primer [00:02:00] on what an executive order is?

Nick Capodice: [00:02:04] Absolutely, Hannah. Executive orders are, simply put, orders to the executive branch. So the executive branch is the largest group of employees in the world. That's over 4 million people. If you count the military and the president is in charge of the executive branch and they sign an order. This order is published in the Federal Register. That, by the way, is a journal of the government's rules and public notices [00:02:30] also. And I know we're going to touch on this, Hannah. A president must have the authorization to order the executive branch to do something. This authorization has to come from the Constitution itself or a statute, a law passed by Congress.

Hannah McCarthy: [00:02:46] So you're saying that the president can't just order whatever?

Nick Capodice: [00:02:49] Well, they can order whatever, you know. They can say whatever they want in an order. But for that order to be carried out, Hannah, it It needs that authorization. And by the way, orders can [00:03:00] be stopped or suspended by the courts and rendered ineffective by existing or future laws. And like we said in our episode on the executive branch a long, long time ago, executive orders are really easy for a president to do. They just happen. On the flip side, they're also the weakest way to take an action, as they are extremely easy for a following administration to undo.

Hannah McCarthy: [00:03:26] They are indeed, and I'm glad you brought that up, Nick, because this ties into [00:03:30] our very first order for today. Now I'm going to go through these promises made and kept and not kept, and I'm going to do it fast because there is a whole lot to get through. And I want you to keep a couple of things in mind as I do this. While President Trump signs them while they are his orders, he has many advisers who likely lent a hand in crafting them. Also, pay attention to the actual names of these orders. The Trump administration is sending a [00:04:00] message in addition to creating policy. A lot of these orders and the words they employ pay not so subtle service to political ideologies. All right, you ready?

Nick Capodice: [00:04:13] I am ready as I'll ever be, Hannah.

Hannah McCarthy: [00:04:15] Okay. First, Trump vowed to undo former President Biden's border policies on day one, an undo he did among a whole lot of other undos.

President Donald Trump: [00:04:25] My recent election is a mandate to completely and totally reverse [00:04:30] a horrible betrayal, and all of these many betrayals that have taken place and to give the people back their faith, their wealth, their democracy, and indeed their freedom.

Hannah McCarthy: [00:04:46] Trump called this order initial rescissions of harmful executive orders and actions. He revoked Biden orders that addressed asylum, refugees and immigration enforcement. He also revoked. And Nick, I think you should [00:05:00] take a deep breath here.

Nick Capodice: [00:05:01] All right. Hold on.

Hannah McCarthy: [00:05:04] Yeah. All right. He also revoked Biden's orders on racial sexual orientation and disability equity and inclusion, counting noncitizens in the census for the purposes of apportionment. Combating Covid 19 and supporting people and things affected by it. Preventing discrimination on gender identity and sexual orientation. Establishing ethics commitments for members of the executive branch. Protecting public health and addressing the climate crisis. [00:05:30] Protecting the federal workforce. Enabling all qualified Americans to serve in the armed forces. Eliminating private prisons. Strengthening Medicaid and the ACA. The Affordable Care Act. Improving access to voting. Clean energy and cars. The Infrastructure and Jobs Act. Affordable health care. Criminal justice. Public safety. Promoting the arts and humanities, and museum and library services. Protecting land from oil and gas. Leasing [00:06:00] safe artificial intelligence. Safety on the West Bank. Taking Cuba off the terrorist nation. List. Orders of succession for executive branch departments and. Helping people who served in AmeriCorps get jobs.

Nick Capodice: [00:06:16] Woo!

Nick Capodice: [00:06:18] Real quick, I must jump in here and say that rescinding executive orders with executive orders is very common when a new president takes office.

Hannah McCarthy: [00:06:28] Yes, that must be said. [00:06:30] And we just got to make a note of that and move on, because the president has been really busy in his first week. Are you ready for promise number two?

Nick Capodice: [00:06:38] Yep. Born ready.

Hannah McCarthy: [00:06:39] Hannah, let's go with that birthright. Trump promised to end birthright citizenship, the provision laid out in the 14th amendment that says people born in the United States are citizens of the United States. On day one, Trump issued an executive order doing just that, meaning what? He [00:07:00] focused on the part of the 14th amendment that says, quote, subject to the jurisdiction thereof. Meaning subject to United States jurisdiction. Trump's executive order says that if your mother is not lawfully in the US or is here legally but temporarily, and your father is not a citizen or lawful permanent resident, then you, regardless of being born in United States territory, are not a citizen. Trump called this one protecting the meaning and value of American citizenship. [00:07:30]

Nick Capodice: [00:07:30] Wow. Um, this could change a lot. I know you said you wanted to do this fast, Hannah, but this.

Hannah McCarthy: [00:07:39] No, no, I know, I know. We are going to follow this. We will not leave you hanging, listener. As of the recording of this episode, a federal judge had temporarily blocked this order and called it, quote, blatantly unconstitutional. This case might very well end up before the Supreme Court, and either way, we shall return. But for now, we shall move on.

Nick Capodice: [00:08:01] Uh, [00:08:00] by the way, listen to our Wong Kim Ark episode, please. And Dred Scott and 14th amendment, please.

Hannah McCarthy: [00:08:09] Yes. Do that. I will put the links in the show notes. While we are on the subject of lawful presence in the US. Are you ready for more?

Nick Capodice: [00:08:16] I don't know, Hannah. Are you?

Hannah McCarthy: [00:08:18] Trump promised he would close the southern border and declare a state of emergency there.

President Donald Trump: [00:08:23] First, I will declare a national emergency at our southern border.

Hannah McCarthy: [00:08:33] So, [00:08:30] is the border closed now? A full closure would mean a shutdown of ports of entry. And that is not what we are talking about here. But Trump did suspend the US refugee admissions program. It will be reassessed every 90 days. In another order called simply Securing Our Borders, Trump directs the government to build a wall, provide adequate personnel to deter and prevent the entry of, [00:09:00] quote unquote, illegal aliens, detain undocumented people suspected of breaking laws until they can be deported, and prosecute those who violate immigration law. That bit is also clarified in another order called Protecting the American People against invasion. And the goal, according to Trump, is to obtain, quote, complete operational control, unquote, of the borders.

Nick Capodice: [00:09:25] What does that mean, complete operational control?

Hannah McCarthy: [00:09:28] Yeah. Great question. I [00:09:30] had the same one, and I found the answer kind of in a proclamation, which is different from an executive order. You can learn all about that in our episode on executive orders about declaring a national emergency at the southern border of the United States.

Nick Capodice: [00:09:44] All right, so he did that too.

Hannah McCarthy: [00:09:47] That and another order called clarifying the military's role in protecting the territorial integrity of the United States. That one orders military personnel to be sent to the border to, quote, unquote, seal it.

Nick Capodice: [00:09:59] To seal [00:10:00] it.

Hannah McCarthy: [00:10:00] Right. Okay. Trump also signed an order directing the government to designate cartels as terrorist organizations, to expedite their removal from the US and to prevent them from exerting control over the US.

Nick Capodice: [00:10:13] Wait, this is like drug cartels.

Hannah McCarthy: [00:10:15] So this is interesting. A cartel is very basically an organization that limits business competition and creates artificial shortages to increase prices. So yeah, some cartels are involved in drugs [00:10:30] and human trafficking, but cartels are also involved in things like agriculture and tourism. They often have a hand in a lot of industry.

Nick Capodice: [00:10:39] And all these groups weren't already considered terrorists.

Hannah McCarthy: [00:10:42] Now people have actually wanted to classify Cartels as terrorist groups for a long time, but they have repeatedly decided not to.

Nick Capodice: [00:10:51] Because.

Hannah McCarthy: [00:10:52] Because in part, Mexico is our largest goods trading partner.

Nick Capodice: [00:10:57] Is it really?

Hannah McCarthy: [00:10:58] It really is. And there are a [00:11:00] ton of American businesses that have operations in Mexico.

Nick Capodice: [00:11:05] Okay, I am starting to see where this is going. Hannah.

Hannah McCarthy: [00:11:08] Right. So American businesses, Nick. They are not allowed to do business with terrorists.

Nick Capodice: [00:11:14] No, they are not.

Hannah McCarthy: [00:11:15] And technically, this comes from a federal law that makes it a federal crime to knowingly provide money, support or resources to a terrorist organization. All right. So you declare these cartels to be terrorists, then you're looking at a sticky wicket of very [00:11:30] likely having to disentangle the US from terrorist groups and potentially losing some business.

Nick Capodice: [00:11:37] Got it. So we never did it because it seemed like it would mess with trade and the economy and all that.

Hannah McCarthy: [00:11:43] But we've done it now or Trump has. Okay. Are you ready for more?

Nick Capodice: [00:11:47] I think I just need a quick break first. Hannah, like, just a moment. I appreciate all this and the way you're tearing through it, but sometimes I just need to rest my head.

Hannah McCarthy: [00:11:56] Okay. Fair enough. You can rest your noggin, and then [00:12:00] we're going to be right back to it.

Speaker3: [00:12:01] Yes, ma'am.

Hannah McCarthy: [00:12:02] Now, speaking of ma'am.

Nick Capodice: [00:12:04] No, no. Not yet. Don't do another one. By the way, everyone, if you want the context for a lot of what we're talking about today, you can find it at our website, civics101podcast.org. Now, let us all just rest our noggins for a sec. We're [00:12:30] back. You're listening to Civics 101, and today we are talking about Trump's executive actions on day one and then some. And [00:13:00] Hannah, just before the break, you mentioned the word ma'am. What about ma'am?

Hannah McCarthy: [00:13:05] Yeah. A quick recommendation for everyone to read Jessi Klein's essay on the word ma'am. But what I'm really getting at is gendered terms and ideas. And, uh, let's just hop right into the executive order titled Defending Women from Gender Ideology, Extremism and Restoring Biological Truth to the Federal Government.

President Donald Trump: [00:13:29] As of today, it [00:13:30] will henceforth be the official policy of the United States government that there are only two genders, male and female.

Hannah McCarthy: [00:13:49] So Trump implies that trans women endanger cis women, aka women assigned female at birth who identify as female, though there is no documented proof of that. However, [00:14:00] there is documented proof that trans people are assaulted at four times the rate of cis people, and scientific evidence that gender and assigned sex are not always in alignment. Plus, it should be noted that trans people have existed throughout history across cultures. Anyway, Trump says, quote, Self-assessed gender identity permits, quote, the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society [00:14:30] to regard this false claim as true, unquote.

Nick Capodice: [00:14:34] So Trump calling this a false claim, is essentially him saying that being trans is a lie.

Hannah McCarthy: [00:14:41] Essentially. So the order says that the United States will only recognize two sexes, male and female. It defines male and female as sexes established at conception. It orders the Department of Homeland Security to reflect that on government issued IDs like passports. [00:15:00] It tells the government to eliminate what Trump calls gender ideology from statements, policies, regulations, forms, communications and other messages. This order also affects prisons, discrimination and what Trump calls intimate spaces.

Nick Capodice: [00:15:16] All right. And I'm going to assume that if it affects discrimination, then we are talking about laws that include gender identity and transgender status.

Hannah McCarthy: [00:15:26] Yeah. Lawsuits are pretty sure to come. And though this order does [00:15:30] not explicitly end gender affirming care for kids, as Trump promised he would do before he was elected, it certainly could. I know this is a lot. And again, trust me, we will keep making episodes as things develop. I know this is all really important, but we have so much more. Okay, so I'm going to move on. Speaking of discrimination, let's talk ending radical and wasteful government Dei programs and referencing.

Nick Capodice: [00:15:59] Dei [00:16:00] meaning diversity, equity and inclusion.

Hannah McCarthy: [00:16:02] Correct. This order calls Dei initiatives in the federal government, quote, illegal and immoral discrimination programs and commands an end to them. There's another order that extends this beyond the government, including to airlines, law enforcement agencies and higher education institutions that receive federal funds. This is definitely a topic that we will revisit in future episodes, but for now, I just got to keep rolling.

Nick Capodice: [00:16:28] Roll on McCarthy.

Hannah McCarthy: [00:16:29] Now you [00:16:30] remember how Trump promised to restore the travel ban that he put in place last time he was in office?

Nick Capodice: [00:16:35] Yes, this is the order banning people from majority Muslim and Arab nations from entering the United States.

Hannah McCarthy: [00:16:41] Yeah. So the order called, quote, protecting the United States from foreign terrorists and other national security and public safety threats, establishes an intensive threat screening process for people who either have or apply for visas, especially if they are from regions or nations with identified security risks or [00:17:00] countries with quote unquote, deficient vetting processes, or if they, quote, unquote, bear hostile attitudes.

Nick Capodice: [00:17:07] But this isn't explicitly a travel ban.

Hannah McCarthy: [00:17:10] No, it's not put in that way. It does not look exactly the same. But civil rights groups are already saying that this could essentially amount to that and also potentially result in the deportation of foreign students who participated in things like pro-Palestinian rallies. Okay. Drill, baby. Drill. [00:17:30]

President Donald Trump: [00:17:30] We will drill, baby drill.

Hannah McCarthy: [00:17:40] So I'm gonna go ahead and lump a bunch of orders together on this one, all of which are designed to encourage natural resource extraction, and because that practice is known to contribute to environmental pollution. I'm also going to bring in Trump's claim that he would end the Green New Deal on day one.

Nick Capodice: [00:17:58] Which is, by the way, something [00:18:00] that never actually passed.

Hannah McCarthy: [00:18:01] Yeah, we don't have a Green New Deal policy.

President Donald Trump: [00:18:04] With my actions today, we will end the Green New Deal and we will revoke the electric vehicle mandate, saving our auto industry and keeping my sacred pledge to Audrey.

Hannah McCarthy: [00:18:16] Trump declared a national energy emergency. He said that energy is too expensive and there is not enough of it. Despite the fact that the US is currently the largest oil producer on the planet. So the nation's leaders can use this emergency status [00:18:30] to prioritize even more resource extraction A memorandum suspended new leases for wind farms in the Outer Continental Shelf, while an order called Unleashing American Energy calls for, quote, energy exploration and production on federal lands and waters, including on the outer continental shelf.

Nick Capodice: [00:18:48] Maybe we need an episode about the Outer continental shelf.

Hannah McCarthy: [00:18:50] In that same order ends Biden era electric vehicle goals and orders emission standards to be eliminated. Quote, where appropriate. And [00:19:00] it mandates the American people's freedom to choose their own quote, including but not limited to light bulbs, dishwashers, washing machines, gas stoves, water heaters, toilets and shower heads.

Nick Capodice: [00:19:11] Now, wait. Now, what does that mean?

Hannah McCarthy: [00:19:14] It means the end of regulatory standards that make household stuff more efficient.

Nick Capodice: [00:19:20] All right.

Hannah McCarthy: [00:19:21] Unleashing, by the way, is the word of the week at the white House, because there's another order called unleashing Alaska's extraordinary Resource potential.

Nick Capodice: [00:19:30] That's [00:19:30] a wasted opportunity to quote there will be blood, if you ask me. Hannah.

Hannah McCarthy: [00:19:34] This one is all about extracting Alaska's natural resources and making sure leases can be obtained in the state's National Wildlife Refuge. While we're on the subject of Alaska, Trump renamed Mount Denali, reverting it back to Mount McKinley. While we're on the subject of renaming, Trump renamed the Gulf of Mexico to the Gulf of America. The renaming order is called Restoring Names that Honor American Greatness. And while we're on the subject of states, [00:20:00] he ordered a water rerouting plan in California.

Nick Capodice: [00:20:04] Is this the one he tried in his first administration?

Hannah McCarthy: [00:20:06] It is exactly that. So Governor Gavin Newsom sued when Trump tried to implement his water plan, saying that it would drive certain fish populations to extinction. Biden issued different water rules when he came in. Trump called this order putting people over fish.

Nick Capodice: [00:20:22] Wow, you were not kidding with these names.

Hannah McCarthy: [00:20:24] I was not. All right, Nick, can I hit you with some quickies?

Nick Capodice: [00:20:28] Oh, yes. Please.

Hannah McCarthy: [00:20:31] Now, [00:20:30] Trump promised to, quote, return to a foreign policy that puts America's interests first.

Nick Capodice: [00:20:36] Did he do that?

Hannah McCarthy: [00:20:37] Yes. He ordered the secretary of state to put America's interests first.

Nick Capodice: [00:20:41] Ah. That's it.

Hannah McCarthy: [00:20:42] Yeah, actually, it's a really short order. He did also issue a similar one for trade. That particular one is a memorandum.

Nick Capodice: [00:20:51] All right. Is this the tariffs?

Hannah McCarthy: [00:20:52] This is the tariffs. Among other things. But this order just kicked off the. Let's explore tariffs. Era of government.

Nick Capodice: [00:20:59] All right. So he didn't just [00:21:00] issue a whole bunch of tariffs right off the bat.

Hannah McCarthy: [00:21:02] He's asking agencies to figure out if and how to do it. Trump promised to withdraw the U.S. from the Paris Agreement. That's the international treaty on climate change. He also revoked the United States international climate finance plan, and he withdrew us from the World Health Organization.

Nick Capodice: [00:21:19] Well, he did that before, didn't he?

Hannah McCarthy: [00:21:20] He did. So this time around, he undid that undoing. All right. A few executive actions deal with what Trump calls past misconduct [00:21:30] of the government. He revoked the security clearances of 50 people who once signed a letter about Hunter Biden's laptop, though at a different turn, he ordered immediate top secret clearance for others. He ordered an end to the federal combating of what he says they call misinformation and disinformation. He just calls that free speech. He ordered a review of past investigations and prosecutions by the federal government, with the goal of correcting them if he thinks they were political in nature. He [00:22:00] reinstated schedule F. You might remember that from the end of his first term. It makes it easier to fire federal workers, and the order clarifies that it will be about those who Trump believes do not faithfully implement his policies. He also instituted a performance plan to review top level officials. There's also a hiring freeze for federal civilians, a regulatory freeze until Trump's own appointees are in charge and paused foreign aid. Pending review.

Nick Capodice: [00:22:29] So, [00:22:30] Hannah, are all of these executive orders?

Hannah McCarthy: [00:22:33] Well, not all of them, as you've heard me say. Some of them are proclamations. Some of them are memoranda, which, again, we learn way more about in your episode on executive orders. Nick. But his actions include reinforcement of the death penalty for federal capital crimes. Biden had walked that back quite a bit. Broad clemency, commuted sentences and pardons for more than a thousand people accused or convicted of crimes during the January [00:23:00] 6th insurrection at the Capitol. The restoration of TikTok despite a federal law banning it, as well as the promise to make it safe. The mandate to make civic buildings beautiful, and the command that heads of executive departments make life less expensive in America.

Nick Capodice: [00:23:19] Hannah.

Hannah McCarthy: [00:23:20] Yeah.

Nick Capodice: [00:23:22] All right. I was just making sure you're still there, because suddenly the list stopped.

Hannah McCarthy: [00:23:27] Oh. I'm done.

Nick Capodice: [00:23:28] You're done.

Hannah McCarthy: [00:23:29] I mean, by the time [00:23:30] people listen to this, there will almost certainly be more executive orders. But yeah, for now, I'm done.

Nick Capodice: [00:23:35] All right, I have to say, that was a marathon.

Hannah McCarthy: [00:23:38] I mean, I just had to read about it. Imagine making it all happen.

Nick Capodice: [00:23:42] Yeah. That and the lawsuits.

Hannah McCarthy: [00:23:44] Yeah. There are already so many promised lawsuits.

Nick Capodice: [00:23:47] Just before we go, Hannah, can I ask real quick? What didn't he do? You know what promises are as of yet? Unfulfilled?

Hannah McCarthy: [00:23:56] Well, a lot of these executive actions might just be paving the road for [00:24:00] other stuff that Trump promised. Like revoking federal funds from schools that teach critical race theory, which grade schools, by the way, do not teach. Or schools that have vaccine and mask mandates. Trump has not yet shut down the Department of Education, though he promised to do so. He didn't yet eliminate the taxes that he promised to get rid of. The mass deportations did not happen on day one, though there have been reports of many Ice raids and raids and arrests in the last week. And he did not end the wars in Ukraine or Gaza [00:24:30] immediately after taking office.

Nick Capodice: [00:24:37] I gotta say, this is truly remarkable. I mean, the degree to which, at least on paper, literally, Donald Trump really did fulfill many of the promises he made on the campaign trail. Sending out so many orders so early in his term means we might not have to wait long to learn exactly how feasible or legal [00:25:00] these plans are, right?

Hannah McCarthy: [00:25:02] So many organizations and states are launching lawsuits. So now the question is, do the courts think X, Y, or Z is legal? And then, of course, will Congress support these orders in law and budgeting or will it render them ineffective? What flies. What doesn't? But Donald Trump is the president and these are his orders. How they happen, if at all. Is going to be up to the rest of the government. [00:25:30]

Nick Capodice: [00:25:30] I think it's going to be a busy four years. Hannah.

Hannah McCarthy: [00:25:33] Buckle up pal. That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Epidemic Sound. And I just have to say it again, we will come back to so many, if not all of these executive orders in the future. But for now, if you want more Civics 101, you can find the rest of our episodes at our website [00:26:00] civics101podcast.org. Civics 101 is a production of New Hampshire Public Radio.


 

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This podcast is a production of New Hampshire Public Radio.

Birthright Citizenship: The SCOTUS case that solidified the 14th Amendment

Most of us know about birthright citizenship, but not many people have ever heard of Wong Kim Ark and the landmark Supreme Court decision that decided both his fate and the fate of a U.S. immigration policy that endures to this day.

This is the case that solidified the Fourteenth Amendment as we understand it today. 

Transcript:

Note: This transcript was AI-generated and may contain errors

Nick Capodice: This is Civics 101. I’m NIck Capodice.

On this episode of Civics 101, we’re revisiting a topic that’s top of mind right now, as President Donald Trump has signed an Executive Order titled ‘Protecting the Meaning and Value of American Citizenship.’ This order is designed to overturn the 14th Amendment of the Constitution which guarantees birthright citizenship.

The 14th Amend6ment by the way states, quote:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

We WILL be doing an episode on executive orders, another on birthright citizenship explicitly, and we’re also working on one about Constitutional crises - so stay tuned for those.

But today we’re bringing you a look back at a critical moment in the history of birthright citizenship - a landmark Supreme court case from 1898 that cemented the interpretation of the 14th amendment as we understand it today. The case also determined the fate of the man at the center of it - Wong Kim Ark.

This episode was produced back in 2020 by Felix Poon, who's now a producer on the NHPR podcast Outside/In - at the time…he was an intern on our team. 

With the developing news around President Trump’s executive order, including the many lawsuits that have already been filed to stop it, (I won’t say the exact number because it’ll likely have increased between the time it took to read these words and deliver them to your ears) it seemed like a good time to replay this episode, which provides some understanding of the rights held by the people born in this country, and how the Supreme Court has - at least in the past - affirmed those rights. 

So, here’s that episode.

Felix Poon: Hi, Nick. Hi, Hannah.

Hannah McCarthy: Hey, Felix.

Nick Capodice: Hello, Felix. Listeners, if you don't know who this is, this is Felix Poon. Felix has been an intern with Civics for the last summer and has been a delight to work with. We're very glad you're here today.

Hannah McCarthy: Felix Yeah. And Felix, you are going to guest host today, right?

Felix Poon: I am, because I've got a story for you, and this story starts in 1895. A man named Wong Kim Ark is on a steamship returning to his hometown of San Francisco, [00:00:30] the city where he was born. And when he lands, a customs agent says he can't enter the United States. He says, you're Chinese and there's a Chinese exclusion law, so you can't come in.

Hannah McCarthy: But you said it was his hometown of San Francisco, Right. So are you saying that someone born on U.S. soil was not allowed back into the country?

Felix Poon: That's right. That's what I'm saying. And he wasn't the only one. This was actually pretty common at that time. Customs agents tried to keep as many Chinese Americans out as they [00:01:00] could, but some Chinese Americans sued the U.S. government to be granted entry. Wong came out, sued, and his case went all the way to the Supreme Court. And it's his case that solidifies birthright citizenship. Nowadays, pretty much everybody knows about birthright citizenship, which is anybody born in this country as a U.S. citizen. And that's the law. But not many people have ever heard of Wong Kim Ark and the landmark Supreme Court decision that decided his fate and [00:01:30] the fate of U.S. immigration policy that endures to this day. And that, my friends, is the story I'm going to tell you about today. I'm Felix Poon and this is Civics 101, the podcast refresher course on the basics of how our democracy works. Today, the story of Wong Kim Ark, the man, the landmark Supreme Court case and the legacy of birthright citizenship. Before I tell you about Wong Kim Ark, I need to tell you about the America [00:02:00] that you was born into. Chinese immigrants began arriving in significant numbers in the 1850s. Many came for the gold rush in California. And when the gold rush ended, they found jobs as railroad workers, miners, farmhands, laundry owners and domestics. But hostility towards them had been growing.

Carol Nackenoff: In San Francisco. You have a labor organizer, Denis Kearney, who was agitating that the Chinese were taking white jobs [00:02:30] and and running a Chinese must go campaign.

Felix Poon: This is Carroll Nackenoff, professor of political science at Swarthmore College and coauthor of the forthcoming book American By Birth Wong Kim Ark and the Battle for Citizenship.

Carol Nackenoff: In July of 1877, a mob formed and destroyed $100,000 in Chinese owned property, burning laundries and leaving four dead.

Felix Poon: That's millions of dollars of damage in today's money. That's a lot. But [00:03:00] more importantly, that's lost life and a lost sense of safety and belonging. And this racially motivated violence happened not just in San Francisco, but all along the West Coast, including Seattle, Tacoma and Los Angeles, where more than half the victims were publicly lynched.

Hannah McCarthy: That's horrifying. And I feel like this is a moment in American history that we really don't hear about. At least I didn't learn about in school. Did you, Nick?

Nick Capodice: No, not at all.

Felix Poon: Yeah, I didn't even learn about it until college, and I was kind of shocked to hear about [00:03:30] it, especially like I'd never learned about it before. And this is when Congress began excluding Chinese immigrants. They passed the country's first immigration act, the Page Act, in 1875, barring Chinese women from entering the country. And then in 1882, the Chinese Exclusion Act barred all Chinese people from entering the country. So that's the hostile environment that Wong Kim Ark was born into around 1871 [00:04:00] in San Francisco. He grew up in Chinatown. He was five foot seven tall. His father was Wong Zi Ping, and his mother was Lei Mei. His parents came to the US from Toisan, China, so public record listed them as merchants. But like, what does that actually mean?

Carol Nackenoff: They ran a store that's considered a merchant, which was in the city directory listed in 1879 and 1880 as a butcher and provision for.

Felix Poon: Wong Kim Ark didn't have much formal education. [00:04:30]

Carol Nackenoff: From age 11. He was listed as a cook.

Felix Poon: And that's about all we know about his life in the US. There are records of four trips he took to China. The first was in 1889 with his parents. He gets married on this trip to a woman named Yishai from his ancestral town of toI san. His second trip is in 1894 to 1895 to visit his wife and family, and it's coming back to San Francisco on the second trip that the customs agent says he can't enter the United [00:05:00] States.

Bethany Berger: And so he was detained. And he said, hey, I was born here. I'm a citizen. You have to let me in.

Felix Poon: This is Bethany Berger, professor of law at the University of Connecticut.

Bethany Berger: Not only did he say that he had.. He had papers with him to prove that. And the customs officer says, I don't care. Chinese cannot become citizens by being born in the United States.

Felix Poon: One of those papers is a notarized letter. We, the undersigned, do hereby certify [00:05:30] that the said Wong Kim Ark is well known to us a witness statement.

Carol Nackenoff: Anybody else traveling, a white American traveling abroad didn't have to have anything in the way of documents.

Felix Poon: This is Carol Nackenoff again.

Carol Nackenoff: And so the Chinese had a far more rigorous documentation regime than anybody else. They had to have witnesses that attested to where they lived and that they knew them.

Felix Poon: These witnesses [00:06:00] couldn't be Chinese. They had to be white.

Nick Capodice: Wait, was that written in? Was that was that a stipulation of it? Like they had to be white?

Felix Poon: I don't think they said it was like a written requirement. Like you must make sure you get a white person. It was just kind of like an unspoken rule that they wouldn't trust Chinese people. And so it was just kind of like they can't be Chinese in practice. It was find a white person, right?

Carol Nackenoff: And they would go through an interview, get this certificate that allowed them to return, go and return. [00:06:30] And it was a single use document.

Felix Poon: Even with this documentation in hand, the customs agent denies Wong K mark entry and so basically he has nowhere to go. So he gets back on the boat.

Hannah McCarthy: Seriously, did he have to go back to China?

Felix Poon: We'll get to that part. But first I have to tell you about those who came before him and what happened to them. There are a lot of Chinese men traveling back and forth to visit family in China at this time, and many are getting denied reentry to the United States. Some of them just give up [00:07:00] and make the trip back to China, a trip that takes 33 days, according to an old newspaper clipping. But others fought their detentions in court with the help of the six companies.

Nick Capodice: The six companies. What's that?

Felix Poon: Well, companies is probably a misnomer. There were really six prominent Chinese associations in San Francisco, and they came together as one to provide social support, but also to provide legal support to Chinese Americans. Here's Bethany Berger.

Bethany Berger: Again. In the first. Years of [00:07:30] the exclusion laws.They brought 7000 cases challenging Chinese exclusion. And they were so successful in doing this that Congress and the customs officials kept trying to amend the laws to make it harder for them to win these cases.

Hannah McCarthy: That's actually very cool.

Felix Poon: So the six companies are there for Wong Kim Ark. They file for habeas [00:08:00] corpus.

Nick Capodice: Habeas corpus, that little Latin phrase. That means bring the unlawfully detained person before the court.

Felix Poon: Yep, that's it. It's a right to a trial. Meanwhile, Wong Clark is still off the coast of San Francisco on a ship. And that ship is about to sail back to China.

Bethany Berger: So he's put onto another ship, and then that ship wants to go back and he's put on to another ship. And so this is a period. Of months. In which he's confined, looking over. At. [00:08:30]His hometown, but unable to set foot there.

Nick Capodice: So is he granted habeas?

Felix Poon: They do grant him habeas. But what's interesting here is that the judge actually agrees in principle with the U.S. government that Wonky Mark is not a citizen. But he says he has to go by legal precedent that was set by earlier court cases. And so he rules that Wong Clark is a U.S. citizen because of the citizenship clause of the 14th Amendment.

Hannah McCarthy: So this judge makes explicitly [00:09:00] clear that he has a racist idea here and that he is only making this decision based on precedents. He basically says this is against my better judgment, but I'm going to do this anyway. And so just as a reminder, that citizenship clause of the 14th Amendment says all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. So [00:09:30] Felix Wong, Kim Ark won?

Felix Poon: Yeah, he won. I mean, he was still unlawfully detained on three different boats for five months, but at least he won his court case.

Nick Capodice: So is that it, Felix Like, is this happily ever after for Wong Kim Ark?

Felix Poon: No, not quite.

Julie Novkov: The government immediately appeals, so they take it all the way up to [00:10:00] the US Supreme Court.

Felix Poon: This is Julie Novikov. She's a professor of political science at the University at Albany and coauthor with Carroll on their book, American by Birth. Wong Kim Ark in the Battle for Citizenship.

Julie Novkov: The majority opinion is written by Justice Horace Gray, and his response is that if people are in the United States and they're following the laws of the United States and basically they're not in some sort of special category like that of a diplomat, they [00:10:30] are living under the sovereignty of the United States and therefore, children who are born to them in the United States are born under that sovereign power. And therefore, according to common law principles, going back to England, they are entitled to citizenship on the basis of the 14th Amendment.

Felix Poon: In writing the majority opinion, Justice [00:11:00] Gray did reaffirm that there are exceptions to the citizenship clause. Diplomats are not subject to the jurisdiction of the US. If they commit a crime, they don't face the justice system the same way that we do. So there are children that are born here, not US citizens, children born here of a foreign occupying force. It hasn't happened yet, knock on wood. But if it did happen. Not US citizens. So what the majority opinion boils down to is that Wong Kim Ark does not fall into any of these exempt [00:11:30] categories. So he is indeed a US citizen.

Nick Capodice: But hold on. If this case was decided the other way, wouldn't you then have to revoke the citizenship of millions of children born to European immigrants?

Felix Poon: I mean, basically and Justice Gray wrote this in his opinion that to deny Kim Ark his citizenship would be to, quote, deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage who have always been considered [00:12:00] and treated as citizens of the United States. This ruling is a big deal. It solidifies a path to citizenship for all immigrants that is based on the 14th Amendment. But then there were some unintended consequences in the aftermath of the ruling.

Nick Capodice: Like what?

Felix Poon: So there's this phenomenon of paper sons.

Nick Capodice: Paper sons actually know about these, do you Hannah?

Hannah McCarthy: I don't. I would imagine it's someone claiming someone as their their son [00:12:30] or your daughter, but it would be son in this case.

Nick Capodice: So since the only way you could be a legal Chinese immigrant to the United States was if you were a family member of somebody who had been born here, a child of somebody who had been born here. So you have all these people claiming. Right. So all new Chinese immigrants to the U.S. are claiming that they are the children of people already here on paper, therefore paper sons.

Julie Novkov: Some of these paper sons were maybe not necessarily the sons of citizens, but they were close relatives, maybe they were brothers, [00:13:00] maybe they were nephews. But because there's an awareness among immigration officials that that this is happening, they become far, far more suspicious. What evolves out of this is that you you wind up with kind of a cat and mouse game between Chinese who are trying to get into the United States and immigration officials who are trying to keep as many out as possible.

Felix Poon: And exclusion laws only [00:13:30] get worse.

Julie Novkov: By the time we get to 1924. Legislation is basically excluding almost all Asian immigration and denying immigrants from Asia any possibility of gaining citizenship. This actually goes as far in the 1920s as denying citizenship to Japanese who had served in World War One. [00:14:00]

Archival: My fellow countrymen. We have called the Congress here this afternoon not only to mark a very historic occasion, but to settle a very old issue that is in dispute.

Felix Poon: It's not until the Immigration and Nationality Act of 1965 that immigration bans and quotas are completely lifted.

Archival: With my signature. This system is abolished. [00:14:30]

Felix Poon: And finally, you have greater numbers of Asians immigrating to the US.

Archival: Never again shatter the gate to the American nation.

Felix Poon: Soon after that, public scrutiny over immigration shifts and beginning around the 1980s, you have some people using the term birthright citizenship pejoratively against the children of undocumented [00:15:00] Mexican Americans. They call for doing away with birthright citizenship and immigration.

Archival: President Trump is setting to challenge a 150 year old constitutional standard that anyone born in America is an American citizen.

Hannah McCarthy: The President. But the president can't just unilaterally do away with something that was decided in the Supreme Court, right? I mean, the Wonka marque ruling means that they can't just get rid of birthright citizenship.

Felix Poon: Well, some would argue that the Wong Kim Ark ruling doesn't [00:15:30] apply here because Wonka Marks parents were here legally while undocumented immigrants are here illegally.

Nick Capodice: So what did the people you talked to think about that?

Felix Poon: They don't think this argument would be very convincing in court. Basically, they say that there was no distinction back then between documented and undocumented. If you made it to U.S. shores, you were a citizen. But given the exclusion laws, it was clear the government wanted to exclude Chinese people from this country. [00:16:00] So they're in consensus that the Wong Kim Mark ruling does apply, and therefore the only way to do away with birthright citizenship is to amend the Constitution, which, by the way, is not an easy process. It would need to pass through both the House and the Senate with two thirds majorities, and then it needs to be approved by three fourths of state legislatures. So birthright citizenship is probably here to stay. And our guests all agreed that's a good thing. Here's Julie Novikov.

Julie Novkov: Well, I think birthright citizenship is [00:16:30] important simply because it provides an additional layer of protection for some of the most vulnerable residents of our country. And it also, I think, telegraphs a message of equality of of being born in America. And regardless of where you're coming from or what your situation is, there's a kind of moral [00:17:00] valence to birthright citizenship that is entangled in a productive and good way with American ideals.

Hannah McCarthy: Felix I'm so curious what happened in the end to Wong Kim Ark.

Felix Poon: Well, we don't really know much beyond his third and fourth trips to China to visit his family. Remember, his wife was back in China in that fourth trip in 1931. Was Wong [00:17:30] Mark's last. He didn't come back to the US and we know that he died sometime in the 1940s.

Nick Capodice: So do you know if, like, he died without ever knowing what his legacy was?

Felix Poon: That's a really good question, Nick, and I think the best person to answer that is Erica Lee. She's a professor of American history at the University of Minnesota. She said the reason why he wouldn't have known is because of his lived experience. Remember those notarized witness statements Wong Kim Ark had to get Erika went to see the originals [00:18:00] at the National Archives at San Francisco, and she saw that by his third and fourth trips to China, the U.S. government standardized them into a templated form.

Erica Lee: It was called application of alleged American citizen of the Chinese race for pre investigation of status. This is a government form that means that someone typeset it, someone put it through the printer, someone ordered thousands of copies to be printed and then sent to immigration offices around the country having [00:18:30] that. That term alleged citizen shows just how deeply rooted and institutionalized this racism was. So. So no matter if you won the Supreme Court case. On a daily basis, you're still going to be suspect. I also remember flipping through the file and wondering, where's the copy of the Supreme Court case? Like, shouldn't this be like in Monopoly? Should this be or get out of jail free [00:19:00] card? Like, shouldn't he have just, like, gotten walked off the ship? Hey, it's one mark, you know. Come on in. That didn't happen.

Hannah McCarthy: Felix This is something that we encounter a lot when it comes to people who win their Supreme Court cases in the names of civil rights, and that's that. It just takes so long for whatever it is they've won to be implemented across the United States, right? That that that person ostensibly the beneficiary isn't practically [00:19:30] the beneficiary. They don't get to reap the reward of that decision. And it sounds like that's how it went down for Wong Kim Ark, right?

Felix Poon: Oh, definitely. But there is one last thing to this story. What this landmark ruling does do for Wong Kim Ark is that it allows his sons to immigrate to the US and become naturalized citizens. So guess what? Wong Kim Ark has descendants here in the US, and I just think that's amazing because the US government tried so hard to prevent [00:20:00] Chinese immigrants from establishing families here, but here they are, the family of Wong Kim Ark.

Hannah McCarthy: Mark Felix Does this end up being this proud family story that gets passed down?

Felix Poon: Actually, no. Erica says nobody in the family really knew about it until 1998. There was a 100 year anniversary celebration in San Francisco, and Wong Kim Ark's youngest son just happened to see it reported in the Chinese language newspaper.

Erica Lee: And this is where for the first time, those of us who had [00:20:30] researched Wong Kim Mark realized that his son was still living in San Francisco and that when the reporter interviewed him, he expressed a great deal of surprise that he had never heard his father talk about his struggle. He had no recollection that this [00:21:00] Supreme Court case and the right of birthright citizenship was based on his father's efforts. And it was just such a, I think, tragedy of how we choose which stories, which struggles get remembered and which ones we allow to get forgotten. It was a double tragedy, you know, not just for the Wong family, [00:21:30] but for all of us who care about our our country. One would think that when you win a Supreme Court case and that it establishes such a broad base of citizenship rights, the right of birthright citizenship, that your name would be well known, celebrated, that there would be streets named after you, that there [00:22:00] would be a a statue, that there would be a way that every schoolchild would know who this person was and the importance of his struggle for equality.

Nick Capodice: I just want to say I think it's interesting that the three of us are talking about learning or not learning about [00:22:30] this in school because we've been talking a lot about exclusion and the idea of like the Chinese Exclusion Act. But exclusion doesn't end in 1965. There's still this exclusion of what stories we tell and don't tell.

Hannah McCarthy: I feel like after today, I have a much clearer sense of this time in American history. So thanks for sharing Felix.

Felix Poon: Yeah, thank you for having me host Today it's been an honor to be able to tell you this story. Today's [00:23:00] episode was produced by me Felix Poon, along with Hannah McCarthy, Nick Capodice and Jacqui Fulton. Erika Janik is our executive producer. Special thanks to Bill Hing and Taylor Quimby. Music In this episode from Blue Dot Sessions, Sara, the instrumentalist, Loba Loco and the Tower of Light. You can listen to more Civics 101 at Civics101podcast.org. Civics 101 is supported in part by the Corporation for Public Broadcasting. [00:23:30] It's a production of NHPR, New Hampshire Public Radio.

NIck Capodice: This episode of Civics 101 was written and produced by Felix Poon, Hannah McCarthy, and Nick Capodice. Our executive producer is Rebecca Lavoie, and our senior producer is Christina Phillips. Music In this episode from Blue Dot Sessions, Episodemic sound, Sara, the instrumentalist, Loba Loco and the Tower of Light. Special thanks to Taylor Quimby for his voiceover in this episode. You can listen to more Civics 101 at Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What is the Department of Education?

Dismantling the Department of Ed? It's been tried before.

During his campaign, Donald Trump promised several times that he woulddo just that. So today we wanted to explore what such a dismantling would look like, as well as what the DoED does in the first place. 

Turns out, while the Department does an awful lot of things, there is much for which it is criticized that it does not do. Taking us through its creation, its history, and its powers is Adam Laats, professor of Education at Binghamton University. 

Link to our episodes on School Lunch here and here.

And here are some good resources for anyone who wants to know a little more about Jonestown. My 8th grade report is, sadly, unavailable:

https://www.npr.org/2017/04/11/523348069/nearly-40-years-later-jonestown-offers-a-lesson-in-demagoguery

https://www.nytimes.com/1979/11/18/archives/jonestown-the-survivors-story-jonestown.html

Transcript

Note: This transcript was AI-generated and may contain minor errors.

Nick Capodice: I do have a quick interruption that's not related to education. Is there any chance in your room you have a different chair?

Adam Laats: Oh, this one's squeaky.

Nick Capodice: Yeah.

Adam Laats: Yeah, it's. Well, um.

Nick Capodice: You don't have to.

Adam Laats: You got time? I'll get a different chair.

Nick Capodice: Look at that old chair. Shut up. You're listening to Civics 101 Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy, and.

Nick Capodice: Today we are talking about the United States Department of Education.

Hannah McCarthy: Who is that in that squeaky chair just now?

Nick Capodice: That was. That was repeat. Civics 101 guest, Adam Laats.

Adam Laats: Yeah, yeah, I'm Adam Laats. I'm a professor of education and history at SUNY Binghamton.

Nick Capodice: Uh, Adam got another chair, by the way, so we were all set.

Adam Laats: All right. How's this one?

Nick Capodice: Fantastic. I would like it if you came in with, like, a series of progressively older chairs. Enough about chairs, Hannah. Let us talk about the Department of Education and some quick abbreviation clearing up. When we say the Doe, we are usually referring to the Department of Energy. So we can't say it for education. Most folks say Department of Ed or Doe ed. I'm going to say d o e d a few times today, even though I'm not sure if it's right.

Hannah McCarthy: And I know the Department of Education has been in the news as of late, primarily because president elect Donald Trump has stated that he plans to dismantle it.

Archive: And one other thing I'll be doing very early in the administration is closing up the Department of Education in Washington, D.C..

Nick Capodice: Yep. He has. And we are going to get to that, as well as his nominee for secretary.

Archive: The woman he has chosen to lead that charge, Linda McMahon, a well known businesswoman who helped to build the wrestling empire WWE. Can McMahon, if confirmed, bring the changes the president elect is looking for?

Hannah McCarthy: But as of right now, January 2025, the DoD is not DOA. So before we talk about why someone would want to dismantle it, what does the Department of Education do? Why was it was it created in the first place?

Nick Capodice: Absolutely, Hannah, but I have to say up front that this story takes a lot of pretty bonkers twists and turns.

Adam Laats: Is it? I don't know how much normal people know. Like, there's a there's a suicide cult involved. Like, do we want to talk about that suicide cult?

Nick Capodice: Yeah, and that is just the beginning.

Adam Laats: There's also, uh, anti-brotherhood school movement. Like we can't teach the children that humans are all brothers. That's part of the story also. And bombing, blowing, blowing up schools is part of it.

Hannah McCarthy: Wow. Okay.

Nick Capodice: But before all that, to your question, what does the deed.

Adam Laats: Do people, even if they know a lot about education and the United States, the Department of Education, I think is, is sort of mysterious because it doesn't do what I think a smart layperson would think. It doesn't actually decide much about what's going to go on in K-12 schools or colleges for that matter.

Nick Capodice: So, Hannah, pretty quickly this interview became about what the department doesn't do. Now, there is an awful lot that they do do, but it is not what I had thought.

Adam Laats: That's the way the US works, which is different from like almost everywhere else. That's all, you know, district and state level, like mostly states. Like what's the curriculum going to be? Are there are we going to have history tests like in New York to graduate? That's all state. And even like almost all of the money is local. So the the federal Department of Education doesn't pay for schools. It doesn't decide what's going to go on in schools because it's so new. You know, only since the Carter administration, it exists as a kind of mishmash of different pre existing federal programs that got put together under Carter as a as a new cabinet level post. And it matters. I mean, it matters that it's in the cabinet instead of like as part of the Department of Health, Education and welfare. Like, it's symbolically super important that Carter Carter did the same thing with energy. You know, we're going to emphasize how much this matters to us by making this a cabinet level post that matters, but it doesn't do what I think a informed, intelligent observer would think, which is it doesn't decide what's going to happen in K-12 schools or colleges.

Hannah McCarthy: Now, just to clarify, the Department of Education does not decide what is taught in schools.

Nick Capodice: Not in the slightest.

Hannah McCarthy: I mean, I'm fairly sure that most people do think that the Department of Ed is in charge of all of that. I mean, if I'm not mistaken, much of the current outrage toward the department is tied to what schools teach and how they teach it, as well as how our schools are doing compared to other nations schools.

Nick Capodice: Yeah, and politicians reinforce that thought. At the Conservative Political Action Conference last year, Donald Trump said, quote, across the country, we need to implement strict prohibitions on teaching inappropriate racial, sexual and political material to America's schoolchildren in any form whatsoever.

Archive: And if federal bureaucrats are going to push this radicalism, we should abolish the Department of Education.

Nick Capodice: But that aside, Adam says, one of the reasons why people might take issue with the department is due to people's interpretation of how schools are doing, generally in the United States.

Adam Laats: Gallup polls over and over. And this has been, you know, from the 80s till now, they've asked people, how do you think America's schools are doing? And large majority, 75%, 80% are like, oh, they're doing terrible. Like, what grade would you give them D. And then the follow up question, um, how are your kids schools doing? Oh, fantastic. Hey. And in the same proportion 80% go A or B for their kids schools. 80% go D or worse for the school in general. America's schools are fantastic. Not all of them. But America's schools in huge proportions are very beloved by the people who use them. What's not beloved is this idea of a distant educational bureaucracy. And before the Department of Education, there were other bugbears out there for conservatives, and there are some for progressives, too. So, for example, ask a progressive what the danger is for school, and they have a list of distant, bureaucratic, well-funded entities the Heritage Foundation. For conservatives, it's been things like Teachers College at Columbia University where, you know, left wing professors were spreading these ideas. John Dewey as like a an idea has always been seen as like, you know, harming local schools. Once there's a Department of Education, it takes on all that fear of a distant, out of touch elite harming my local schools. And so I think it becomes super unpopular, even though the things that it does in practice tend to be extremely popular.

Hannah McCarthy: Has it pretty much always been this way that the Department of Education is viewed by conservatives as, you know, as Adam put it, a bugbear, a quote unquote distant elite always.

Nick Capodice: And this is where we get to how people viewed it at its creation in 1979. But I can't talk about its creation without mentioning its first incarnation.

Hannah McCarthy: We had a different Department of Education.

Nick Capodice: We did. We had an earlier one right after the Civil War.

Adam Laats: Right after the war, Andrew Johnson started a Department of Education, being encouraged by congressional leaders. And he did. But it was extremely unpopular because the Freedmen's Bureau was actively and energetically educating former enslaved people. The Department of Education, even though it wasn't that wasn't what it was doing, becomes very unpopular.

Hannah McCarthy: So the Freedmen's Bureau was invested in educating formerly enslaved people. But the Department of Education was not.

Nick Capodice: No.

Nick Capodice: It wasn't. Adam said that the creation was sort of an empty gesture to appease northern politicians who asked for it.

Adam Laats: Henry Barnard I was just working in in archival materials. It's pretty sad. He, uh, he was the Connecticut state superintendent. He was a colleague of Horace Mann in Massachusetts. He thought he was gonna ride in, uh, to the federal department and transform the United States education system. What he found, though, was not only did he was he not able to do much, he did some stuff. He collected a lot of statistics, which is great, but when he asked for more than four employees, they took employees away and they cut his salary by 25%. So he just Rodney Dangerfield his way out of that. I mean, he got no respect.

Archive: Well, that's the story of my life. No respect. I don't get no respect at all.

Adam Laats: And they closed the office after, you know, 18 months I think about two years. They just closed it down.

Nick Capodice: So fast forward 111 years, and we get to our modern incarnation of the Department of Education under Jimmy Carter.

Adam Laats: Governor Carter made a deal with the National Education Association. If they swung to him in the election and gave him their support in 1976, he would push hard to elevate education to a cabinet level post. And this was the that kind of politics. Nothing illegal about it. It's just, you know, that's politics. An interest group promises you their support. They deliver. So then Carter was pressed to deliver a Department of Education again. Not that it would have the power to actually do the kinds of things I think street level people think it would, but it's a huge symbolic statement to say education is up there with defense. This is a priority of our federal government, and it wouldn't happen if not for a suicide cult. Bom bom bom.

Hannah McCarthy: Bom. I was waiting for this part.

Nick Capodice: Okay. Jimmy Carter gets elected. He owes the National Education Association for backing him during the election. And he starts to advocate for creating the department.

Hannah McCarthy: But he cannot do it all by himself because it's Congress and not the president who creates departments.

Nick Capodice: Exactly. So the Senate is pretty much for it. The House is a little more against it. Specifically, one man in the House of Representatives who is determined to block any legislation that creates a Department of Education. This is California Democratic Congressman Leo Ryan. Do you know that name?

Hannah McCarthy: I don't think I do.

Adam Laats: He's not as famous now as as he is once you get into the 20th century archives. But in the, in the in the 60s, 70s, he was a very sort of high profile congressperson. He did things like, um, at the time of the La Watts riots, he was a teacher before he went into politics. He went in undercover to teach at a school to see what the deal was.

Nick Capodice: So Congressman Leo Ryan went to Newfoundland to investigate seal killings. He went undercover as an inmate at Folsom Prison to report on conditions there.

Hannah McCarthy: Really?

Nick Capodice: Yeah.

Adam Laats: So he's this, like, TV show, perfect Congress person. Leo. Ryan. And he hates the idea of a department of Education. And he has a committee role that allows him to block it pretty successfully, even though he's a Democrat. He's super opposed to the idea of a federal Department of Education, and he blocks it, and he has the power to block it. But because he's a crusading, high profile congressman, he flies down to Guyana to investigate a murder cult led by the notorious James Jones.

Archive: The charismatic Reverend Jim Jones controlled a cult based in San Francisco to escape scrutiny. He moved the group to a jungle commune in Jonestown, Guyana.

Nick Capodice: So for anyone out there who hasn't heard of Jonestown, it was a settlement in the jungle in Guyana. And it was also the topic of my very first history report in Mr. Zeki's class in eighth grade. Jonestown was a religious commune under the leadership of Reverend Jim Jones, and a lot of people who went to the commune came from San Francisco. So they were technically Congressman Ryan's constituents. And Ryan had heard of some horrible, horrible things going on down there.

Adam Laats: So he as is his want. He smells publicity. He takes a trip. Uh, there's there's journalists, there's hangers on, there's relatives. They go down to Jonestown to investigate. They are ambushed. They are murdered in cold blood at the at the airstrip because of the murder of a US congressman. Jim Jones knows their time is up. He dishes out the Kool-Aid because he's like, well, they're coming for us, but we're going to go out on our own ticket. We're going to we're going to decide how we go out. We're not going out. We're not going to jail. We're not going to fight the US.

Archive: We're out. Good evening. Here's what's happening. We're interrupting our special broadcasting to bring you this special report. A new C news break on the Peoples Temple, mass suicides in Guyana, and the murder of Congressman Leo Ryan. I would mention to you now, tonight's movie will run in its entirety immediately following this special report. I also have to warn you, as we begin this special report, that what you're about to see almost defies description. And some of you may not want to watch it.

Nick Capodice: So the oft used expression is Kool-Aid, but technically it was called Flavor Aid. But that's not really the point. Jim Jones Administered cyanide laced flavor aid to his parishioners, killing about 900 people. Jones himself did not drink the cyanide. He died by a gunshot wound. It's a horrific story. It's a fascinating story. I'm going to put some links for anyone who wants to know more in the show notes.

Adam Laats: But because of that, the opposition to the Department of Ed disappears from the House of Representatives, at least on the Democrats side. The legislation goes through.

Hannah McCarthy: That is. I had no idea that that is how the d e d came about. I mean, that's a really remarkable turn of events, isn't it? So Carter got his new department right. What did he end up doing with it?

Nick Capodice: Well, not a whole heck of a lot. Carter didn't do much because it was created towards the end of his administration. His first secretary was Shirley Hufstedler, and she had just gotten started establishing the department. And then Jimmy Carter lost reelection to Ronald Reagan, who had promised on the campaign trail. Wait for it. That one of the first things he would do would be to eliminate the Department of Education, which we are going to talk about, as well as what the DoD is doing as of this minute, right after a quick break.

Hannah McCarthy: But first, if you want to hear more about things like Nick's eighth grade report on Jonestown, that is the sort of slightly tangential stuff that we put in our newsletter. Extra credit. You can subscribe to it at our website, civics101podcast.org. We're back. We're talking about the Department of Education. And, Nick, we had just gotten to the creation of this department, the second creation, I should say.

Nick Capodice: Right. And this new department didn't really create anything new right off the bat. The same thing happened with the newly created Department of Energy. It just sort of sort of moved existing things from other departments under a new umbrella.

Hannah McCarthy: And you said that Reagan wanted to dismantle it immediately.

Nick Capodice: He sure did. Here again is Adam Latz, professor of education at Binghamton University.

Adam Laats: Reagan comes in swearing to get rid of it. Get rid of education. Get rid of energy.

Archive: We propose to dismantle two cabinet departments Energy and education, by eliminating the Department of Education less than two years after it was created. We can not only reduce the budget, but ensure that local needs and preferences, rather than the wishes of Washington, determine the education of our children.

Adam Laats: But he doesn't. It's kind of obvious in retrospect. He doesn't. Because as soon as, um, Terrell Bell is his first secretary. Terrell Bell takes the job knowing he's supposed to dismantle this department. And so he makes it super popular. Or he makes its work super popular among Reagan conservatives by by assembling a commission to prove that Reagan policies are correct.

Hannah McCarthy: Okay, so once they got a little taste of the power that comes with running a new department, they were not as interested in dismantling it.

Nick Capodice: Exactly. And they get right to work and publish a famous, still cited report called A Nation at Risk.

Adam Laats: And it says what a lot of conservatives at the time really wanted to hear, which is that American education had been hijacked by left wing radicals. The phrase that pays back. Then what really stick was if this system had been imposed by a foreign power, we'd consider it an act of war. You know, there's a rising tide of mediocrity that has taken over our schools. So the Department of Education does that. That's like its first big thing is to say that education in America has been attacked successfully by the left.

Archive: The report states bluntly that the very future of our nation is at risk. Sabotaged by a rising tide of mediocrity in our children's education. The statistics are alarming.

Hannah McCarthy: But if the Department of Education didn't decide what was taught in schools, who took the blame for this so-called rising tide of mediocrity?

Nick Capodice: No surprise the teachers did.

Adam Laats: It was because of of communist leaning teachers unions that the mediocrity had been so triumphant. But it's kind of surprising because we keep hearing, you know, conservatives attacking the Department of Education. And they still and they did at the time. But even as they did it, conservatives always loved what the department did when it was in like their hands. Like anything else, it's a government tool. And when it's been like in the Reagan administration and the first Trump administration that the Department of Education has done things that have been very popular among conservatives.

Hannah McCarthy: Like what? What sorts of things.

Nick Capodice: Well, for example, in Donald Trump's first term, Secretary Betsy DeVos advocated for block grants for all money from the department that went to schools that gave them fewer restrictions on how to spend it. And also, Donald Trump pushed for abolishing preexisting loan forgiveness programs.

Hannah McCarthy: Right. That's the thing where if you work in the public sector for ten years, your loans get forgiven.

Nick Capodice: Right.

Hannah McCarthy: Exactly that. How much money does the Department of Education get every year? What is their budget?

Nick Capodice: Well, of course it changes from year to year. But in 2024, they received $102 billion.

Hannah McCarthy: And how is that money spent?

Adam Laats: Title one is huge. And that's, I think, probably the most obvious, biggest federal impact. But that came before the Department of Education.

Hannah McCarthy: Can you give me a quick explanation of title one?

Nick Capodice: Yeah, sure. This goes back to Lyndon B Johnson. Title one pays federal dollars to schools that have a certain percentage of students who are low income. That money is spent on meals for students. It's spent on classroom materials, teacher salaries, and a whole lot of other stuff.

Hannah McCarthy: By the way this is a fascinating rabbit hole. We have gone down the school lunch path before here on Civics 101. There's a link to those episodes in the show notes if you're interested.

Nick Capodice: I do love those episodes. But anyways, after title one, the largest chunks of the budget are money for special education. That is, money for grants that go to staff and facilities for students with special needs. And finally, as we just mentioned earlier, college funding. You know, this is federal loans, grants and tuition forgiveness programs. But the department doesn't just give dollars to schools. Another role of the Doe is to enforce laws in an education setting.

Adam Laats: Here are some other things that that every school everywhere knows about. And they're not. It's not money, but it's super physical. Every single school doorway has a ramp. So to get into any school, you have to be able to wheel your way in. That's federal. That's Ada. The feds don't provide the money for those ramps. Uh, the money is generally local and state. Uh, but the federal government said you have to do this stuff. And same thing with a lot of, uh, things like special education law. Those are federal things that really changed dramatically. Changed schools.

Nick Capodice: Your school must be Ada compliant. And if it's not, it can be sued.

Adam Laats: And let's not forget the most obvious one from the 20th century. Racial desegregation is a federal thing. States absolutely did not choose to desegregate. The federal government backed up with the 101st Airborne in Arkansas. You know, that's that's that's such raw federal power. It's direct federal soldiers implementing state and local school decisions.

Archive: President Eisenhower sends 500 troops of the 101st Airborne Division of the United States Army to Little Rock by night. They are to keep order and to see that the law of the land is obeyed.

Adam Laats: So if federal influence shows up all over the place, it's just not in the biggest ways that you think. Like, for example, what do you learn in 10th grade about math?

Hannah McCarthy: One thing I am curious about is the relatively recent push toward what is called school choice, where families can get vouchers to help pay for tuition at a private school, a charter school, a parochial school, or the like. Does that money come from the Department of Education?

Nick Capodice: That's a great question. As of right now, it does not. Currently, money for programs like those come from state departments of education, though I have to add, Donald Trump said in October, quote, school choice is one of the most important things we're going to be doing.

Archive: We're fighting for school choice, which really is the civil rights of all time in this country. Frankly, school choice is the civil rights statement of the year, of the decade and probably beyond.

Nick Capodice: School choice programs are in direct opposition to the Department of Education, because the Department of Education supports free public K-12 schools.

Adam Laats: In Kentucky, for example, in Texas. In these red states, you have these voucher programs that are very popular among governors, among policy makers. They're very unpopular among conservative rural populations. So if the Texas story is really fascinating, Texas, very red, very conservative, they try to push with billionaire funding from Pennsylvania. They try to push a new ESA education savings account program vouchers. It gets pushed back on by, you know, Trump supporting Make America Great Again conservatives from rural districts because it would really take money away directly away from the public school districts, and nobody wants that. You know, the number of people who would advocate for, you know, getting worse schools for your children, that's vanishingly small. You know, choice works as a slogan when people can legitimately say, of course I want a better public school for my child. Choice doesn't work in a rural New Hampshire, Kentucky, Colorado Texas area. When choice in practice means money taken away from your public schools.

Archive: School leaders across the state have been speaking up about possible ripple effects for public schools. Investigator Kelly Wiley takes us to Seguin, Texas, where the superintendent fears lawmakers are considering legislation that would deal a financial blow to an already strained system.

Adam Laats: But not just from the academic programs, but from community programs like football. Like if you threaten a town's football program and I'm not I'm not poking fun at all. That's that's a center of their community. It's it's it's it's woven entirely into their public school culture. So no matter your politics, people really don't like the idea of having money taken away from their public school budgets.

Nick Capodice: The last thing I want to add here about school choice programs, which I am promising Hannah to do an episode on this year, is that the Institute on Taxation and Economic Policy recently published a report on school choice credits. And this report revealed that wealthy families are the overwhelming majority of people that use them. This report said, quote, in all three states providing data. Most of the credits are being claimed by families with incomes over $200,000.

Hannah McCarthy: Last thing, and who knows whether or not you know, by the time this episode goes to air, things are going to be different. But as of this recording. Right. So this is January 15th, 2025. The Department of Education exists. So I do think it's worth mentioning that Donald Trump's nominee for the department, Linda McMahon, is a staunch proponent for school choice programs, very much like Trump's former secretary, Betsy DeVos.

Archive: Can you tell us more about McMahon's background in education?

Archive: So she's not well known as, uh, as an education policy person. She's never worked in the field. Um, she did graduate with a teaching certificate. Um, but then she got married young and went into the wrestling promotion business with with her husband, Vince McMahon.

Hannah McCarthy: So is this appointment a prelude to the end of the department? Is the DoD in danger of being eradicated? Well.

Nick Capodice: Adam doesn't think so.

Adam Laats: I will be shocked and amazed if the Department of Education goes away. I should mention I've been shocked and amazed for about eight years now in general. So. But I will be again shocked and amazed if this actually if that if they actually get rid of the Department of Education. But it wouldn't get rid of other things, and it wouldn't get rid of a lot of the things that are already in the Department of Education. It would most likely just move them around and move the get rid of the cabinet secretary. But the programs would just move again, most likely to other departments, because that's what they did to create the department.

Nick Capodice: First off, like you said earlier, Hannah, it is Congress, not the president, that creates departments. And that goes for closing them as well. A president cannot do it by themselves. And secondly, a lot of Republican majority states get an awful lot of title one funding for their schools. So I don't think it's something their constituents necessarily want. And last thing, Hannah, picking someone for a secretary for the intended dismantling of a department. That we've seen this before.

Adam Laats: I think people now in 2024 are sometimes surprised that someone like Linda McMahon might come in and be a secretary of education. Someone like Betsy DeVos could come in and be a secretary of education. But Terrel Bell, in the 70s, he was giving white House support to school boycotters in West Virginia, who had firebombed and dynamite bombed school buildings and the district headquarters after the bombings. Terrel Bell from the white House sent his support, implying the White House's support for this boycott of schools. So, you know, the idea that somehow suddenly school politics have gotten rough. Um, school politics have gotten rough. Uh, but school politics have always been rough, and the federal politics have always been pretty shockingly willing to get in bed with violent, aggressive. Extreme. School activists.

Nick Capodice: Yeah. Yeah, yeah. Oh, I know that chair.

Adam Laats: This one, I think, came from a Milwaukee, uh, supper club. Uh, if you're not a midwesterner, you might not know the supper club scene, but they all have chairs like this. Like.

Nick Capodice: Well, this episode was made by me. Nick Capodice with you, Hannah McCarthy. Thank you. Christina Phillips is our senior producer, Marina Henke, our producer. And Rebecca Lavoie, our executive producer. Music in this episode from Epidemic Sound. And also Cass Blue Dot sessions bio unit. And if music be the food of civics.

Nick Capodice: Play on Chris Zabriskie. Give me excess of it.

Nick Capodice: Civics 101 is a production of NPR, New Hampshire Public Radio.


 
 

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This podcast is a production of New Hampshire Public Radio.

What are Trump's climate plans?

What has Donald Trump claimed he would do when it comes to environmental policy in the U.S.? What happened during his last administration?  And what are the limits on executive powers when it comes to treaties and global agreements?

Elizabeth Bomberg, Professor of Politics at the University of Edinburgh, tells us what we can expect when it comes to emissions regulations, drilling, climate research, the Paris Agreement, and so much more.  


Transcript

Hannah McCarthy: [00:00:03] This episode is coming out just a week before former President Donald Trump once again becomes President Trump. Now, Trump laid out plenty of intentions over the course of his campaign. We'll be returning to his day one promises in an upcoming episode. But for today, we're going to take a closer look at an issue that has long been inciting and activating in this country. [00:00:30]

Archival: [00:00:32] I'm a 15 year old climate warrior spokesperson for my generation, and I'm suing the United States government for violating my constitutional right to a healthy atmosphere.

Archival: [00:00:41] Scientists have concluded the growing number of fires is a result of climate change. But some voters still remain skeptical.

Archival: [00:00:49] Our colleague said, why are we having this discussion? There is no climate crisis. It's all a hoax.

Archival: [00:00:55] The scientific consensus is clear climate change is real.

Archival: [00:00:58] I think there are a substantial [00:01:00] number of scientists who have manipulated data. You know.

Archival: [00:01:04] All these politicians were talking about the economy. There is no economy. There is no functioning society on a planet that is in ecological collapse.

Archival: [00:01:12] And so the reality is more people are dying of bad climate change policies than they are of actual climate change.

Archival: [00:01:20] Polls show more than 60% of Americans disapprove of President Trump's handling of climate change.

Hannah McCarthy: [00:01:35] This [00:01:30] is Civics 101 I'm Hannah McCarthy.

Nick Capodice: [00:01:38] I'm Nick Capodice.

Hannah McCarthy: [00:01:39] And I think it's important to note that while I am recording this episode, wildfires, including the most destructive in Los Angeles history, a raging in California. While there is a strong consensus among scientists that climate change increases both the frequency and severity of forest [00:02:00] fires. President elect Trump and other Republicans have already blamed Democratic policies, not climate change, for the devastation. But one way or another, we are definitely talking about the environment here. So looking forward, what has Donald Trump promised to do when it comes to environmental policy in the US? What do we know? What do we not know? We're turning to someone who does know this issue pretty well Elizabeth Bomberg.

Elizabeth Bomberg: [00:02:28] Yeah, I'm Elizabeth [00:02:30] Bomberg, and I'm a professor of environmental politics here in Edinburgh, Scotland, but I'm actually originally from California.

Hannah McCarthy: [00:02:38] All right. So before we take a look to the future, we're going to gaze into the past. We cannot know for certain what president elect Trump will do when he takes the office again. But we do know what he's done in the past.

Nick Capodice: [00:02:52] And real quick, can we just remind everyone what the president is actually allowed to.

Hannah McCarthy: [00:02:57] Do when it comes to climate policy, we [00:03:00] can.

Elizabeth Bomberg: [00:03:00] What presidents generally, including President Trump, can do is. Literally, the day they enter office, they can issue a whole series of executive orders. And those aren't legislation, but they are orders that, say, could eliminate certain. Regulations on environmental protection or climate. Or they could eliminate certain. Sources of funding. [00:03:30]

Nick Capodice: [00:03:30] And executive orders, while swift and decisive, aren't necessarily long lasting.

Hannah McCarthy: [00:03:36] No. For one, they can be overturned by a new president. Trump signed 220 of them in his first term. President Joe Biden rescinded 62 of those in his first 100 days alone. For another, they can be rendered ineffective by Congress if lawmakers so choose by failing to provide funding, for example. They are also frequently challenged in court. One other thing that presidents have the power to do, and [00:04:00] we'll talk about this later, is join or reject global agreements.

Nick Capodice: [00:04:05] And we're talking environmental policy in this episode. So what did that look like under the first Trump administration?

Elizabeth Bomberg: [00:04:11] So I think overall, it would be difficult to characterize his first term as particularly promising for environmental protection or for climate emissions. His first term is, [00:04:30] in my view, having studied this, better characterized as one dominated by a desire to slash funding for scientific expertise and for research, but also to eliminate many of the really significant environmental protections That the federal government had put in place for the last couple [00:05:00] decades. And the third plank of my characterization would be a general hostility towards the idea of climate as a serious threat. He has characterized it in the past and also more recently as a hoax or a scam. So he does not take climate change seriously.

Speaker12: [00:05:27] All of this with the global warming and that [00:05:30] a lot of it's a hoax. It's a hoax. I mean, it's a money making industry, okay? It's a hoax.

Nick Capodice: [00:05:35] And this hoax claim definitely stuck. Hannah.

Hannah McCarthy: [00:05:39] Yeah, very much so. And to be clear, climate change is not a hoax. In his first term, Trump opposed policies that limited carbon, mercury and methane emissions, opposed protections for wildlife and wetlands, and energy efficiency standards. He also shrunk two national monuments, one by 85% [00:06:00] and the other by about half, to open the land up for fossil fuel and gas leases. A big motivator here, as Elizabeth pointed out, is that Trump sees a direct contradiction between environmental protection and economic growth.

Elizabeth Bomberg: [00:06:15] He doesn't see these as mutually compatible, and he favors economic growth. I think that's how I would sum that up. So he thinks that those who are concerned [00:06:30] about climate or want to take really ambitious measures are doing so because they have some other political agenda, or maybe they just don't know the science. Maybe that's what he would say. But if climate change enters his vocabulary, it is inevitably linked to the to the idea of this is a hoax, or this is a scam, or this has been exaggerated, or this is another element [00:07:00] of wokism or something of that sort.

Hannah McCarthy: [00:07:03] So I feel like we do have to mention that Trump has called himself a great environmentalist president.

Archival: [00:07:09] But it's true, number one, since Teddy Roosevelt. Who would have thought Trump is the great environmentalist? Do you hear that? Do you hear that? That's good. And I am, I am I believe strongly in it.

Nick Capodice: [00:07:22] So, Hannah, what exactly is the plan for the future here? Like we know how Trump feels about environmental policies. We know what he's done [00:07:30] in the past. So what does he plan to do with his next term.

Hannah McCarthy: [00:07:35] In terms of Trump's promises or plans to protect or strengthen the environment? Here is what we know.

Elizabeth Bomberg: [00:07:40] What he would focus on is policies, say, around tree planting. He has endorsed and said we need to plant more trees and he wants clean air and water. And he says, you know, the US does have the cleanest water and air of any nation. And while that's not statistically true, it does [00:08:00] show that there might be some areas that he wants to strengthen as far.

Hannah McCarthy: [00:08:04] As his other promises go.

Elizabeth Bomberg: [00:08:05] And so what he had promised quite consistently and probably will deliver on, is that he will do his best to scrap many of these regulations so that industry, and especially above all fossil fuel industries, can get on with their job, as he puts it, because he wants to expand enormously fossil fuel extraction in all kinds of [00:08:30] areas through fracking, which we can talk about later, but also through increased drilling, including on public lands, including in wilderness areas.

Nick Capodice: [00:08:39] So when we hear drill, baby, drill and.

Archival: [00:08:42] We will drill, baby drill.

Nick Capodice: [00:08:47] Is this what we're talking about?

Hannah McCarthy: [00:08:50] Yeah. Oil from federal lands and water accounts for nearly a quarter of US oil production. And we will talk about current American oil production levels in a bit. And [00:09:00] Trump wants to ramp that up and cut regulations on fossil fuel extraction. He also promises to reduce support for low carbon energy sources.

Nick Capodice: [00:09:09] And by that we mean.

Hannah McCarthy: [00:09:11] Think solar, thermal, geothermal and nuclear power, wind power, low carbon biofuels made from algae or plant waste, or zero carbon fuels like ammonia or hydrogen. Electric vehicles, for the record, fall under this category for Trump as well. He has equated new car emission standards [00:09:30] with electric cars themselves, claimed that people could be forced essentially to buy only electric cars. He talks about an electric vehicle mandate that does not exist. Trump also happens to have chosen Tesla CEO Elon Musk, who has made a lot of money from electric vehicles for his new government efficiency department. But so far, Musk is on Trump's side on this.

Archival: [00:09:53] And I will end. The electric vehicle mandate on day one. Thereby [00:10:00] saving the US auto industry from. Complete obliteration, which is happening right now and saving U.S. customers. Thousands and thousands of dollars per car.

Hannah McCarthy: [00:10:16] Trump also vows to revoke the Inflation Reduction Act, which incentivizes the transition to, quote unquote, clean energy and, of course, to withdraw from the Paris Agreement.

Nick Capodice: [00:10:30] All [00:10:30] right. These are the promises. But you know what I always say about promises, Hannah from The Cremation of Sam McGee. A promise made is a debt unpaid. And to that, may I add, may we all be Lannisters.

Hannah McCarthy: [00:10:45] I mean, I'm not entirely sure that's how politicians see it. Nor do I think that we should aspire to be Lannisters. But I do take your point, and I do think a lot of American voters care about promises. So what is the near [00:11:00] future of American climate policy? We'll get to that in the future after this break.

Nick Capodice: [00:11:07] But before that break, a reminder that Hannah and I wrote a book. Holy cats. It's called A User's Guide to Democracy How America Works. We think you're gonna need it. Anyways, you can get it wherever you get your books. We're [00:11:30] back. You're listening to civics 101. We are talking about the future, specifically what we might expect from president elect Donald Trump in terms of environmental policy. And Hannah, before the break, you promised me a little something that is to tell me what's gonna happen.

Hannah McCarthy: [00:11:49] Well, we're not in the business of forecasting here at Civics 101, but we are in the business of speaking with people who know a lot more about what's going on than we do. That's where Elizabeth [00:12:00] Bomberg comes back in. So let's start with a highly likely event.

Elizabeth Bomberg: [00:12:05] A major executive action of Trump's, which is not about domestic policy, but it was to withdraw the US from a really major international climate change agreement called the Paris Agreement.

Nick Capodice: [00:12:22] Okay. We do hear about this one a lot. Uh, two things we got to take care of here. First off, what is [00:12:30] the Paris Agreement?

Elizabeth Bomberg: [00:12:31] The Paris Agreement was signed by nearly 200 countries in 2015, and it's a major United Nations agreement. And this Paris agreement stipulates Relates that all the countries who sign up for it, including the US, pledge to set national targets and put in place kind of domestic measures that will reduce their own climate [00:13:00] emissions. Okay. It's not itself binding. It's not as though a UN officers are going to go in and check. It's voluntary, which is why it was agreed to by 190 something states. And the idea is that let countries themselves figure out what can they do to put forward a pledge that collectively will ensure that countries across the globe are able to [00:13:30] reach a global emission target that keeps the climate warming to under two degrees, or ideally, even 1.5.

Nick Capodice: [00:13:42] All right. And we know that Trump has taken us out of this agreement before.

Hannah McCarthy: [00:13:47] Though Biden did put us right back in when he won the presidency.

Nick Capodice: [00:13:50] And this agreement. It's not binding. There's no giant penalty for not meeting your targets.

Hannah McCarthy: [00:13:56] No, but promise made debt unpaid, right? You say you're [00:14:00] going to do something. So do you do it? Are you showing that you're a climate leader? Are you going to prove your country to be a source of new environmental technology, a good potential partner, a country other countries want to make deals with? It's the social, political and economic pressure that keeps this agreement rolling.

Nick Capodice: [00:14:22] And given that Trump is promising to take us out of this agreement yet again, what does that actually mean?

Elizabeth Bomberg: [00:14:28] It doesn't change [00:14:30] what the US is likely to do domestically. There are disadvantages for the US of pulling out. It means we domestically we lose an incentive Of to further cut our emissions and share our innovations and work harder to achieve a goal that is good for everyone across the globe. Okay, so we don't get to be a part of that. Um, but it also means more strategically if you're not a part of that treaty, [00:15:00] um, you no longer have a seat at that table. So you're not able to shape these global targets. So leaving the Paris Agreement, which almost certainly Trump will do, this will have slightly negative effects, but it won't be devastating.

Hannah McCarthy: [00:15:16] Before we move on, we do need to touch on one maybe related thing here. There's the Paris Agreement and then there's the Unfcc.

Nick Capodice: [00:15:27] I'm listening.

Elizabeth Bomberg: [00:15:30] What [00:15:30] we don't know is whether the Trump administration will go beyond just leaving this agreement. There is some talk and some of his advisers and some of the more conservative think tanks who have shaped his campaigns and continue to shape his policies. What they would like is for the US to withdraw not just from one agreement, but from the entire UN framework that [00:16:00] underpins all climate negotiations. Right. That would be much more serious. So that is called the UNFCCC or the UN Framework Convention for Climate Change.

Nick Capodice: [00:16:14] Hold up. Is the UNFCCC a treaty like a treaty? Treaty?

Hannah McCarthy: [00:16:20] It is indeed.

Nick Capodice: [00:16:21] So can the president actually pull us out of a treaty agreement? Isn't that like an advice and consent of the Senate thing? Operative [00:16:30] word here being consent.

Elizabeth Bomberg: [00:16:33] There's some ambiguity whether the Trump administration can pull the US out of the whole framework convention without the support of the Senate. Because the Senate, your listeners might know, the Senate gets to approve whether the US can join a treaty. What we don't know is whether we need Senate approval, two thirds approval. [00:17:00] So a big approval to pull the US out of the treaty. So this will be really interesting legally, if the Trump administration does try, it wouldn't take place right away, but it's something to watch.

Hannah McCarthy: [00:17:12] All right. Moving on. Let's drill a little deeper here.

[00:17:15] Drill baby drill.

Elizabeth Bomberg: [00:17:21] Drill baby drill. Yes. Yeah. There's a couple disincentives for companies who might want to drill. And one is [00:17:30] gaining access to the land, especially if it's public land, because much of the drilling and extraction is done in public land. And then what kind of controls and permits and permissions. Do you need to put in place before you start drilling? So if those are relaxed, then those fossil fuel firms will have an easier time in drilling in more places, including quite pristine wilderness. So I think we will see more of that.

Nick Capodice: [00:17:59] More of that [00:18:00] though I will say we have had plenty of drilling during Biden's presidency, haven't we?

Elizabeth Bomberg: [00:18:05] Record breaking and ironically, fossil fuel firms, energy firms have some of the highest profits. This is not something that the Biden or the Harris campaign made a big deal of, but it is one of the reasons that those who were environmentally or climate very focused voters, including many young voters, did not enthusiastically support [00:18:30] the Democratic ticket.

Hannah McCarthy: [00:18:35] Elizabeth did add that this is all complicated by permits that were already issued. Disruptions in the fossil fuel supply from Russia. The ongoing war in Ukraine increased global demand. Et cetera. All of which led to an energy crisis. Also opening areas and providing leases for drilling. That's one thing, but the government cannot control the oil market or whether oil companies choose to drill. [00:19:00] Still, drilling was at an all time high under President Biden. Biden did very recently, by the way, issue an offshore drilling ban, which Trump promises to revoke on day one.

Archival: [00:19:12] They took away 625 million acres of offshore drilling. Nobody else does that. And they think they have it. But we'll put it back. I'm going to put it back on day one. I'm going to have it revoked on day one. We'll go immediately if we need to. I don't think we should have to go to the.

[00:19:28] Courts, but if we do have to go to court. [00:19:30]

Nick Capodice: [00:19:33] And I know we have mentioned it, Hannah, but there are a lot of regulations at play here, right? Regulations that Trump wants to dismantle to allow the fossil fuel industry to ramp things up. So who's in charge of that?

Elizabeth Bomberg: [00:19:47] The Department of Energy traditionally has been in charge and responsible for energy extraction. So rules and also incentives for how [00:20:00] the US gets its energy, as well as regulation of how that energy should be extracted and what should happen to the waste from that energy extraction. So here I think we'll see something quite dramatic, especially if Trump's nominee to lead the Department of Energy, that's Chris Wright is his nominee and again, has to be approved. But if he is approved, he is [00:20:30] himself a climate denier. And also he's made his millions through fracking. What he has already vowed as his Trump is to remove significantly the controls that are now put on how fracking is done.

Hannah McCarthy: [00:20:47] Fracking, by the way, also known as hydraulic fracturing. It's a process that cracks open rocks beneath the surface of the Earth to extract trapped natural gas and oil. Fracking [00:21:00] is thought to pose a threat to drinking water, both the supply and the cleanliness. It has been tied to increased earthquakes. The process itself, as well as the use of natural gas and oil, also contributes to air pollution. Okay, so we've talked about regulations before. They come from executive branch agencies. And it is Congress that gives those agencies the authority to issue regulations. And environmental regulations are, of course, not exclusive to fossil fuel extraction. [00:21:30] We're also talking about emissions, pollutants, all sorts of things that poison or diminish the air, water and soil.

Elizabeth Bomberg: [00:21:40] What we will probably see in the first couple of days is, first, a slashing of funding and support and power for particular regulatory agencies. So one target would be the Environmental Protection Agency. So this is the federal agency that [00:22:00] is in charge of protecting human health and the environment more generally. And it is the agency that issues regulations that limit the amount of carbon that can be released into the air, or limits the amount of chemicals that can be sprayed, or limits the kind of pollutants that can be dumped in waterways. So basic, but, you know, crucial environmental protection. The EPA, the Environmental [00:22:30] Protection Agency, relies on regulations that it can then implement. But these many of these regulations can be removed by executive order because they're not congressional legislation. It's an executive regulation.

Hannah McCarthy: [00:22:46] Now, just to be clear, there are processes in place when it comes to how regulation happens or goes away. There's a rulemaking procedure governed by law. But as we learned in the previous Trump administration, [00:23:00] breaking with common practice does not necessarily amount to breaking the law, especially when the courts are on your side on.

Nick Capodice: [00:23:08] That particular subject. I feel like our episode on the Chevron Doctrine might have some useful background. There's a link in the show notes.

Hannah McCarthy: [00:23:15] Yet courts no longer have to defer to executive agency expertise, so they are way more empowered to reject agency regulations. Okay. Moving on. Trump [00:23:30] has promised to either defund or reduce funding for lowering carbon emissions.

Nick Capodice: [00:23:39] This is what we talked about earlier. Wind and solar and stuff like that. Uh, renewable energy.

Hannah McCarthy: [00:23:45] Yeah. And there's a significant hitch when it comes to pulling government support of renewable energy. And that hitch isn't just political, it's also economic.

Elizabeth Bomberg: [00:23:56] On one hand, we have without a doubt, and this is something that [00:24:00] Trump or no one person could stop, is that we have this inexorable trend. We have an unstoppable trend towards renewables globally and also in the US. Renewables are increasing, including and this is what makes it very interesting. The most dramatic increases has been not in the blue states like California and New York. No, it's been in the red states. It's been especially in Texas. So you've [00:24:30] got these states who are benefiting enormously from renewable energy. But then you also have an incoming administration that wants to get rid of renewables, or certainly doesn't endorse renewables as a way towards energy independence.

Nick Capodice: [00:24:48] Okay, so basically, Trump vows to withdraw support for renewable energy, but renewable energy is making money.

Hannah McCarthy: [00:24:58] And one not insignificant [00:25:00] factor is that there are a lot of conspiracy theories out there about what else renewable energy is doing.

Elizabeth Bomberg: [00:25:08] Some very powerful but unfounded claims or conspiracies.

Archival: [00:25:13] They're dangerous. You see what's happening up in the Massachusetts area with the whales, where they had two whales wash ashore, and I think a 17 year period, and now they had 14 this season. The windmills are driving the whales crazy.

Elizabeth Bomberg: [00:25:32] Some [00:25:30] of the key purveyors of those unfounded claims are potential nominees, including Robert Kennedy Jr, who does think that offshore wind is a danger to health. What that means for investment? We still don't know because the government can set incentives and subsidies, but I don't think those statements are enough to stop this really powerful trend. [00:26:00]

Hannah McCarthy: [00:26:04] Elizabeth did say that even if the United States reduces or withdraws support for renewable energy development and production, and by the way, that support often comes in the form of tax subsidies, aka tax breaks for companies that are exploring and manufacturing renewable energy sources. Anyway, even without that government support, Elizabeth doesn't see this upward trend toward renewables going away. It's [00:26:30] a global thing. What she does see potentially happening is renewable startups struggling in the US and America, potentially losing its footing in the renewable energy race.

Elizabeth Bomberg: [00:26:43] If you're someone just starting and you need that government subsidies to help you, the way that those government subsidies helped Elon Musk with his, you know, electric cars or what have you, that won't happen. And it also means and this is harder to measure, but I think we'll have really significant [00:27:00] implications is that if the US government withdraws that support, both rhetorical support but also financial support, that means others will step in. So the main threat to the production of US green energy right now is a competition from China. So if the US steps back, then China production will increase to supply those to others.

Hannah McCarthy: [00:27:27] Basically, Elizabeth says. Watch what happens on that [00:27:30] front. Trump is also, of course, promising tariffs on goods imported from China. Listen to our episode on tariffs to understand exactly what that means. But if the United States isn't buying renewables from China, it might encourage domestic production. Assuming, of course, there are incentives like tax subsidies to get that production off the ground.

Elizabeth Bomberg: [00:27:53] Producers, you know, business people whom Trump does listen to more [00:28:00] than an environmentalist. If they say, look, you know, we need this for jobs and we need this to make us energy independent. Trump is somewhat agnostic. You know, I think he can be open. We know he's a transactional person who just sees a deal and he likes to get that done. So he might listen to that and decide to change his opposition to renewables. That wouldn't surprise me. I could see him coming out. It would be interesting to interesting to watch.

Hannah McCarthy: [00:28:28] Okay. Last big environmental [00:28:30] policy promise Trump made to revoke the Inflation Reduction Act.

Elizabeth Bomberg: [00:28:35] Trump cannot revoke the Inflation Reduction Act. Okay. It's a congressional piece of legislation. That doesn't mean that he can't try. And he has allies in Congress and his party controls both houses. But key here is that he will need to go through Congress. He will need to work with [00:29:00] Congress to revoke all or parts of that act. As we were speaking about before, the Republican states are the most significant beneficiaries of the Inflation Reduction Act. So that act provided oodles of money for investment in green transition and to jumpstart renewable energy production. Did a whole host of host of things. Many Republicans don't want that repealed. [00:29:30]

Nick Capodice: [00:29:30] So that really makes it sound like the Inflation Reduction Act isn't going anywhere.

Elizabeth Bomberg: [00:29:36] Well, there could be regulations that undermine some of the dimensions that are in the Inflation Reduction Act. So that's that's a way of that's a more a sneaky way to undermine some of the goals and aims of the Inflation Reduction Act without revoking the act itself. The Inflation Reduction [00:30:00] Act set aside particular pots of money for particular communities. There was a very strong justice element attached to the Inflation Reduction Act. So these would be particularly deprived communities, generally communities of color who are suffering the most from pollution or the effects of climate change, and there were certain programs that are funded [00:30:30] to help address some of that because they haven't been implemented yet. It could be that the Trump administration, then is able not to get rid of the pot, but stop the implementation of that money being dispersed. For instance.

Hannah McCarthy: [00:30:47] The Biden administration, by the way, is currently trying to get as much of that money dispersed as possible before they're out of the white House. But moving billions of dollars from federal coffers to state and local governments is not an easy [00:31:00] task. There are also tax incentives for individuals and families buying electric vehicles, solar panels, even heat pumps. But these require paperwork and navigating supply chain problems so that one might be a race against the clock.

Nick Capodice: [00:31:16] So, Hannah, I think it's important to point out here that there are promises and there are Possibles and there are probables. Right. But ultimately we [00:31:30] can't know what this new administration will do with and to environmental policy in the United States, especially when so many of these plans involve existing law and procedures.

Hannah McCarthy: [00:31:43] We really can't. We just have to wait and see. So I think for those invested in the fate of climate policy, one way or another, Elizabeth is really just saying, here's what to look for, here's what to watch. Basically, pay attention to X, [00:32:00] Y, and Z because here's what it could mean. But policy and law and legality aside, Elizabeth says that Trump has already accomplished a meaningful and likely lasting change when it comes to American attitudes toward the environment.

Elizabeth Bomberg: [00:32:17] I think this idea of an ideational or the role of narratives kind of shaping the narratives, because those can outlive any particular president [00:32:30] and they're much harder to shift. So I think in Trump's first term, he already sought to change in significant ways the way that Americans think about the environment and the way they think about climate and the way they think about America's leadership role or America's role in the world. And I think in all these areas, we [00:33:00] are still witnessing the impact that he had in his first term. One of the areas is how do Americans view expertise? How much do they trust international and national institutions to identify a problem and then address the problem? And there has been such a significant drop in Americans trust of scientists. America's trust in expertise [00:33:30] more generally, and even Americans trust in the role of federal or state institutions to deliver a common good.

Hannah McCarthy: [00:33:40] And Elizabeth says there is the fact that the incoming administration has a much better handle on how things work than it did the last time around. A much stronger team that knows exactly what it wants and has a pretty good idea of how to get there. Deregulation is a pretty common name of the game here, not just with environmental policies, [00:34:00] but beyond. By the same turn, though, Elizabeth believes that those who are concerned about losing climate and environmental protections have learned a thing or two as well.

Elizabeth Bomberg: [00:34:11] Those who are advocates for environmental action, they've seen this now before. This is not new and shocking. And oh my gosh, where did this come from and how do how do we react and what can we do? They know what the playbook is, how to reach those members of Congress who are benefiting, how to focus on state measures. [00:34:30] They will come even more important than in the past, and states are already building all kinds of alliances. But also, I think that those advocating for change have become slightly more sophisticated or or becoming more in tune with what motivates voters in the public more generally. And it's actually not to be green, and it's not because it's the right thing to do. It's making much more of the [00:35:00] interlocking between environmental and climate action and other things that Americans value. You know, whether that be future generations or whether that be, you know, the beautiful national parks and things around us, or whether if you're a person of faith, what does that bring or whether you care about social equality. So the idea of intersecting. More of linking climate and environment to other positive values. [00:35:30] I myself think that's the best way to communicate. And I think the more that that can get across, the more that whatever you think of a particular candidate, you can say, ah, I think there is a space for us to make sure that we're living in a unpolluted world, that we can habitate and, you know, live with others to prosper.

Hannah McCarthy: [00:35:53] So a savvy administration against a savvy environmentalist movement, one [00:36:00] promising a brighter future via unfettered or at least less fettered industry. And the other via a less polluted planet. We often talk about finding consensus, using that as the foundation for constructive and net positive change in America. Most people might be able to agree that they want to be safe, healthy, fed, clothed and sheltered. That they don't want to fear for their or their children's futures. [00:36:30] That they want their communities to thrive. That they don't want to worry about money. That might be some kind of American consensus, but agreeing on how to get there when the potential paths diverge so drastically in this America, that might be easier said than done. And at least for the next four years, our chief executive has told us what path he plans to take. We'll [00:37:00] just have to see where that leads and what Americans think about it.

Nick Capodice: [00:37:25] This episode is produced by Hannah McCarthy with Marina Henke and Me Nick Capodice. Our senior producers [00:37:30] Christina Phillips and our executive producer is Rebecca LaVoy. Music. In this episode by Diana Particle House, Craig Weaver, Lucas Got Lucky, Mind Me, mindless, Timothy Infinite, Sven Lindvall, and Zorro. You can get everything else Civics 101 has ever made and reach out to us at our website civics101podcast.org. And if you like us, consider leaving us a review. Throw us some stars. You can do that on Spotify, Apple Podcasts, or wherever you get your audio. Civics [00:38:00] 101 is a production of NPR New Hampshire Public Radio.


 
 

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Secretary of Transportation with Pete Buttigieg

Transportation and infrastructure are massive (literally) undertakings here in the United States. So what does it mean to oversee it all? What is the Secretary of Transportation actually in charge of and what's going on with our roads, bridges, airports, etc.?

We spoke with Secretary of Transportation Pete Buttigieg to find out.


Transcript

This transcript was computer-generated, and edited by a human. It may contain errors.

Hannah McCarthy: [00:00:00] Nick, have you ever noticed that when we talk about the importance of government, the reason why you should care the way it affects your daily life? We almost always talk about things like intersections and stop signs.

 

Nick Capodice: [00:00:14] That is kind of true. It's like our own personal civics 101 cliche. And by the way, this is Civics 101. I'm Nick Capodice, I'm Hannah McCarthy.

 

Hannah McCarthy: [00:00:23] And back to this stop sign thing. I think the reason that we use this as an example for how government affects you is that it is such an everyday thing, right? So quotidian. And at the same time, it can mean the difference between a safe, straightforward, not at all annoying drive or walk or bus ride and a dodgy sloggy extremely annoying drive or walk or bus ride.

 

Nick Capodice: [00:00:55] Like that specific rage that comes with hitting the same pothole you always hit and screaming to the skies asking why your town hasn't fixed it yet.

 

Hannah McCarthy: [00:01:04] Infrastructure rage is extraordinary. I, for example, live in the Boston area where the subway system has ruined everyone's commutes and so basically lives for like 20 years. Up until very recently.

 

Nick Capodice: [00:01:19] I remember once getting lost on some backwoods country road in Vermont and the relief, Hannah, the utter relief of finding myself on a paved, smooth roads after hours of the exact opposite of that.

 

Hannah McCarthy: [00:01:33] Bridge closures, detours. Train delays. Flight delays, flight delays. Fun fact I partially wrote this episode while experiencing a flight delay, which was funny because the person we're talking about today has actually thought quite a bit about people and planes.

 

Pete Buttigieg: [00:01:52] Well, I think a lot of airline passengers find themselves in a situation where they feel like they don't have a lot of power. You get stuck in an airport, you can't get somebody on the phone, and the airline says, well, too bad, or we'd love to take care of you, but we don't have another flight for three days or something else happens and you feel powerless.

 

Hannah McCarthy: [00:02:10] This is the person who is thinking about infrastructure. So ideally you don't have to.

 

Pete Buttigieg: [00:02:16] Sure, I'm Pete Buttigieg, I'm the US Secretary of Transportation.

 

Nick Capodice: [00:02:22] Wait, so Pete Buttigieg is allowed to do something about airlines.

 

Hannah McCarthy: [00:02:26] Among many, many other things. So the Department of Transportation, or DOT, is an executive branch agency. These agencies are there to administer and enforce laws. They also make and enforce rules and regulations. These are not the same things as laws, but you do have to follow them, at least until the next secretary changes them.

 

Pete Buttigieg: [00:02:51] We're using our rulemaking power. And by the way, we don't just I don't just pull a rule out of the air and say, everybody has to follow this now. We have a whole process where everybody from an airline CEO to an ordinary passenger can submit their comments and weigh in before we finalize any rule.

 

Pete Buttigieg: [00:03:07] But the kind of rules we're having are ones that say, for example, that if you pay for something, you don't get it, the airline has to give you your money back without you having to ask. Or if you're booking a ticket and there's a bunch of extra fees and charges, they have to show you the fees and charges before you buy. Common sense stuff, I think. But we had to go through a whole process to make that take effect.

 

Hannah McCarthy: [00:03:28] That process, by the way, is the rule making process and it is involved. That's for another episode on another day. In terms of the enforcement part of being an executive branch agency, the DOT relies in part on people like us to tell them when something is afoot.

 

Pete Buttigieg: [00:03:46] We set up a website called Flightrights.gov about all of the things that you can expect and require your airline to do for you if they do get you stuck because information is a source of power. We have a complaints portal where you can complain to us if they're not following the rules, and we follow up because that's enforcement power.

 

Nick Capodice: [00:04:03] All right. So if the airlines aren't behaving the way the DOT told them to behave, they get penalized.

 

Hannah McCarthy: [00:04:09] They do, for now at least. Again, the interesting thing about these agencies is that they can shift drastically from administration to administration. But here is how Pete Buttigieg thinks about his job.

 

Pete Buttigieg: [00:04:24] Well, the thing about infrastructure is you tend to notice it least when it's at its best. Like if you got a perfectly smooth road between your home and your work, you're probably not thinking on your on your way like, oh, what a great road. I haven't hit a pothole this whole trip. You don't think about that unless it's just been resurfaced. And then you think about it for like a week and then you get used to it. If, on the other hand, there's a problem, you can't take the bridge that you're usually taking because it's been closed, or there's a limit on how many vehicles can drive on it because it's in poor condition, or you're getting on an airplane and you've got a four hour delay or anything else goes wrong, that's when you notice it.

 

Nick Capodice: [00:05:06] And that that is where the infrastructure rage comes in.

 

Pete Buttigieg: [00:05:10] So the paradox of our work is I've got to make sure there's enough attention on our work to maintain the support, to do it, to to have the funding to fix the road or to have the power to require the airlines to take good care of passengers, while recognizing that the better we do our jobs, the less people have to think about it. With one big exception, which is all of the people who work in this sector, there are so many people, from a flight attendant to an electrical worker involved in one of the projects we're funding to, let's say, fix an airport terminal, whose livelihoods depend on this.

 

Nick Capodice: [00:05:49] Can we take a quick step back here, Hannah, and say what Pete Buttigieg actually does, fix the roads, fix the airports, etc. but what does that actually mean? Like, what does the Secretary of Transportation actually do all day?

 

Pete Buttigieg: [00:06:08] Okay, well, if it's a Washington day, then I get up, I make my way to the office. We start with the around to check ins with the team, to find out anything that's happened overnight that I need to know about, our plans for the day, any interviews that I'm doing, what we're planning to do in the media, and then we jump into a lot of meetings and conversations. Might be an interview like this one, followed by a meeting with a senator who's interested in a project that they're hoping to get done in their state. Maybe they got a bridge that needs work, and they're hoping to get funding from our department to help get it done. I might address a larger group, vehicle safety advocates, who are concerned with making sure that there are fewer car crashes, or a gathering of consumer groups in the aviation industry who want to get more passenger protections. I might find myself at the White House to be part of the team that I'm part of, in addition to, of course, the work here at the Department of Transportation.

 

Nick Capodice: [00:07:06] All right. So Pete Buttigieg talks to the press and he talks to politicians, and he talks to advocates, and he talks to the president's people, and he talks to other cabinet members. And look, I know this like, I know the higher up you are, the more your job becomes talking. But it's got to be way more than that.

 

Pete Buttigieg: [00:07:24] If you've ever seen an ad saying "call before you dig 811", which is about pipeline safety, that's us, because we're responsible for pipeline safety. If you've ever heard of the US Merchant Marine Academy, that's part of our department. We issue the licenses for commercial space launches because that's part of what the FAA that's in charge of aviation and the national airspace does. We're not NASA, but in order to get to space, you have to go through the national airspace, and we're responsible for the national airspace. So it is really an extraordinary scope of different things that we work on. But what they all have in common is they have to do with moving people or goods safely in this country, and they require some level of federal involvement to make sure it goes well.

 

Nick Capodice: [00:08:11] Would it be fair, Hannah, to say the Department of Transportation is all over the place?

 

Hannah McCarthy: [00:08:16] Very good. Yes. A little all over the place, but literally, yes. The Department of Transportation includes the federal highway, railroad, transit, aviation and motor carrier safety administrations. We're also talking about the Maritime National Highway Traffic Safety Pipeline and Hazardous Materials Safety Administrations, even the Saint Lawrence Seaway Development Corporation.

 

Nick Capodice: [00:08:44] I'm sorry, the what?

 

Hannah McCarthy: [00:08:45] So you know how for a long time, people were looking for the Northwest Passage to get from the Atlantic to the Pacific Ocean.

 

Nick Capodice: [00:08:51] Oh, I certainly do. Hannah. Stan Rogers even has a whole song about it.

 

Hannah McCarthy: [00:08:55] Well, this is not that, but people thought it was. It's a series of waterways that the United States and Canada turned into a water highway from the Atlantic up to Montreal, and the Saint Lawrence Seaway Development Corporation helps take care of the US part of it.

 

Nick Capodice: [00:09:12] And the Secretary of Transportation is in charge of the people taking care of it.

 

Hannah McCarthy: [00:09:16] Right.

 

Nick Capodice: [00:09:17] All right. So it really is all about moving people and goods. And given the fact that we have hundreds of millions of people and billions of tons of goods.

 

Hannah McCarthy: [00:09:27] I mean, it takes the GDP of a mid-sized country.

 

Nick Capodice: [00:09:30] Yeah, about that. So what is all that money actually doing?

 

Hannah McCarthy: [00:09:36] Planning, fixing, building, maintaining. Roads, bridges, Seaways, aviation infrastructure, the things that we use to move people and things. A big part of the Secretary of Transportation's job is to get the money to the people doing the transportation projects, of which there are currently a lot, for reasons we will get to shortly.

 

Pete Buttigieg: [00:10:03] Go to something like Investor.gov and you can see it's called Investor.gov, because investing in America is our our framework for everything we're doing. You can see DOTs all over the map. You'll find a project close to where you live, wherever you live, because we're doing 66,000 of them. So I have I've been to every single state in the US, and I have only seen a tiny fraction on this job of the projects we're doing.

 

Pete Buttigieg: [00:10:25] Another thing I want people to know is that a lot of the decisions are actually being made closer to where you live. So much of our funding is set up through a process. It's a competition. Different states and cities come in. They say, we got this project, they've got that project, and our team works through them. And then I sign off on the winners who get the limited funding that we have. But actually, most of our funding doesn't work that way.

 

Pete Buttigieg: [00:10:50] Most of the billions of dollars that come out of this building where I'm sitting go into the hands of a state, and the state in turn, often distributes them to more local units, like what's called a metropolitan planning organization, an MPO.

 

Nick Capodice: [00:11:04] Hang on. I want to make sure I get this right. So your state or your city can basically make a pitch to the DOT and hope you have the best pitch. And it's Pete Buttigieg who decides what the best pitch is.

 

Hannah McCarthy: [00:11:18] Yeah, basically there are grants which are competitive, and then there are appropriations, which are based on a formula approved by Congress and distributed to state DOTs, tribal governments, various transit agencies. These entities get to decide, to a degree what to do with that money. And Pete Buttigieg wants you to know that you actually get to weigh in if you want.

 

Pete Buttigieg: [00:11:42] This is getting pretty wonky, but the reason I want people to know about this is often the meetings of those bodies that decide what to do with this money, like an NPO, are open to the public. So unlike here in Washington, where you only get to speak in a committee meeting in Congress, if you've been invited, a lot of these processes closer to home, you can just show up. And back when I was a mayor, I saw decisions made differently sometimes because young people, high school students, even, not old enough to vote, showed up, stood in line and said their piece. And I hope people remember that because if you know, for example, that on your walk to school or on your drive to soccer practice, there's an intersection that's unsafe, there might be a chance to do something about that by getting that intersection on the radar of people in your state legislature or state Department of Transportation, or just your city council or county who are figuring out what to do with some of these funds, or putting together a process for community input, which we require on many of the projects that we're funding. So find ways to get involved. Even though the dollars are federal, you don't have to come to Washington in order to be involved in how they get used. In fact, the whole point is that everything we fund is a local project somewhere that's designed locally, and then all we do is prepare the funding and make sure that it follows the rules of what to do with federal taxpayer dollars.

 

Nick Capodice: [00:13:11] All right. I was going to ask about this. You can't just go willy nilly all over the place with your federal money, right? Like the DOT is watching.

 

Hannah McCarthy: [00:13:19] DOT is watching. We talked about airline consumer regulations earlier, but a lot of these rules and regs are about safety. Is something being planned, built or repaired the right way? Will it be safe for people and the environment in the future?

 

Nick Capodice: [00:13:35] So while we're on the subject about doing something about transportation.

 

Hannah McCarthy: [00:13:40] That is, in fact, the singular subject of this episode. Right.

 

Nick Capodice: [00:13:43] But I would like to, if I may, draw your attention to the elephant on the bridge here.

 

Hannah McCarthy: [00:13:48] Go for it, Mr. Barnum.

 

Nick Capodice: [00:13:50] So, Hannah, if there is one word that I have heard more than any other to describe infrastructure in America over the last two decades, it is crumbling.

 

Hannah McCarthy: [00:13:59] Ah, yes, the crumbling infrastructure. And you know what? We're going to get to that after a quick break. But before that break, a reminder that Nick and I wrote a book. It's called A User's Guide to Democracy How America Works, and it's the book that you can reach for whenever you find yourself wondering, is that legal? Why is that happening? What does that even mean re America? You can get it wherever books are sold.

 

Hannah McCarthy: [00:14:48] We're back. We're talking about the secretary of transportation with Pete Buttigieg, the current secretary of transportation. But we're also talking about what the Department of Transportation the DOT actually does. And a big part of what the DOT does has to do with how much the DOT has to work with in terms of money and laws. And Nick, before the break, you mentioned this pretty common buzzword that we have heard a lot when it comes to talking about infrastructure in America. That word is crumbling.

 

Archival Audio: [00:15:24] Our roads and bridges are crumbling, our airports are out of date, and the vast majority of our seaports are in danger of becoming obsolete.

 

Archival Audio: [00:15:32] The best interstate system in the world, which is now falling apart.

 

Archival Audio: [00:15:35] It was a stark reminder of this nation's crumbling infrastructure.

 

Archival Audio: [00:15:40] According to levy expert Jeff Mount, our nationwide system of levees is old, poorly designed and in desperate need of repair.

 

Archival Audio: [00:15:47] It's safe, Steve, but it's not reliable, and it's getting less reliable. It's old. It's systems are breaking down.

 

Hannah McCarthy: [00:15:58] So there's this annual infrastructure report by the American Society of Civil Engineers. And the US has not fared well for decades. We're talking a D, maybe a D plus for a grade.

 

Nick Capodice: [00:16:11] Which is a scary grade for the stuff that moves people and things.

 

Hannah McCarthy: [00:16:16] It's not great. So since the 1970s and until very recently, infrastructure investment has gone down and down. A lot of the stuff that we use to move people and things is at least 50 years old or much older. It was built in and for a different world. The older it gets, the more expensive it becomes to fix or replace it. And then there's the question of, well, do you fix it or do you replace it? And can you get enough votes to get enough money to do either of those things? Is it politically popular? How do you get people to agree on what to do with the money, even when you have the money? And who is actually in charge when we're talking about thousands of state and local departments and agencies.

 

Nick Capodice: [00:17:07] So federalism and politics are kind of the answer as to how things got so bad.

 

Hannah McCarthy: [00:17:14] You know, that's the answer to most questions here on Civics 101. Also, infrastructure is often so big and takes so much time. An infrastructure decision is not the same thing as a tax decision, but its effects tend to last a lot longer.

 

Pete Buttigieg: [00:17:31] You know, a lot of decisions that are made in here in Washington are kind of year to year decisions. Sometimes a piece of tax policy or some regulation and it happens. And then that's that's the rule for next year. But if we build a bridge, we better put it in the right place and design it in the right way, because 50 years from now, people are still going to be counting on it. And one way this hits close to home is that we're living with decisions that were made 50 years ago or 100 years ago. And some of those decisions were good. Some of them were not. Many of us live in neighborhoods that are cut off or cut in two, because somebody put in a highway right in the middle of it, when it could have been designed in a way that wouldn't impact the neighborhood. And right now, we're deciding what to do about that.

 

Nick Capodice: [00:18:17] All right. So let's get to the right now part. You said that investment has been declining until very recently.

 

Pete Buttigieg: [00:18:23] So right now we're in the middle of an infrastructure package. In other words, we're doing a round of repairs and construction. This is bigger than anything we've done since the 1950s, when we set up the highway system in the first place. And it would be easy to think that that was just happening. But actually, for most of our first year in this job, most of 2021, we didn't know if we were going to be able to do that. President Biden said that it was going to be a priority, but we had to negotiate it with Congress, and we were working very hard to get Democratic and Republican votes to make it happen.

 

Hannah McCarthy: [00:19:00] The Infrastructure Investment and Jobs Act was signed in 2021 and provided over $1 trillion for transportation, infrastructure, environmental mitigation and things like broadband, quote unquote, clean energy and the electric grid.

 

Nick Capodice: [00:19:16] This is the one that's also called the bipartisan infrastructure law, right? Was it actually bipartisan?

 

Hannah McCarthy: [00:19:23] It was. But also some of the politicians who voted for it received threats for voting for it, so don't go thinking it was easy. But after years of what we called Infrastructure Week being a big joke not just in Washington but nationwide, this was a significant thing. And transit wise has been funding the very, very big like bridge projects and airport renovations and also the smaller but more immediate like new school busses.

 

Archival Audio: [00:19:54] The $1.2 trillion bill includes $550 billion in new spending, including $110 billion for roads and bridges, $25 billion for airports, and the largest federal investment in broadband ever, $65 billion.

 

Archival Audio: [00:20:10] All of this is extremely, extremely important and needed all over the country. The biggest investment and by.

 

Hannah McCarthy: [00:20:15] The way, our latest grade from that report that I mentioned earlier, we're up to a C minus, which is better than we've done in a while.

 

Nick Capodice: [00:20:23] Hannah, is this why so many people actually know who the Secretary of Transportation is these days because there's a ton of money to do transportation stuff.

 

Hannah McCarthy: [00:20:33] I mean, I think that and also a lot of people already knew him.

 

Pete Buttigieg: [00:20:38] Well, you know, two years before I came, became secretary of transportation, I was a mayor of a mid-sized Indiana city, and nobody outside of that city would have much reason to know who I was. But about one year before I became Secretary of Transportation, I was running for president. And so a lot of people got to know me, and I tried to use that visibility that followed me into this job. When President Biden asked me to to take this role, I tried to use that tool to help get things done, especially when we were negotiating this big infrastructure package. So because people knew who I was, I spent a lot of time arguing on television and calling up senators and members of Congress making the case, and was in rooms negotiating, sometimes with the president, sometimes on my own, uh, working on how to get this done.

 

Nick Capodice: [00:21:28] You know, this really hammers home the point to me, Hannah, that cabinet members, in essence, have political jobs. I mean, they have very specific responsibilities. Right. And for Pete Buttigieg to keep it really simple, that is moving people and things safely. But but to actually get things done, it helps if you know how to politic.

 

Hannah McCarthy: [00:21:52] Yeah. You know, how we often ask the question is this thing that we're talking about political on its face, for example, is a bridge political is flying through the sky at 42,000ft, political? Is that stop sign political? I mean, maybe not in isolation, but none of it happens without politics. It's about money and jobs and consumers and citizens and safety and fairness and talking to people. Which is maybe why, when I asked Secretary Pete Buttigieg if he has time for a life in all of this, he did take the chance to remind me why he's actually here to begin with.

 

Pete Buttigieg: [00:22:39] The pace can be pretty extreme, but, you know, my husband definitely expects me to be available to either take care of the kids while he's running to target or go to target so he doesn't have to. So at least on weekends, we try to have somewhat of a normal life. The days can be packed. I couldn't help but notice today I was glancing at the schedule and I'm not certain where lunch is going to happen. But you know, that's because there's so much good work today.

 

Hannah McCarthy: [00:23:15] That does it for. This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by El Flaco Collective. Commodity. Spring gang drama beats Ryan, James Carr, Casey Wilcox and Beigel. If you have any questions for Civics 101, we want to hear from you. Go to our website civics101podcast.org and submit your questions about America. You are our main source of ideas for these episodes and we of course are here to serve. Civics 101 is a production of NHPR New Hampshire Public Radio.

 


 
 

Made possible in part by the Corporation for Public Broadcasting.

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This podcast is a production of New Hampshire Public Radio.

Presidential Funerals: How and Why We Mourn Our Leaders

How do we mourn our presidents and former presidents? Where did all those very public rituals come from? And how much input does a president have in their own post-death ceremonies?

We break down the history and mystery of presidential funerals with Lindsay Chervinsky and Matthew Costello

This episode of Civics 101 was produced by senior producer Christina Phillps and mixed by Rebecca Lavoie. It was hosted by Nick Capodice and Hannah McCarthy. Special thanks to Jacqui Fulton. 

To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro. 


TRANSCRIPT

Nick Capodice: You're listening to Civics 101 New Hampshire Public Radio's show about the basics of how our democracy works. And today, in the wake of the death of President Jimmy Carter, we have a special episode about how we mourn our presidents.

Archival: But he often said, when the really tough choices come, it's the country, not me. It's not about Democrats or Republicans. It's for our country that I fought for.

Nick Capodice: Right [00:00:30] now, we are listening to audio from President George H.W. Bush's 2018 memorial service at the Washington National Cathedral. And I want you to listen to how Bush is being described as a human being.

Archival: The George Herbert Walker Bush who survived that fiery fall into the waters of the Pacific three quarters of a century ago, made our lives and the lives of nations freer, Better, [00:01:00] warmer and nobler.

Nick Capodice: Now, as the video of the memorial pans over the audience, you can see Bush's family, including his son, President George W Bush. And you also see former presidents Bill Clinton and Barack Obama and the sitting president at the time, Donald Trump.

Lindsay Chervinsky: And when he died, there was this incredible outpouring of grief, of memorials, of remembrances, people telling stories [00:01:30] about him. And they were quite laudatory.

Nick Capodice: This is Lindsay Chervinsky. She's a presidential historian and coauthor of Mourning the President's Loss and Legacy in American Culture, where she and her coauthor, Matthew Costello, explore how we remember our presidents when they die. And when she was watching the funeral of George H.W. Bush, one thing stuck out to her.

Lindsay Chervinsky: When someone passes away, you know, family or friends, they want to put the best version of that person forward. But what struck [00:02:00] us as interesting was that people who had been sometimes very critical of Bush 41. Here they were talking about how he was kind and he was decent, and his presidency represented a moment of international strength and international stability.

Archival: I believe it will be said that no occupant of the Oval Office was more courageous, more principled, and more honorable than George Herbert Walker Bush.

Lindsay Chervinsky: And that seemed [00:02:30] to say a lot more about the current political moment that we were living in in 2018 than actually necessarily him. But I think it was more a reflection of the American people's desperate desire to have a little bit more civility, a little bit more stability in our political life, a longing for a time when people on both sides of the aisle could speak to one another, even if they disagreed, and a longing for what the presidency could be.

Archival: Good [00:03:00] evening. Former president Harry S Truman died this morning at age 88.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: We are talking about how we as a nation mourn our deceased presidents.

Archival: The Associated Press is reporting at this hour that former President Ronald Reagan has died.

Nick Capodice: We're talking about the funerals themselves, but we are also talking about legacy.

Archival: With the greatest regret. Two priests who were with President Kennedy say he has died of bullet wounds.

Nick Capodice: And [00:03:30] how ceremony, tradition and media coverage around a president's death contribute to that legacy.

Archival: His aims for a better world will be carried on. The president died in harness, still working for the better world he hoped to help shape.

Hannah McCarthy: Nick, I know that we're not in the United Kingdom and we don't have monarchs, but the clearest image I have of a major state funeral is the one for Queen Elizabeth the second in 2022. The [00:04:00] logistics of that funeral, including the fact that the whole operation had its own title. It was called Operation London Bridge. Uh, it was all kind of a spectacle, and it had been planned for years with all sorts of customs that I think we think of as integral to the monarchy. But what about the United States? Do we have specific rules or rituals for mourning presidents?

Matthew Costello: There is really no uniform way to mourn a president.

Nick Capodice: This is [00:04:30] Matthew Costello. He is Lindsay's coauthor and senior historian at the white House Historical Association. And he says that while there isn't a uniform way to mourn the president, it has become a bureaucratic process, one that is folded into the federal government with plans and staff and defined roles. But it wasn't always so official.

Matthew Costello: So obviously, state funerals have evolved and changed over time. And I would say that, you know, the [00:05:00] state funerals, as we know today, are very different. If you go back in the 19th century, you know, presidents and former presidents, most of these things were just paid for and done by the families themselves.

Hannah McCarthy: We should clarify, I think a state funeral means it's run and sanctioned by the government like a state dinner. Yeah.

Nick Capodice: And these days, a state funeral is a three step process that can go anywhere from 7 to 10 days. It includes the marching of the casket [00:05:30] through the Capitol, public viewing of the casket in the Capitol rotunda, and live broadcasts of the funeral.

Hannah McCarthy: The public viewing part of the body. We call this lying in state, right?

Nick Capodice: Right. Yeah, we do state like the federal government. And we know that this went on at least as early as the 17th century in England. But funeral rites of rulers in the early days were probably more about proving that the old monarch was dead and affirming the legitimacy [00:06:00] of the new ruler. I feel like you're.

Hannah McCarthy: Saying it was political.

Nick Capodice: Matter of fact, Hannah and I do think this is something to think about as we talk about presidential funerals in the US, the business of burying a monarch where they were laid to rest, what kinds of ceremonies were performed had a lot to do with the transfer of power and the maintenance of power.

Hannah McCarthy: Okay. I'm listening.

Nick Capodice: Okay. So, for example, in the early days and I'm talking like 14th century, 15th century, the monarchy was [00:06:30] not necessarily hereditary.

Hannah McCarthy: As in the former king's son was not guaranteed the job.

Nick Capodice: Right. So the new guy in power might use the former king as political propaganda, you know. Wasn't he so great? Look, I'm just like him. Or let's say the opposite. The old king was deposed. You know, we're looking at a conqueror. Hypothetically, that conqueror might hide or destroy the body of the old king. Pay no attention to what came before me. [00:07:00] I'm the new hot ticket.

Hannah McCarthy: That is cold.

Nick Capodice: It is all part of the game, Hannah. The game of Thrones.

Hannah McCarthy: There it is. I knew we would get it in there one day.

Tyrion Lannister: Dragons do not do well in captivity.

Missandei: How do you know this?

Tyrion Lannister: That's what I do. I drink and I know things.

Nick Capodice: Also, you know, Christianity is on the rise at this time. Why not start to model kings [00:07:30] mausoleums on saints shrines?

Hannah McCarthy: That is a clever move. Basically saying to everybody. The king is godlier than you plebeian.

Nick Capodice: Exactly. So for a while there, new rulers were actually anointed as the new monarch next to their predecessor's tombs. It was a way of saying essentially Whatever he had, I have it now. Rule is a continuum that passes from one body to [00:08:00] the next. Whoa!

Hannah McCarthy: That is how you make a dynasty.

Nick Capodice: All right. To jump ahead here. The lying in state thing in what we now call the UK, had a lot of growing pains. From selling tickets to commoners to visiting hours so crowded and chaotic that in at least one case, looking at you, Queen Mary the Second, people lost their wigs and possibly depending on whether you trust the scuttlebutt, their [00:08:30] lives.

Hannah McCarthy: I bet they didn't get the royal treatment.

Nick Capodice: So the whole post-death ceremony varied from ruler to ruler as we get into the 1700s, but it tended to be less public, less ostentatious, more solemn, sometimes super exclusive, more about the eternal salvation of the soul than projecting royalty to the people. Worth mentioning here that the royal coffers were not always overflowing. In this [00:09:00] era, and giant ceremonies are expensive. Also worth mentioning from the 18th century on, even though England. Suddenly the United Kingdom is becoming a truly global power. Guess what the royals were dealing with?

Hannah McCarthy: Um. Perfecting that wave.

Nick Capodice: Enlightenment.

Hannah McCarthy: Oh, yeah. Okay, that was my next guess.

Nick Capodice: Science, philosophy, government structure, individuality, a body politic. Parliament is doing its thing [00:09:30] outside of London. Not many people are paying a lot of attention to the person with the crown. Royal pageantry, frankly, is a little much when you're just hoping the monarch doesn't mess with your plans for global domination. Then one of your best crown jewels, America, calls it quits on you and gets really powerful. And then Germany eventually becomes really powerful. And then Queen Victoria is so sad about the death of Prince Albert that she never hangs out anymore. And suddenly Hannah. Suddenly the people need a little [00:10:00] something.

Hannah McCarthy: A little show, something to bring everybody together.

Nick Capodice: Something to bring everybody together. King Edward the Seventh, Victoria's son, went pageantry everywhere and a proper Westminster lying in state for throngs of crowds to attend. So began a new era of public royal death ceremony that was trying very hard to call to mind an old era of public royal death ceremony.

Hannah McCarthy: In other words, [00:10:30] Nick, correct me if I'm wrong here, but it sounds like they are doing the exact same thing that Kings in England had been trying to do like a thousand years ago. Basically, we're telling you that we're popular and important so that you make us popular and important.

Nick Capodice: A penny for the thoughts of the crown. Right, but that feels right.

Hannah McCarthy: Okay. It seems like we do something very similar here, do we not?

Nick Capodice: Well, I don't know, Hannah. It [00:11:00] kind of depends on your point of view. Are our presidents posthumous proceedings part of a power play?

Hannah McCarthy: Say that five times fast.

Nick Capodice: Or are they about honor and national tradition, or are they both? We are going to have to leave that for our listeners to decide. Speaking of Civics 101 is about the United States, so I think we should get back on it.

Hannah McCarthy: Oh, yeah. Onward. Over the pond.

Nick Capodice: Presidential [00:11:30] funerals. At least a week of grand to do.

Hannah McCarthy: Grand to do. Put on by the federal government. That's right. So you mentioned marching the casket to the Capitol. Days of public viewing in the rotunda. Tons of press, I would guess. Also, tons of security, tons of very important invitees. [00:12:00] Even us commoners have to shell out astonishing amounts of money for our own wakes and funerals. Who is paying for the late presidents ceremonies?

Nick Capodice: The government pays for the labor, transportation and security, and the planning of a state funeral typically involves multiple branches of the military, foreign dignitaries, and coordinating with the media. It's almost like a menu of options the president's family can choose. Like that thing. I don't know if you've seen this, Hannah, where [00:12:30] a riderless horse with empty boots facing backwards in the stirrups indicates that, quote, the warrior will never ride again.

Hannah McCarthy: Seriously, is that is that something that we do that's, like, so heavy with import?

Nick Capodice: Yeah. Abraham Lincoln was the first that we know of to have it. And actually, there was a horse named black Jack who carried the boots in Kennedy, Hoover and Johnson's funerals.

Archival: Black Jack had a reputation as a hot horse. He got this [00:13:00] job because he was too wild to ride in the.

Archival: Middle of all this solemnity. There is one full horse having the time of his life.

Nick Capodice: Also, there are special seating arrangements for the services, like.

Hannah McCarthy: In a wedding where the people who know the couple best get the seats closest to them, and everyone pretends not to get their feelings hurt if they're in the nosebleed section. Is that just me who notices that?

Nick Capodice: Actually, Hannah, it's more about avoiding exactly that. You seat foreign [00:13:30] dignitaries in a certain order so that nobody can be accused of having a special seat. Everything. Every last detail is meticulously planned down to where the bugler is supposed to stand to play taps.

Hannah McCarthy: All right. But we did hear that things were not always so complicated. What did presidential funerals look like before?

Lindsay Chervinsky: When George Washington died, he had really specified that he wanted a private family [00:14:00] service. No fanfare, no military participation, no parades, nothing like that. And while his funeral was still relatively modest compared to what we've seen later, it certainly was bigger and had more pomp and circumstance than he intended, including 400 mock funerals across the country where people could attend and pay their respects and mourn. The process, often with an empty casket and an official ceremony in Philadelphia, where Congress [00:14:30] was currently positioned. So they had a funeral for him as well. So that's sort of like the first official one. Several of the presidents after that really did not have any sort of big service, even the ones that died in office.

Hannah McCarthy: That sounds a lot like what you might see these days when a celebrity dies, right? There's a family funeral, but there might be a television special or a public memorial event not necessarily connected to the family, but that is still different from a state funeral that involves [00:15:00] government bureaucracy. So hang on, which president had the first true state funeral?

Nick Capodice: That was President Abraham Lincoln, who was assassinated in 1865. Lincoln was the first president to lie in state. And by the way, this isn't just a tradition for presidents, government officials, members of the military and private citizens have also been honored this way. For example, the Reverend Billy Graham's casket was in the Capitol rotunda for two days when he [00:15:30] died in 2018. But that can only happen if both the House and the Senate approve of it. And the reason that Lincoln was the first president with this kind of official government run funeral had a lot to do with the way he died and what was going on in the US at that time.

Lindsay Chervinsky: He was shot on Good Friday. He died the next day. And then that Sunday was Easter Sunday. So there was a real religious sort of connotation to his death that he had died [00:16:00] for the sins of the nation. It was the first funeral in which the telegraph existed, so people were able to learn of his death almost immediately. And so it really did create a national experience.

Hannah McCarthy: Oh, of course. Before the Telegraph, depending on where you lived, it might take you a while to learn that the president had died. But afterward, the whole nation could ostensibly learn about it right away.

Nick Capodice: Yeah, and that made it more of a collective public mourning. [00:16:30] I think it's also important to remember that the Confederacy had surrendered to the Union just a few days before Lincoln was shot. So the country wasn't just grieving a president. They were grieving the person who ended the Civil War.

Lindsay Chervinsky: He laid in state at both the white House and the Capitol, and then he was put on a train, and he was taken throughout most of the north of the nation on his way back to Illinois, so that people could see him and express their grief and mourn. So [00:17:00] that was the first one where it was a real to do. It was a big thing. The body was moved several places. There were several opportunities for Americans across the country to witness, and it did have a national feeling because of how quickly news could spread at that point. Most presidents immediately after Lincoln did not have that type of funeral. But then I think the the rise of the state funeral as a regular experience [00:17:30] started to occur with Franklin D Roosevelt.

Archival: This nation has suffered this day a staggering loss at this moment at Warm Springs, Georgia. President Franklin D Roosevelt lies with the problems of the nation finally lifted from his shoulders stricken late this afternoon with cerebral hemorrhage. Why?

Hannah McCarthy: Franklin Roosevelt.

Lindsay Chervinsky: Franklin Roosevelt was in office for 12 years. And so for a lot of people, if they were relatively young, he was the only president they remembered. [00:18:00] And he had led the nation through the Great Depression, through the New Deal, and then through World War two. And so the concept that someone else would be president was almost kind of earth shattering in its significance and really quite scary.

Archival: Everywhere men at first say, no. It is not true. I do not believe it. It could not happen now. Not now. That is the thought of men who drive taxicabs and who sit in offices.

Nick Capodice: President Franklin Roosevelt died [00:18:30] in Georgia on April 12th, 1945, and his body traveled by train to Washington, D.C. it took four days, and hundreds of thousands of people showed up on this train's route, so it was like a giant, hundreds of miles long funeral procession. And when the casket finally arrived in D.C., about half a million people lined the streets to watch it march from Union Station to the white House.

Archival: In this hour of national sorrow.

Hannah McCarthy: Yeah, [00:19:00] I've seen footage of this. The crowd is like a wall lining the road. And aside from the music played during the procession, it's really quiet. You know, there are thousands of people and you can hear the hoof beats of the horses.

Archival: All the soldiers and servicemen in the crowd stand firmly at attention.

Archival: And now the caisson will start its solemn.

Lindsay Chervinsky: The mourning was akin to that of Abraham [00:19:30] Lincoln, because it represented this cataclysmic moment in American history. And then Truman, who who followed FDR, he had a relatively modest ceremony. But starting in sort of the 1970s, 1980s and moving forward, state funerals really have become a little bit more of the norm for presidents, even when they don't die in office.

Hannah McCarthy: What about what happens after the funeral? Are there any rules for where a president is laid to [00:20:00] rest, or what kind of gravesite it should be?

Nick Capodice: That decision is up to the family. But over the years, presidents have gotten more deliberate about making their burial sites into sort of a destination of their legacy. I'm talking about building a library or a museum, something like that on the site. Now, FDR started this trend when he decided he wanted to be buried at his Hyde Park estate in New York.

Matthew Costello: And Franklin Roosevelt is the first president to officially [00:20:30] designate a presidential library, with the intention of turning over all of his administration's records to the National Archives. National archives were created in 1934, and the plan, in his mind, had always been at some point to be buried back at his home, Hyde Park, and at some point the presidential library that was built there would house the records and artifacts and also related to his administration. And [00:21:00] and he will be buried in the rose garden adjacent to his presidential library. And what Roosevelt starts is this more recent tradition that we've seen where presidents or former presidents are buried at their presidential libraries.

Nick Capodice: And the federal government was on board with this idea, and they made it official in 1955 with the Presidential Libraries Act. This act created a system that allowed presidents and their estates to construct private libraries that were maintained by the [00:21:30] National Archives. And to be clear, the construction and operation of these libraries is not paid for by the government. A president might set up a nonprofit or something to fund the construction of the library, and once it's built, the library is transferred to the federal government, and the National Archives oversee its care when it comes to those government records. But many libraries also have events or programs that are not paid for by the government.

Hannah McCarthy: I feel like this gets [00:22:00] to the legacy question, and it sounds like in this case, that legacy is in large part the receipts. Right. Here's proof of what this person did.

Nick Capodice: Yeah. And it makes sense, right. Because after a president leaves office, all that work they did when they were president becomes property of the government. It belongs to the public. And the National Archives makes sure it's properly cataloged and preserved. So it becomes kind of a partnership.

Matthew Costello: Nixon [00:22:30] is buried at the presidential library and his family home in Yorba Linda, California. Gerald Ford is in Grand Rapids, close to where he grew up. Ronald Reagan is at the Reagan Presidential Library out in California. So some of these, you can see where it's kind of, well, they just want to be buried on, you know, near family or, uh, you know, close to their where they grew up. I mean, all that makes sense. But I think the, the decision that they make to place their presidential library where they place them also tells us [00:23:00] quite a lot.

Hannah McCarthy: So these libraries are now being constructed while a president is alive, and that president can have a major say in this tomb slash legacy repository.

Nick Capodice: And these libraries aren't just like a storage place for historical documents. Most of them have museums with artifacts and exhibits open to the public. For example, a lot of presidential libraries have a recreation of the Oval Office as it looked when that particular [00:23:30] president was in office.

Lindsay Chervinsky: Often, if they've been alive for a while after their time in office. And increasingly that is the case as presidents live longer lives post-presidency. Then our memories of their time in office start to fade a bit. What we do then think about them is how do they compare to where we are today? How do they compare to what we have seen? Did they contribute to the problems? Did they help the problems? And you know, what does that mean?

Nick Capodice: Some presidents [00:24:00] have also built institutions that allow them to keep doing their work after they leave office. Take Jimmy Carter, for example. He opened the Carter Center. That is a nonpartisan organization for international peace building, and that is next to his presidential library in Atlanta.

Jimmy Carter: I was one of the youngest surviving presidents in this century. I was only 56 years old. I had a lot of plans ahead of me for the second term that I anticipated, and I wanted to [00:24:30] figure out in my own mind, what can I do to utilize this tremendous remaining influence that I that I carry with me.

Lindsay Chervinsky: President Carter is fairly unique in that he has been able to redefine his legacy through his post-presidential work. Most presidents are not able to change what their legacy is for the American people. And that message is kind of stuck. And it makes sense because the presidency is when you have the most power, you have the biggest bully pulpit, [00:25:00] you have access to the maximum number of Americans, and you're never again really going to have that kind of influence. But for Carter, because I think he only served one term and because he was so humble, he lived a life of service. His foundation really contributed to the eradication of two major diseases and helped with international peace agreements. I mean, it's just really extraordinary work. He's been able to shift how [00:25:30] people think about him.

Hannah McCarthy: I'm sure that a lot of us have thought about what our own legacy will be, or you know, what we'll leave behind or how we'll be remembered. But this is just in another stratosphere.

Nick Capodice: You are not wrong there, Hannah. And presidents make plans for their own funerals pretty much as soon as they get elected to office these days. And there is a reason for that.

Archival: And I'll. You'll excuse me if I am out of breath. A bulletin. This is from the United Press from Dallas. President Kennedy and Governor John [00:26:00] Connally have been cut down by assassin's bullets in downtown Dallas. They were riding in an open automobile when the shots were fired at the president. His limp body carried in the arms of his wife. Jacqueline has rushed to Parkland Hospital. And if you'll excuse me, if I give some directions and we talk about.

Nick Capodice: And we'll talk more about that right after a quick break.

Hannah McCarthy: But before that break, you know, while this episode is absolutely chock full of a lot of trivia about funerals and presidents, you have no idea [00:26:30] how much we don't put in, but we have somewhere else to put it. That is our newsletter. It is called Extra Credit. It is so quick and easy to subscribe to it at our website civics101podcast.org. And not to toot my own horn here, but I actually think that our newsletter is simply one of those joys to open up and read. It's a little bit of information every other week, and it gives you an idea of what we spend the rest of our time thinking about that. Again, that website is civics101podcast.org. [00:27:00] We're back. You're listening to Civics 101. This is a special episode that is asking, in the wake of the death of President Jimmy Carter, what follows the death of a president. We've [00:27:30] covered the broad strokes of their literal wakes, their funerals, their final resting places. It seems like a modern president knows more about what their funeral will look like than Huckleberry Finn did. And, Nick, you said that there was a really good reason a president planned their funeral as soon as they get into office.

Nick Capodice: Yes. There is. It is because of the sudden, violent death of one president. Friday, November 22nd, 1963. President John F Kennedy was assassinated while riding [00:28:00] in an open top limousine in Dallas. He was 46 years old and it was his third year in office.

Archival: From Dallas, Texas, the Flash apparently official President Kennedy died at 1 p.m. Central Standard Time, 2:00 Eastern Standard Time, some 38 minutes ago.

Nick Capodice: Now, Kennedy didn't have a funeral plan in place, but two days later, more than Hundred and 50,000 [00:28:30] people had lined up for the public viewing of his casket, which lasted for 18 hours, and in the meantime officials were planning the memorial services for the next day.

Hannah McCarthy: That is a huge undertaking to pull off in such a short period of time.

Nick Capodice: Yeah, but here's the thing. That kind of rushed planning it won't need to happen again. Here is Matthew Costello.

Matthew Costello: All presidents. Now, when they're in office, they will create a state funeral planning document. [00:29:00] Part of the reason they do this is I think it was in part a lesson learned from, you know, the unexpected assassination of John F Kennedy, because this this stuff was really wasn't planned. You know, he was a young president. And, you know, obviously no one expected him to be killed while in office. I think it was a much more concerted effort moving forward to making sure that the president of the United States, whoever it was when they came into office, that their wishes [00:29:30] were known in the event that they died in office.

Hannah McCarthy: You know, with Kennedy's death in particular, his assassination is a huge part of the story we tell about him. You know, his legacy. Like you said, he had only been in office for less than three years. He was really young. And his death was violent and caught on camera.

Nick Capodice: Yeah. Matthew actually compared Kennedy's death to Lincoln's death because they both had something he called the martyr effect.

Matthew Costello: So when we think of a martyr, [00:30:00] we think of somebody who is who was killed, who gave their life in service of others, protecting others. For some presidents, it has made them more memorable. But as we've seen, that this hasn't uniformly applied to everyone. Obviously, with Abraham Lincoln, the country has been at war for four years. The Union Army is closing in, defeating the Confederacy. It appears Facts. The federal government will prevail, and [00:30:30] he's assassinated. Today, we may think of Lincoln as a universally admired and beloved and respected president, but that's how we think about him today, as opposed to how people thought about him in 1865. Now, if you skip ahead, we do have two other presidents who are assassinated James A Garfield and William McKinley. But neither one of them elicits the same kind of response as, say, you know, John F Kennedy in 1963. Kennedy [00:31:00] is a young president. He's assassinated, and he's assassinated very publicly.

Archival: In a warehouse. A sniper with a rifle poised waits. The cheers of the crowd almost muffled the three shots. The assassin's aim is deadly. The area is a swarm with police, rangers and Secret Service men. The murderer slips the net, but a few blocks away, a man is captured after he is reported to have killed a policeman.

Matthew Costello: The Zapruder film, the photographs. I mean, all of this is very, very public and very graphic and [00:31:30] it's very jarring and traumatic for many Americans. So even though Lincoln's time obviously had this larger and really profound historical context involving the Civil War, Kennedy didn't have that as much. But it was something that was it was felt so personally by everyone. And I think part of it was the imagery, the film, the fact that his funeral was held on television. I mean, everybody could watch and experience these things, and everybody [00:32:00] felt like, you know, even people who didn't like John F Kennedy or supported John F Kennedy, it seemed like there was a universal outpouring of grief for Kennedy.

Archival: The sound of the muffled drums sweeps in melancholy waves over the hushed throng, a hush broken only by a stifled sob, a murmured prayer. A whole people is lifted up in common sorrow. And ennobled in their hearts. Down this avenue of sadness they bring President John F Kennedy. Martyred hero. To lie in state under the great dome of the Capitol.

Hannah McCarthy: When [00:32:30] I think about Kennedy's funeral, I cannot help but think about First Lady Jacqueline Kennedy, later Jacqueline Kennedy Onassis. There's that unforgettable image of Jackie in the bloodstained suit standing next to Lyndon B Johnson as he is sworn in as president on Air Force One, and then later on standing next to her small children. You know, as toddler JFK Jr salutes his father's casket.

Nick Capodice: Yeah. And so much of how these things go is influenced by the spouse. [00:33:00] The funeral arrangements, the mourning period. Yeah.

Lindsay Chervinsky: The first ladies are a very interesting part of our history, because that position, of course, is not in the Constitution. So it doesn't have any written responsibilities. It doesn't have a theoretical office. And yet we of course, expect the president to have a spouse. We expect the spouse to play a role with that role is I don't think we've ever fully agreed upon, and I don't think they've ever fully [00:33:30] agreed upon, because each first lady does things a little bit different for Kennedy that that case in particular. He died in such a tragic way, and she was so instrumental to shaping what that that mourning process was going to look like and how involved the family would be.

Nick Capodice: It is remarkable how massive and logistically complicated Kennedy's funeral was considering the circumstances. The First lady had a vision, and she was able to pull it together in a couple [00:34:00] of days.

Lindsay Chervinsky: And Jackie Kennedy was not alone in in the role that she played in crafting those experiences. Most first ladies. Um, I would say on average, first ladies tended to outlive their husbands. And so the families, whether it be the wives or the spouses or the children, they do play a central role in deciding what the funeral is going to look like, who is going to be involved, where it's going to take place, what music is going to be played? Is there going to be a military component? [00:34:30] What is the messaging around the event? These are all things that first ladies and first families usually have. First say.

Matthew Costello: Oh, the former presidents will continue to revisit these planning documents. Um, you know, sometimes things change. Sometimes you decide you want different music, sometimes you decide you want different guests or you want different eulogists. So those are the types of details that can obviously shift and change over time, because we're talking about relationships or friendships or or [00:35:00] even, you know, something like the current climate, you know, something to be thinking about in terms of politics.

Hannah McCarthy: Okay. So former presidents aren't just updating, you know, their wills like some of us might. They also have to update their own funeral plans.

Archival: Ronald Reagan was the oldest former president in American history. He was 93 years old when he died. Today. He has been out of the public eye for most of the past decade, since announcing to the whole world he had Alzheimer's.

Matthew Costello: Yeah, Reagan. His last goodbye [00:35:30] to the American people was publicly announcing that he had been diagnosed with Alzheimer's in 1994. But he lives another ten years. And so this is where, you know, having President Reagan's plan pretty much ironed out. But then entrusting his wife, First Lady Nancy Reagan, and the Reagan family to ensure that President Reagan's wishes were followed and adhered to as agreed upon, or [00:36:00] if they felt that they should change things on his behalf. You know, certainly that's a situation where they could. The Reagans, generally speaking, between the two of them, I mean, they always knew the importance of performance.

Archival: It appears to an observer that after 33 years of marriage, you two are still absolutely nuts about each other. Mrs. Reagan, how do you plead?

Archival: Guilty.

Archival: Guilty.

Archival: Explain it. I mean it. [00:36:30]

Matthew Costello: And I think that was true when they were in the white House. It's true when he was governor of California.

Hannah McCarthy: I know most presidential families have carefully crafted public personas, but I think the Reagan image involved another level of cultivation. I can only imagine that that funeral was extremely detailed.

Nick Capodice: The funeral plan was somewhere between 130 and 300 pages long, and the news coverage was extensive, [00:37:00] with multiple media outlets covering hours of mourning live for almost a week straight.

Matthew Costello: The idea of creating something that was really such a spectacle that, you know, people felt like they were a participant in what was unfolding right before their eyes. I think all of that was true with President Reagan's state funeral.

Archival: It was a poignant moment in a day filled with emotion and somber pageantry, as America came to a virtual standstill to [00:37:30] mark the passing of the 40th president.

Nick Capodice: For example, after the funeral, his remains were brought back to California, where they had another service overlooking the mountains at the Reagan Presidential Library.

Matthew Costello: They're very cognizant of doing it at sunset at the Reagan Library. That really sort of, you know, the sun has set on on Reagan's time here. I mean, it was all very symbolic, I think.

Nick Capodice: In the announcement Reagan wrote in 1994 about his Alzheimer's diagnosis, he [00:38:00] said, quote, I now begin the journey that will lead me into the sunset of my life.

Matthew Costello: I think Reagan's story in particular shows just the influence of family in shaping and planning the funeral itself, but also how we've come to remember the figure in question.

Hannah McCarthy: You know, over time, it sounds like these funerals, they just keep getting bigger, they become more of a spectacle or, you know, a different [00:38:30] kind of spectacle. And maybe that is in part because we have more access to them with the advent of 24 hour news and social media. But we talked about the British traditions around the death of a ruler. And in the case of the UK, it makes a lot of sense to me because all of that pageantry and idolatry for a ruler who, you know, for a long time people thought was ordained by God worthy of worship [00:39:00] or something close to it. It's also a way to reaffirm this connection between the people and the monarchy, and, I guess, provide one last opportunity to bow before the crown. And I know that we have borrowed a lot from British tradition, but, you know, our process. Is that a little odd in a country that's not monarchical, where the leader is not the ruler, but [00:39:30] technically a member of the public, just like the rest of us?

Lindsay Chervinsky: As we think about how we mourn presidents, and especially as state funerals have become the norm and the tradition. It's worth asking whether or not it should be that way. And the reason I say that is because if anyone watched the footage of George H.W. Bush's funeral and then watched the more recent footage of Queen Elizabeth II's funeral, there are a lot of similarities. [00:40:00] And they looked often pretty close. We, you know, we have less crowds, we have less carriages. But nonetheless, there's, you know, there were a lot of things that weren't all that different. And we are not a monarchy, or at least we're not supposed to be. And when the president Dies. They do retain Secret Service protection, and, you know, they can bring in a very hefty speaking fee and often, you know, live in very nice homes. But they are supposed to be just an average citizen. They're supposed to be [00:40:30] just like everyone else. And that's what a republic means. It means that everyone is the same in theory under the law. And so by recording these enormous celebrations, all of the pomp and circumstance and all of the fanfare, is that appropriate for a republic? Is that the way things should be? Or are we sending a message that presidents, even once they leave office, are somehow something else or something different?

Matthew Costello: So [00:41:00] to talk about president's legacy in 1960, you know, it's going to vary probably, you know, by 1980, by 2000, by 2020, you'll see these changes over time a big part of that is shaped by the present moment. You know, whatever experiences that we're going through as a country, as a society, as a culture. And so in a way, even though the presidents are gone, their legacy is [00:41:30] still sort of part of that foil of reshaping and influencing American culture well into the future.

Nick Capodice: If you want more Civics 101, you can find all of our episodes and teaching materials and a whole bunch of other stuff at our website, civics101podcast.org. Music. [00:42:00] In this episode by Epidemic Sound and Chris Zabriskie, Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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Holiday Trivia: What's been on the White House Christmas menu?

In our latest edition of Holiday Trivia, a rundown of some of the quirky food, drinks, and celebratory ephemera at the White House during the most wonderful time of the year. 

Have an opinion on the pronunciation of "praline?" Send us an email!


Transcript

This transcript is AI-generated and may contain errors

Hannah McCarthy: This is Hannah McCarthy. You're listening to Civics 101.

Nick Capodice: This is Nick Capodice.

Rebecca Lavoie: And this is Rebecca Lavoie.

Christina Phillips: And this is Christina Phillips. And folks, it is barely noon and the sun already looks ready to set. There is a run on peppermint extract, probably because so many normal foods now have peppermint in them at the grocery store, and everyone seems to have stopped responding to emails, including us. Which means it's time for our annual holiday themed episode on Civics 101. So this year we are talking about food, specifically holiday food at the white House, because there is an absolute treasure trove of historical documents about how presidents past celebrated the winter holidays. Now, most of our presidents were Christian or followed Christian traditions, so this trivia is a bit Christianity centric. But as usual, the president is only our starting place, so we will be branching off from there. Now I have divided this trivia into four courses. We have drinks, appetizers, the main course and dessert.

Nick Capodice: Yes.

Christina Phillips: And before we begin, I just have one question. A little icebreaker for you. What is your opinion of fruit in chocolate? I'm thinking the chocolate orange. The cordial cherries. Rebecca, I'm getting a thumbs down.

Nick Capodice: I'm a massive fan of the chocolate orange. I think that's one of the greatest creations of humankind.

Hannah McCarthy: The chocolate orange. Especially when you leave it on your parents dashboard. And then it gets all like melty.

Rebecca Lavoie: It's so specific.

Nick Capodice: And don't you have to crack it?

Hannah McCarthy: You smack it. Yeah, well, that's if you don't leave it on your parent's dashboard. So if you before you let it melt, you can you can smash it and it'll break into slices.

Nick Capodice: So good. That was such decadence when I was a child. Like you'd get that once a year.

Christina Phillips: Oh. I'm sorry. The way you looked at me. As though I would know Hannah what you meant. You're like, you know, the way you leave it on the desk.

Hannah McCarthy: I think people universalize childhood experiences that happen more than once to them, they're like, oh, this is what kids do.

Christina Phillips: But I only asked because I hate them, and I think they're disgusting.

Rebecca Lavoie: Same. Every time I bite into like, a Russell Stover. Like one of those, like, waxy, hard things and it's like fruit flavored inside. I just like I can't.

Christina Phillips: It's like a betrayal.

Rebecca Lavoie: It's like, this is not what I consented to. When I bit into chocolate, I wanted chocolate or chocolate adjacent flavors. A chocolate covered cherry I can do only because I know it's coming.

Christina Phillips: Yeah.

Hannah McCarthy: What about, like, chocolate covered pomegranate seeds?

Rebecca Lavoie: Nope.

Nick Capodice: What? No. Where are those?

Rebecca Lavoie: It's basically just a fancy Raisinette.

Hannah McCarthy: That is composed of granite seeds.

Christina Phillips: Speaking of cherry chocolate, actually, that's a great transition to our first course drinks, we're going to talk about the favorite holiday drinks of presidents past. This will be a free for all round, meaning the first person to shout out the answer gets the point. Have any of you ever heard of something called the Cherry Bounce?

Hannah McCarthy: No, no. Is it a beverage?

Christina Phillips: It is a beverage.

Christina Phillips: Beverage. This is a favorite of George and Martha Washington. And we know that because there is a recipe from Martha's surviving papers at Mount Vernon. So here is your question. The Washington's cherry bounce was made of three main ingredients cherries, sugar, and this liquor, which is made by distilling wine.

Rebecca Lavoie: Distilling, distilling wine.

Nick Capodice: Brandy. Yes.

Rebecca Lavoie: Oh nicely done.

Nick Capodice: I like boiling it in Ireland before the snakes left.

Hannah McCarthy: Port is just fortified wine, right? Nicely done. Yeah. Well done.

Nick Capodice: I only know it because of the lion in winter.

Hannah McCarthy: Distilled wine.

Nick Capodice: Yeah.

Rebecca Lavoie: It is. It's liquor made of wine.

Nick Capodice: They used to call it Brandywine.

Christina Phillips: Oh, yeah. Yeah. And actually, whiskey was more popular as a spirit back then. But the Washingtons really loved brandy. And the recipe specifically called for ten quarts of an old French brandy, and then the juice of 20 pounds of ripe morello sour cherries and white sugar to your taste, as well as cinnamon, cloves, nutmeg and ground fermented cherry pits.

Rebecca Lavoie: That sounds great. Wow.

Christina Phillips: Yeah. How many people that's for?

Rebecca Lavoie: One!

Christina Phillips: I'm not sure.

Hannah McCarthy: I do think it's kind of cute that they call it bounce. Bounce feels like a more modern word that you would apply to food. Like to name a beverage. The bounce. What is it, the 60s. You know, like that's. Yeah. 1960s.

Nick Capodice: Everybody doing the cherry bounce.

Christina Phillips: I wish I had looked up the etymology of the word. I didn't look it up. Okay. So here is your next question. Cherry pits, along with the pits and seeds of other common fruits, are known to contain a compound called Amygdalin, which can turn into what? Poisonous substance in the body.

Nick Capodice: Arsenic?

Hannah McCarthy: No.

Hannah McCarthy: Cyanide.

Christina Phillips: Yes.

Rebecca Lavoie: Nice.

Christina Phillips: I was gonna say, Nick. You can guess again if you're.

Nick Capodice: No. I knew the second I said it. It's also like peach pits. When I used to eat them as a kid, I.

Hannah McCarthy: That's what I was thinking, too. The peach pits can be really dangerous because of cyanide.

Christina Phillips: The key here is that a lot of people think that they've been poisoned because they've eaten the stone of many stone fruits. Like if you eat a cherry pit and you crunch on it, it will release amygdalin, which is the compound that when it gets into your body, your body breaks it down and turns it into cyanide. But if you swallow a cherry pit whole, it just goes through.

Rebecca Lavoie: It just goes through you.

Christina Phillips: Yeah. And if you ferment the cherries or you cook them, that removes - that inactivates the amygdalin.

Nick Capodice: No cyanide in that cherry bounce.

Rebecca Lavoie: Amazing.

Christina Phillips: Yeah. Also, this is one of the more common calls that they get at the poison control center is for people who think that they or their children are going to be poisoned by cyanide because they just, like, swallow swallowed the pit of something whole.

Hannah McCarthy: Second only to is a watermelon gonna grow in my belly.

Christina Phillips: Yeah, exactly.

Christina Phillips: Now we are moving on to a cozier but still somewhat risky drink. So here's your next question. Several sources mentioned that this president, former secretary of State, and founding father from Virginia, loved a cocktail known as a yard of flannel.

Rebecca Lavoie: Thomas Jefferson.

Christina Phillips: No.

Nick Capodice: That's what I was gonna say.

Hannah McCarthy: No. Andrew Jackson.

Christina Phillips: Mhm.

Nick Capodice: 11 presidents were secretary of state.

Christina Phillips: Founding father, former secretary of state and from Virginia.

Hannah McCarthy: They were all from Virginia.

Rebecca Lavoie: I know right? Yeah.

Christina Phillips: Madison.

Hannah McCarthy: Ah.

Christina Phillips: Okay, so now I need you to all. I gave you all a piece of paper and a pen for this one. I'm going to give you 10s to write down three ingredients you think might be in a yard of flannel. Don't start yet. You'll get a point for each correct guess, even if multiple people guess the same thing and your timer starts now. Stop. Rebecca, I want to start with you.

Rebecca Lavoie: Mine is so dumb.

Christina Phillips: Give me your ingredients.

Rebecca Lavoie: Whiskey, rum and cider.

Hannah McCarthy: Mhm.

Christina Phillips: All right. You got rum? No, none of the other ones. So rum? Yes. You get a point. All right. Nick.

Nick Capodice: I wrote creme de menthe, creme de cacao, gin and vodka.

Christina Phillips: I'm sorry to say you got zero.

Hannah McCarthy: I wrote whiskey, apples and cloves.

Christina Phillips: Oh, that was so close. But you also got zero. Yeah.

Hannah McCarthy: So in a way, it wasn't close at all.

Christina Phillips: So you had, like, the spices. You were getting there.

Rebecca Lavoie: I just covered my bases with old timey liquors. I was just like, I'm not going to guess any.

Nick Capodice: Rum and shrub.

Christina Phillips: Nick went for four things that never should be combined together.

Nick Capodice: I would have creme de menthe with gin.

Hannah McCarthy: Oh, dude. Creme de mel.

Christina Phillips: All right, so here are the ingredients of a yard of flannel, which is not the same thing as a flannel shirt, which is also another cocktail that's more common nowadays. This is specifically the yard of flannel ale, eggs, sugar, nutmeg, ginger and rum or brandy.

Hannah McCarthy: Ooh.

Christina Phillips: So this is sort of like an old, gross version of an eggnog.

Hannah McCarthy: Honestly, I think without the ale, I would like it. But maybe the ale lends it some effervescence.

Rebecca Lavoie: Maybe the ale makes it so you don't get poisoned.

Hannah McCarthy: Maybe that. Yeah.

Christina Phillips: Speaking of eggs. Cooking eggs to at least 160°F before consuming them destroys this bacteria, which causes an estimated 26,000 hospitalizations and 420 deaths in the US a year.

Rebecca Lavoie: Salmonella?

Christina Phillips: Yes, it is salmonella. Okay, we're gonna give it to Rebecca.

Hannah McCarthy: The thing that I think I have three times a week.

Rebecca Lavoie: This is what happens when you have a paranoid Italian mother. You know, all the poisons, all the ways that your food could kill you. You're gonna get trichinosis.

Christina Phillips: And on that note, we have reached the end of our drinks course. Hopefully still alive.

Hannah McCarthy: It's so good.

Nick Capodice: Okay.

Hannah McCarthy: All right.

Christina Phillips: And the score is Hannah has one, Nick has one, and Rebecca has two.

Rebecca Lavoie: Despite knowing none of the presidents.

Christina Phillips: We are moving on to our second course, which is appetizers. So our next question will be a first to guess style question. I'm going to read facts about this food and the first person who correctly guesses it gets the point. Clue number one the Sherwin-Williams paint company color known as this Food white is described in the following way. Float into any room painted with this creamy white. It's soft green beige undertone makes this hue both stylish and calming.

Hannah McCarthy: Sorbet.

Christina Phillips: No.

Nick Capodice: I have one. Yeah. Potato.

Christina Phillips: No.

Christina Phillips: The largest of this food ever found was described by NPR as the size of a man's shoe. It was found in Denmark.

Rebecca Lavoie: Truffle?

Hannah McCarthy: Nope.

Christina Phillips: It was found in Denmark in 2014. Next clue. It is not recommended that you consume more than a dozen of this food in one day.

Rebecca Lavoie: Oysters?

Christina Phillips: Yes. Yeah.

Hannah McCarthy: Yes. Wait.

Nick Capodice: Who doesn't recommend a dozen oysters in a day?

Christina Phillips: I feel like a lot of, like health websites recommend it, like collect.

Rebecca Lavoie: All the filters. I mean, I can eat 12 dozen of them.

Nick Capodice: I had I had five dozen in one day.

Christina Phillips: One day.

Rebecca Lavoie: Yeah.

Christina Phillips: Well, you and Thomas Jefferson, who was rumored to have eaten more than 50 in 1 night while traveling to Amsterdam.

Rebecca Lavoie: No problem. For me.

Christina Phillips: The other facts I have are that humans are considered to be one of the greatest predators of this food.

Rebecca Lavoie: Which makes sense because we are the only ones who can get to get into it. You ever tried to open an oyster?

Christina Phillips: And even so, it's a relatively common food to be allergic to. I am allergic to oysters, and I also find them disgusting. So I'm like so baffled by this delicacy, which actually is not. It's sort of seen as a delicacy now. It was extremely, extremely common in the 18th and 19th century because they were everywhere, especially on the East coast. Our next questions are going to be about oysters.

Nick Capodice: Hurrah!

Rebecca Lavoie: Yeah!

Christina Phillips: Woo hoo! Who doesn't like oysters here? I knew you wouldn't.

Rebecca Lavoie: Nick, I know what we're doing for our next after-work activity.

Nick Capodice: Yep.

Hannah McCarthy: Gulp. A chewy salt water. Who wouldn't want that sometimes? Sorry. I know the rest of the people on earth love them.

Nick Capodice: No, no, you're in the majority, I think.

Hannah McCarthy: Mm.

Christina Phillips: Rebecca, this question is for you. Hmm. This river on the East Coast, once home to the largest supplier of oysters in the world, shares its name with a fictional university and a long running crime television series. Name the River.

Rebecca Lavoie: Hudson! Where the bad guys go to school.

Christina Phillips: Yes, the Hudson River. Also, the Hudson University of Law and Order and Law and Order SVU. Right.

Rebecca Lavoie: And other television shows. For instance, the governor of Montana in Yellowstone had a degree from Hudson on her wall. Wow. Interesting. It's a whole television trope.

Christina Phillips: Yeah, it's become like an Easter egg in other TV shows.

Nick Capodice: Yeah, I know that Henry Hudson, when he landed in New York, he reached and he lifted an oyster the size of a dinner plate.

Christina Phillips: Wow. Oh my goodness.

Nick Capodice: It's like a thing that happened.

Christina Phillips: Question number eight. This is for Hannah. For the low, low price of $425, you can purchase an oyster shucking knife described as, quote, unapologetically handsome, with a, quote, old world looking blade and bi color, bone and horn handle from this website, created and curated by an A-list actress who named her daughter after a fruit featured in the 1961 Harry and David Fruit of the Month Club.

Hannah McCarthy: That would be Goop.

Christina Phillips: Yes.

Nick Capodice: Yeah. What's the daughter? Fruit.

Hannah McCarthy: Apple.

Nick Capodice: Oh, I didn't know Gwyneth Paltrow.

Hannah McCarthy: Famously, everyone was like, how dare you? And now everyone's like, that's the simplest name we've heard in three decades.

Christina Phillips: It has actual letters of the alphabet in it. So, Nick, this question is for you. This bay, the largest estuary in the contiguous United States, was the location of a series of conflicts between pirates and river workers starting in 1865 and continuing for almost a century, known as the Oyster Wars.

Nick Capodice: Give me a second. Pirates. Did you say pirates and river workers? Yeah, and it's a bay. Yeah. I'm gonna ask one question, cause I'm having a tough time here. Does it have the word bay in it?

Christina Phillips: Yes it does. Do you want.

Hannah McCarthy: Me to give you one more hint?

Nick Capodice: I'm gonna do one. I'm gonna do. I'm gonna throw one out. I'm gonna say Chesapeake Bay. It is the Chesapeake Bay.

Hannah McCarthy: Yeah.

Nick Capodice: Only Bay I know.

Christina Phillips: Yeah. So what's funny about this is that once the New York harbor started to be polluted and the Hudson River was no longer a great place to get oysters, all those people started trickling down to the Chesapeake Bay and Maryland. And then later, Virginia tried to outlaw anyone fishing for oysters or harvesting oysters, whatever it's called, off of Chesapeake Bay. And then it led to a bunch of pirate conflicts that lasted almost a century. So. Wow.

Rebecca Lavoie: Incredible. Yeah.

Nick Capodice: Well, you said oysters are tremendous river cleaners, and they used a ton of oysters to clean the Hudson. Yep. And what happened is the water got so clean that all the worms which had been dead from the pollution, ate all the piers and all the wooden piers just collapsed into the Hudson because the water was clean again.

Hannah McCarthy: Yeah, you always regret cleaning things up. All those sharks. You know, everyone's like, why did we make the water habitable again?

Christina Phillips: We're done with oysters.

Rebecca Lavoie: All right.

Christina Phillips: We're moving on to eggs.

Rebecca Lavoie: Ooh.

Christina Phillips: Because I would be remiss if I didn't talk about the absolutely strange and chaotic activity that is the white House Easter egg roll. Have any of you ever been.

Hannah McCarthy: Not to the white House? Have you? No. Oh, you said it like, don't we?

Christina Phillips: I wish. I can't.

Nick Capodice: Go every year, but I try.

Rebecca Lavoie: Every time I see it on TV. And it's like all these hundreds of kids. And I was like, whose kids are those? And they're just like, going to hang out with the president.

Christina Phillips: I know the answer to that. It's a lottery. You have to apply to a lottery to get in with your kids.

Hannah McCarthy: Well, that's way cooler than just like the child of a diplomat.

Christina Phillips: Yeah, it's a lottery system. So, families, I was reading on Reddit, there's like, all these strategies, and people have applied many, many years to get into this lottery system.

Nick Capodice: You're going to tell us, but is it where you like, you roll an egg or do you just lie on the ground and roll around yourself?

Christina Phillips: So egg roll is literally you have a spoon and you roll an egg across.

Rebecca Lavoie: Like a race.

Christina Phillips: Yeah, it's a race.

Hannah McCarthy: Oh, yes. Actually I've seen I've seen...

Nick Capodice: It's like a boy with a stick, but instead it's.

Hannah McCarthy: Yeah, yeah. An egg. Yeah.

Christina Phillips: Yeah.

Nick Capodice: So stick in the hoop. The little urchin boy running around.

Christina Phillips: I had to like, type into Google. I was like, why do we roll eggs? Does anyone want to take a guess at the Christian centric origin of this tradition?

Nick Capodice: Easter. Easter rebirth?

Christina Phillips: Sort of. Okay.

Nick Capodice: So resurrection, what is the egg.

Hannah McCarthy: But the roll? You're talking about the actual rolling away the stone. Are you serious?

Christina Phillips: Oh my God, I wish I had your camera on your face, because the way you looked at me, like I know what it is.

Rebecca Lavoie: That's wild.

Nick Capodice: Three days.

Christina Phillips: Yeah. So the simplest explanation is that the egg symbolizes the stone rolling away from the entrance to the tomb where Jesus was buried during the resurrection.

Nick Capodice: Little did we know. A little boy with a spoon that got our Lord and Savior out of the cave.

Rebecca Lavoie: That is some serious pagan washing going on with that tradition.

Hannah McCarthy: That's wild. Wow.

Christina Phillips: So I'm going to ask you each a couple of questions about the Easter egg roll. And Nick, this question is for you.

Nick Capodice: All right. Here we.

Christina Phillips: Go. So the white House egg roll involves using a wooden spoon traditionally to push a hard boiled egg across the grass. However, one recent president chose plastic spoons instead. I'm talking like the plastic spoons that you get in a set when you eat at a picnic. Like the small ones. Not like a nice plastic ladle that you'd use on nonstick cookware.

Nick Capodice: Put in your kids lunch?

Christina Phillips: Yes, yes. So was it George W Bush, Barack Obama, Donald Trump or Joe Biden.

Nick Capodice: Plastic spoon.

Christina Phillips: Mhm.

Nick Capodice: I'm gonna say Donald Trump.

Christina Phillips: No, it was George Bush.

Hannah McCarthy: Oh, man. Yeah. I feel like that was the last time you could get away with using plastic in public was George Bush. That's over now. Let's all pretend we never did it.

Christina Phillips: It was George W Bush.

Nick Capodice: Did he just forget the wooden spoon? Oh, geez.

Christina Phillips: Well it happened several years in a row because I went back and I looked at some of the photos from the white House Easter egg rolls and like, at least three of his were like these small spoons, these plastic spoons that kids were trying to roll with. And then the other presidents had, like these nice wooden spoons, you know, some of them were slotted, some of them were just like a regular old, like, long wooden cooking spoon. So, yeah. Plastic spoons. If you went during George W Bush's presidency. Rebecca. Yeah. The next egg related question is for you. Okay. This is multiple choice. Oh, first lady Grace Coolidge brought Rebecca her pet. What, to the annual Easter egg roll in 1927. 27. Was it Rebecca the parrot? Rebecca the pig or Rebecca the raccoon?

Rebecca Lavoie: It was a raccoon,

Christina Phillips: Yes.

Rebecca Lavoie: Yeah I know. Yeah. The Coolidges had a lot of animals. They were super into animals. They had a farm. They made cheese.

Hannah McCarthy: Like a cow. Wouldn't it have been funny if it was a mongoose? Because they eat eggs?

Christina Phillips: Yeah, well, actually, one of Rebecca, the raccoon's favorite foods was an egg. So I'm imagining it was, like, the most exciting time. But the story of how Rebecca became a pet of the Coolidges is that there was for years, this guy known as the Poultry King from Rhode Island, who supplied the turkey at Thanksgiving to the presidents. And then he died. And I think there was sort of a power vacuum of like, who gives the president turkeys? And so other people would send other things to be like, well, maybe now the tuition will be, you know, quail or chicken. And so one year Coolidge received a raccoon and he was like, I don't want to eat this. And then First Lady Grace Coolidge was like, well, now she will be my pet.

Nick Capodice: Oh, wow. That's a nice little tale.

Christina Phillips: Hannah. Yes. This question is for you. Okay. There is something called the American Egg Board. Are you familiar with this?

Hannah McCarthy: I am now.

Christina Phillips: It is a commodity checkoff program, so it's like, sort of like a lobby. But it's promotes one type of product. It's not supposed to be.

Hannah McCarthy: Promoting the Cotton Board or like. Yeah, wear cotton. I always thought that was so interesting.

Christina Phillips: Yeah.

Nick Capodice: The touch, the feel of cotton.

Rebecca Lavoie: It's beef. It's what's for dinner.

Hannah McCarthy: Yeah, well.

Christina Phillips: The American Egg board had the incredible edible egg.

Archive: All you do is heat and eat eggs. Don't run out. The incredible edible egg.

Christina Phillips: And they were also in charge of overseeing the donation of over 30,000 hard boiled, dyed eggs to the white House egg roll every year. So they got into a little bit of controversy when, in the early 20 tens, the American Egg Board launched a secret two year investigative and marketing campaign against a company making a vegan version of what condiment that traditionally contains egg yolk mayonnaise.

Hannah McCarthy: Yes.

Nick Capodice: Wow.

Hannah McCarthy: So we've launched an investigation. How dare they? Yeah, or like, they can't call it mayonnaise. Maybe.

Christina Phillips: Well, yeah. So they they investigated. And then they also sent out a marketing campaigns about how great mayonnaise is with eggs. And they also were like, you can't call it mayo because it's not mayo. And this was a company called Beyond Eggs and it was just mayo. That's the name of the mayonnaise.

Hannah McCarthy: Milk. Big milk is like you can't call, you know any nut milk. Milk. Mhm. You spell it with a Y.

Nick Capodice: Really?

Hannah McCarthy: Really.

Nick Capodice: Oat milk is oat milk.

Hannah McCarthy: THere's a whole thing opposed to any company making nondairy milk being allowed to call it milk with an I.

Christina Phillips: Well, apparently the Department of Agriculture, which is supposed to oversee this board and how they're spending money. They launched an investigation against them, and they found out that there were email exchanges putting hits out on the guy who invented just mayo. Wow. And they were like, oh, no, no, we were just kidding. It was just a joke, a funny joke.

Hannah McCarthy: Wow. Yeah.

Christina Phillips: We have reached the end of the appetizer course, and our scores are as follows. Hannah, you have five. Nick, you have two. Yeah. And Rebecca, you have five. Wow.

Hannah McCarthy: Yikes.

Nick Capodice: Is it going to be possible for me to make up this deficit?

Christina Phillips: Yes, I believe so. But before that, and before we get to our main course, we are going to take a quick break.

Christina Phillips: All right, we're back. This is Civics 101 we are doing holiday meal trivia at the white House and we have reached our third course, which is our main course. So I had this idea to talk about different ridiculous meat courses served during the holidays, and then quickly found that there is nothing like wild and exciting about meat courses during the holidays. It's usually like ham or turkey. So I decided I would go with something else that's a staple of dinner at the white House. And this is the humble potato. So we are going to trace the potato through three presidencies. And I will ask each of you questions individually, starting with you, Rebecca. All right. In a celebration for Saint Patrick's Day, a dinner hosted by this president and his first lady, one of the things on the menu was new potatoes with sour cream and chives. Invited guests included Faye Dunaway, who had recently starred in The Movie Network and would next year go on to star in Mommie Dearest with actress Joan Crawford. Who is that? President?

Rebecca Lavoie: Um. Mommie dearest. I know, I know, it came out like in the 70s. Late 70s, I think. Um, I am going to say Jimmy Carter.

Christina Phillips: It is Jimmy Carter. Yes. Yeah.

Nick Capodice: Well done.

Christina Phillips: And my other clues were this president is the longest lived president in U.S. history, and also the first to be born in a hospital. Huh? Go, you. Jimmy Carter. So this meal was called America's Irish Experience. And it also included creamed oysters and a pastry shell, sliced sirloin of beef and Irish soda bread. My next question. This is for anyone. What are new potatoes?

Hannah McCarthy: I used to know my father would be so ashamed.

Nick Capodice: Oh, did you harvest them earlier? And is that why they're.

Christina Phillips: That's exactly right. They are new potatoes because they have a thinner skin, smaller size, and are moister and have a sweeter flavor. So you got that one, Nick?

Nick Capodice: Nicely done. Well, that was generous of both of you to let me have it.

Hannah McCarthy: You know, you had it.

Christina Phillips: All right, Hannah, next question is for you.

Hannah McCarthy: Okay.

Christina Phillips: Jimmy Carter's home state is Georgia, which is where this fast food restaurant known for, among other things, their waffle fries, was founded.

Hannah McCarthy: Uh, well, I know a place that serves waffle fries. That would be chick fil A.

Christina Phillips: It is chick fil A.

Nick Capodice: Okay. All right.

Christina Phillips: Yes. So chick fil A didn't actually introduce the waffle fries until 1985. Which brings us to Reagan. The next president in our little history of potatoes and three presidencies. Now, on Christmas Day in 1981, Reagan wrote a note in his diary that said the following. Earlier, a letter arrived from Brezhnev. It seems we're intervening in Poland, and he's upset about it. I suggested that in our reply, we remind him that we are only suggesting the Polish people be allowed to have a voice in the kind of government they want. Now, of course, Brezhnev was the leader of the Soviet Union during this time, and the US had released a number of pro-democratic opposition messages in support of the Polish people. Reagan and Brezhnev never met in person, but they exchanged a bunch of letters that are all kind of interesting and funny. Nick, this question is for you.

Nick Capodice: Sure.

Christina Phillips: Reagan, who also made an effort to cultivate relationships with the Polish American community, proclaimed October National Polish American Heritage Month. Another person Reagan exchanged letters with for a number of years was this Polish and Italian American pianist, singer and actor who, at the height of his fame, was said to be the highest paid entertainer in the world.

Nick Capodice: Wow. This is fascinating. Polish singer and pianist.

Rebecca Lavoie: I think you said Polish, Italian.

Christina Phillips: Polish and Italian.

Nick Capodice: Polish and Italian. American. So this person was born in the United States, but he's of Polish and Italian heritage.

Christina Phillips: Mhm.

Christina Phillips: He was played by Matt Damon in a movie on HBO a while ago.

Nick Capodice: Wow. Do you guys know who this is?

Rebecca Lavoie: And I have a I have a feeling I do.

Nick Capodice: Is there one more clue?

Christina Phillips: One more clue?

Hannah McCarthy: I think I know who it is.

Christina Phillips: Uh, I don't know if this helps, but my other clue is that he gave the Reagans a chocolate piano one time.

Nick Capodice: Oh, yeah. Liberace?

Hannah McCarthy: Yes, yes. Nicely done.

Nick Capodice: Good job, you guys, for knowing that before.

Rebecca Lavoie: Nicely done.

Hannah McCarthy: My. Like most of my young life, I thought Liberace was a composer from, like, the 18th century.

Christina Phillips: I wonder if he did that on purpose.

Hannah McCarthy: Well, now I know. Though we.

Nick Capodice: Though he hoved his mother.

Hannah McCarthy: He really did. Yeah.

Christina Phillips: So we're still in the Reagan era. All right. This question is for anyone. Reagan was invited to the American Polish Festival in Doylestown, Pennsylvania, in 1984, and a statue of him and Nancy. Doing what? Stands in Doylestown today.

Rebecca Lavoie: The mashed potato. The dance.

Christina Phillips: No, no. Oh, I wish it was. Wouldn't that have been great?

Hannah McCarthy: Mashing potatoes together?

Christina Phillips: Nope.

Christina Phillips: Eating potatoes.

Hannah McCarthy: Oh, just eating. Eating potatoes.

Nick Capodice: That's it. It's just eating a potato.

Christina Phillips: Eating a potato pancake.

Hannah McCarthy: Okay, so specifically eating a potato pancake.

Christina Phillips: But what's funny is that the sculptor did not want to put the potato pancake in the statue because he thought it would block Raegan's face. So it's just them sitting at a table, and Reagan is holding up his fingers as though he's about to eat a potato pancake. But there's no potato pancake there.

Hannah McCarthy: There's no potato pancake there. It's the absence of the pancake that calls you to put it in there with your mind. Right? The potato pancake.

Nick Capodice: That he did.

Rebecca Lavoie: Theater of the mind.

Nick Capodice: It's the notes they don't sing. Ceci n'est pas une pomme de terre. Pancake.

Christina Phillips: We're moving on to Bush, H.W. Bush, to be specific. This is our third president in this presidential potato history. President George H.W. Bush apparently loved potatoes and couldn't get the quality potatoes he wanted at the white House, to the point where the first lady, Barbara Bush, apparently complained to the governor of Idaho at the time, Cecil Andrus, and he coordinated with the white House chefs to send a bunch of Russet Burbank potatoes for the president to enjoy. Idaho, of course, is the largest producer of potatoes in the United States. For this question, I'm going to go around and ask each of you to name one of the four other states that round out the top five in potato production. Rebecca, you waved your hands, so you first.

Hannah McCarthy: Maine. No. Oh.

Christina Phillips: Nick.

Nick Capodice: California. No. Oh, it's so big.

Hannah McCarthy: Uh. Uh. Ohio.

Christina Phillips: No.

Rebecca Lavoie: New Jersey.

Christina Phillips: Nope.

Nick Capodice: Washington state.

Christina Phillips: Yes.

Hannah McCarthy: Oh, nice. Yeah, I can, like, see it on a bag of potatoes.

Rebecca Lavoie: That's Idaho.

Hannah McCarthy: No no no no no. It's not Idaho. It's not Idaho. Vermont?

Christina Phillips: No. Wisconsin. Colorado and North Dakota. Oh, Vermont was so far off.

Hannah McCarthy: I'm sorry. Rebecca thought it was me, and I was like, maybe it's close to me.

Nick Capodice: Grew five potatoes last year and the Green Mountain State.

Christina Phillips: Okay. And finally, what potato related gaffe did Bush's vice president Dan Quayle make in 1992?

Rebecca Lavoie: Spelled it with a e.

Nick Capodice: Misspelled it.

Christina Phillips: I think it's Rebecca. What?

Rebecca Lavoie: I was specific, I said, spelled it with an e.

Nick Capodice: I said misspelled.

Rebecca Lavoie: Okay.

Nick Capodice: I didn't know the answer. Technically, he added the e.

Rebecca Lavoie: That's right. Yes.

Christina Phillips: So he was at a spelling bee, and he told a student that the student had spelled potato wrong and corrected him by saying it was spelled p o t a t o e.

Hannah McCarthy: Oh, dear.

Nick Capodice: He drew it on a chalkboard. He went up and he said, no, you're missing a letter. And he drew.

Hannah McCarthy: Oh, that's even worse.

Nick Capodice: Oh, that's really bad. Isn't it? Our state vegetable in New Hampshire. I'm potato. The white potato.

Christina Phillips: Our state food is boiled dinner.

Christina Phillips: Yeah.

Rebecca Lavoie: Wow. Don't get me started on that.

Christina Phillips: Hannah, you have six points. Nick, you have six points. Nice. You have caught up, Rebecca. You have seven points.

Rebecca Lavoie: This is unprecedented.

Speaker6: No.

Christina Phillips: Heading into a very close final round, we have reached our fourth and final course, which is dessert. This is my favorite part of the meal. And also my favorite part of every trivia I write for Civics 101. This or that?

Hannah McCarthy: Are we ready? Yeah. Yeah.

Christina Phillips: Nick looks thrilled.

Nick Capodice: I love this and that.

Christina Phillips: This or that.

Hannah McCarthy: Say it.

Nick Capodice: Isn't a thing, is it? I don't even know what it is.

Rebecca Lavoie: This or that. You can get with this, or you can get with that.

Hannah McCarthy: Exactly.

Christina Phillips: Over the years, many first families have had desserts named in their honor. They may be recipes that the first family became known for enjoying. Or maybe they had a recipe for or it reflected the political attitude of the time. So a dessert that evokes a presidency. I have examples of both, but given that it is the holiday season, I would be remiss if I didn't sneak in one of my favorite seasonal joys, which is the absurdity of perfume marketing. And I know that fragrance is a year round business, and it's a very complicated and historically important one, but for some reason, the marketing around perfumes in the holiday season always reminds me of how weird our preferences for what we want to smell like are, and how we try to sell those smells, especially when you can actually sniff it. So I'm going to read you a list of ingredients, you need to decide if the things I list for this or that describe the ingredients of a presidential dessert, or the fragrance notes of a perfume.

Rebecca Lavoie: Okay.

Christina Phillips: And I will go around the room.

Hannah McCarthy: Okay.

Christina Phillips: Hannah, this one is for you. Vanilla. Pineapple. Apricot rice.

Hannah McCarthy: I'm gonna have to go with that as a dessert. Yes. Nice.

Christina Phillips: It is a dessert.

Nick Capodice: Some sort of rice pudding.

Rebecca Lavoie: It's the Condoleezza Rice pudding.

Hannah McCarthy: Ooh.

Christina Phillips: It's actually. The name is a little lamer than that. It's Jefferson's apricots and rice.

Hannah McCarthy: Plus pineapple in parentheses. Pineapple, apricots and rice.

Rebecca Lavoie: You can say a lot about Jefferson, but you can't say that he's good at naming desserts.

Christina Phillips: Actually. So what's funny is it wasn't named by him. It was actually created long after his death. But it was named by a guy who was sort of famous for putting certain foods on the map by naming them after people. So this was created by Chef Charles Ranhofer, who once worked at New York City's famed Delmonico's restaurant, which is like a huge legacy in the United States. It's been around since 1837.

Nick Capodice: First restaurant in New York City.

Christina Phillips: And Ranhofer is credited with putting the dessert baked Alaska on the map. Yep, I've always wondered.

Hannah McCarthy: I thought that was going to be one of the questions.

Christina Phillips: Yeah, well, actually, so I do have a bunch of facts about Baked Alaska if you want them. Yeah. So it was originally called the Alaska. Florida people thought that was because it was like hot and cold. Do you guys know what a baked Alaska is?

Rebecca Lavoie: It's like a basically a fried ice cream situation. Like ice cream inside a thing.

Hannah McCarthy: They light it on fire.

Christina Phillips: Yeah, yeah. So it's ice cream. It's like an ice cream cake. And then it's frozen super solid, and then it's covered in meringue, which is egg whites, and then it's blowtorch to give it.

Hannah McCarthy: A burnt so you don't light it on fire. I mean, you.

Rebecca Lavoie: Cherries Jubilee, Jubilee, Bananas Foster.

Hannah McCarthy: That's what I'm thinking. Yeah, but I want some tableside flames. Yeah. Me too. I never had that in my youth.

Christina Phillips: Tableside. Like mini blowtorch work?

Hannah McCarthy: No.

Nick Capodice: I want something to just light the sky.

Christina Phillips: So the recipe can be traced back to a thing called the Norwegian omelet, which was created at the 1867 Paris World's Fair as a way to show off the discovery of low thermal conductivity of eggs. Part of the key of the baked Alaska is you can heat up the eggs, and they still retain their shape. And the guy who discovered that Benjamin Thompson actually lived in Bavaria, but the chef who created the dessert thought Bavaria was in Norway instead of Germany. So that's why it's called the Norwegian omelet. And by the way, Thompson, who was born in the Massachusetts colony and eventually married a woman whose family owned most of what is now Concord, New Hampshire. He was a loyalist during the Revolutionary War. And so he went to Europe, and he was living and working in Bavaria, where he helped cultivate potato farming there.

Hannah McCarthy: Nice.

Wow. Full circle. Nick.

Christina Phillips: This one is for you. Is it an ingredient to a dessert or a fragrance? Molasses. Ginger. Cinnamon. Sugar. Beef drippings.

Nick Capodice: Mhm. Now, I would eat the heck out of this. And I'm trying to think of who would want beef drippings in a scent besides me.

Hannah McCarthy: I didn't say.

Christina Phillips: It was perfumes. It could be colognes.

Hannah McCarthy: It could be a Cologne.

Nick Capodice: Right. Mhm. Just because the beef drippings and all those delicious things and like a big dessert with some beef in it, I'm just going to say it's a recipe.

Christina Phillips: It is a recipe. Yes.

Nick Capodice: Kevin what is it. I want to eat it.

Christina Phillips: This is Dolley Madison's gingerbread.

Nick Capodice: She would use some beef drippings in a gingerbread.

Christina Phillips: Rebecca. Mm. Cinnamon. Tonka bean. Vanilla praline.

Rebecca Lavoie: Praline.

Christina Phillips: Praline.

Rebecca Lavoie: Praline. Is that how you say it?

Christina Phillips: Yeah, that's how it's said.

Nick Capodice: I wondered how that was going to get.

Hannah McCarthy: I thought it was praline praline. I also said raccoon. Everyone in this room says raccoon.

Rebecca Lavoie: I say raccoon.

Nick Capodice: I believe in New Orleans, they say praline.

Rebecca Lavoie: I think it's like pecan praline. I don't know, but I say praline praline.

Christina Phillips: Huh? Cinnamon.

Rebecca Lavoie: Huh?

Christina Phillips: Tonka bean and vanilla.

Rebecca Lavoie: Well, I'm gonna just throw this out there. A praline is like a made up thing that, like, you make. So I don't think that that's a perfume smell. So I'm going with dessert.

Christina Phillips: It's a perfume. Oh.

Hannah McCarthy: The tonka bean was a dead giveaway. Tonka bean? Tonka is only in perfume. I think.

Christina Phillips: You also. So the praline is like a baked food, so it almost makes more sense that it would be described as a perfume note.

Rebecca Lavoie: I don't I don't agree.

Hannah McCarthy: Yeah. Sort of a caramelly.

Rebecca Lavoie: Textural note for ice cream is what it is.

Christina Phillips: Exactly, exactly. No, I disagree with you.

Nick Capodice: If we do a call out to ask listeners if it's pronounced praline or praline, I'm gonna bet you guys five bucks. Linda. Monk, are you listening? Tell me how we messed up properly, please.

Christina Phillips: So this is a perfume called Angel's Share by Kilian. And here are the scent notes. Opening with cognac oil upon a bed of oak. Absolute, cinnamon essence and Tonka bean. Absolute. The scents long lasting notes of sandalwood, praline and vanilla. Make for a delicious finish, a rare concoction only angels should experience.

Nick Capodice: Okay, well, the Angel's Share is a booze making term. It's for the whiskey that evaporates from the barrel. And then. So the angels drink it.

Christina Phillips: Hannah? Yes. Pistachio. Cardamom. Peanut. Saffron.

Hannah McCarthy: I was with you until you said peanuts. Mm. Peanut?

Christina Phillips: Yeah.

Rebecca Lavoie: Perfume known as Jif.

Hannah McCarthy: Yeah. I'm gonna say that's a food.

Christina Phillips: It's a perfume.

Hannah McCarthy: Oh a perfume.

Nick Capodice: Who wants to smell like a peanut?

Hannah McCarthy: All right.

Christina Phillips: Luscious Perfume by French Avenue opens with a vibrant and captivating fusion of bergamot, pistachio and cardamom. The creamy, subtly sweet aroma of peanut adds an enticing gourmand element. Nick. Mm. Salt. Caramel.

Nick Capodice: All right.

Christina Phillips: Popcorn. Vanilla.

Nick Capodice: This is hard. I am. I just. No one would want to smell like popcorn. I'm gonna say a food because I don't want anyone smelling like popcorn.

Christina Phillips: Okay, so if you had to describe what food this would be. Salt, caramel, popcorn and vanilla.

Nick Capodice: Like a like an old fashioned caramel corn kind of dish. Like you'd get for Christmas.

Rebecca Lavoie: Is it a popcorn ball.

Christina Phillips: Or it's House of Ode's what about pop! Unveils a crunchy salted popcorn that is then enveloped in delicious caramel. This is the magic of an encounter rendered sublime by a woody signature, which bestows an unprecedented persistence upon the fragrance.

Rebecca Lavoie: God darn it!

Hannah McCarthy: An unprecedented persistence.

Rebecca Lavoie: Nevertheless.

Nick Capodice: Yeah. Don't want it there. And it just keeps showing up.

Hannah McCarthy: Wow.

Christina Phillips: All right. Rebecca? Yeah. Pineapple. Pistachio. Marshmallow. Vanilla.

Rebecca Lavoie: I'll tell you what that sounds like. It sounds like ambrosia salad. So I'm going to say it's a dessert.

Christina Phillips: Well.

Hannah McCarthy: Did you make it?

Hannah McCarthy: I haven't had this since my grandmother was with us.

Christina Phillips: With us? I have brought us all ambrosia. Ambrosia salad, aka Watergate salad.

Rebecca Lavoie: I love it. Wait, this.

Hannah McCarthy: Is what the Watergate.

Rebecca Lavoie: Well, Watergate salad is the green version of this.

Christina Phillips: Yes.

Rebecca Lavoie: The Watergate salad has the has the pistachio pudding in it. You are from.

Hannah McCarthy: Normal, so that makes sense.

Rebecca Lavoie: And ambrosia salad does not have the green, but it is one of my favorite holiday foods. People will say it's so gross, but I love it.

Hannah McCarthy: No, I love it too. It's so nostalgic for me. Christina, thank you.

Christina Phillips: So here's the thing. So first, yes, this is ambrosia salad, but it's pistachio pudding. Marshmallows, pineapple. I got the wrong pineapple. It's like shredded pineapple. So okay. It has the texture of hair. So. I'm sorry.

Rebecca Lavoie: It's still real good. All I taste is a very marshmallow forward.

Hannah McCarthy: Yeah. Oh my God. Wow, that. Whoa! Oh, wow.

Christina Phillips: So while you enjoy, do you want to hear the history of the Watergate salad, please?

Hannah McCarthy: Yeah. Okay.

Christina Phillips: It was not prepared at the Watergate Hotel, as some people think. But it can be traced back to a woman named Christine Hatcher in the Hagerstown, Maryland. The Morning Herald in September 1974. It was getting really popular. People were calling it the Watergate salad. And some people theorize that it was a way to keep the memory of Watergate alive, since it was such a popular dessert during that time period. So it was named the Watergate salad as like a hey, don't forget about Watergate. Eat this pistachio.

Nick Capodice: Wow.

Christina Phillips: Marshmallow pudding.

Rebecca Lavoie: Is it a salad or a dessert? That's the question. Some people put mayonnaise on that. Nasty. Why? Because they do. Because people are gross. That's no offense, gross people who hear me say that.

Christina Phillips: I wonder if it would be better with just mayo.

Christina Phillips: All right, so the final score is Hannah, you have seven. Nick you have seven. Rebecca you have eight. Yes.

Hannah McCarthy: Very well done.

Rebecca Lavoie: It's like I'm like a golden retriever, I'm very food motivated.

Hannah McCarthy: What's it like at the top. Rebecca.

Christina Phillips: That brings us to the end of our holiday food at the white House. Trivia. Thank you all for being here.

Rebecca Lavoie: Especially me.

Christina Phillips: And some parting advice. Make sure to ferment your cherry pits. Cook your eggs. Don't eat more than a dozen oysters in one sitting. And of course, don't break into the Democratic National Committee headquarters to plant listening devices unless you want a pudding named after your actions.

Hannah McCarthy: Well done. Christina. That was so fun.

Nick Capodice: The perfume I wear. They don't. They don't say. You can always have maximum confidence in the original odor protection of Speed Stick deodorant.

Christina Phillips: This episode of Civics 101 was produced by me. Christina Phillips, Nick Capodice and Hannah McCarthy are our hosts. Rebecca Lavoie is our executive producer and the one who edited this episode. Music in this episode from Epidemic Sound and Civics 101 is a production of New Hampshire Public Radio, NPR. Richard Nixon ate cottage cheese with ketchup. There we go. That's my tongue twister. Um, okay.


 
 

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This podcast is a production of New Hampshire Public Radio.

How do tariffs work?

President-elect Donald Trump has said, "the most beautiful word in the dictionary is tariff, and it’s my favorite word." So what are they? Why might the United States raise or lower a tariff on goods from another country? How has America used tariffs throughout our history? And how might Donald Trump's proposed tariffs affect the cost of goods in the US?

Taking us through tariffs is Dr. Shannon O'Neil, senior vice president and director of studies at the Council on Foreign Relations.


Transcript

Archival: Trump says, quote, on January 20th, as one of my many first executive orders, I will sign all necessary documents to charge Mexico and Canada a 25% tariff on all products.

Archival: When you put a tariff on, it is not that the other country gets taxed per se, it's that the cost gets pushed on to the consumer. Here in the United States. That's how it works, Christine.

Archival: We're seeing the markets already reacting. But talk to us in terms of what goods, what industries, what kind of impact it's going to [00:00:30] have on Americans.

Archival: Just about everything you touch.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today, at the behest of several listeners, including a good many social studies teachers, we are talking about tariffs. And yes, before we begin, tariffs are about money.

Hannah McCarthy: You kind of hate talking about money, don't you, Nick?

Nick Capodice: I do Hannah. I hate it, and every time I admit on this show that economics always make [00:01:00] my eyes glaze over a little bit. I get this well-intentioned email saying, well, Nick, you really should pay attention to finances. And that's absolutely true. And I should have flossed a lot more when I was a kid. That said, I now love learning about tariffs. My eyes have cleared up and I hope by the end of this some of you all are in the same boat.

Hannah McCarthy: All right, let's do it. Start at the top. What are tariffs.

Shannon O'Neil: So tariffs are basically taxes.

Nick Capodice: This is Doctor Shannon O'Neil vice president [00:01:30] at the Council of Foreign Relations and author of The Globalization Myth.

Shannon O'Neil: They're just like the taxes that you pay when you go to the grocery store or when you get your bill at a restaurant, the tax that's put on the bottom, the difference is a tariff is a tax on things that are coming from outside the country. So think of it as a sales tax, but it's for things that are imported into the United States.

Nick Capodice: I want to add here that there are also export tariffs, but those are not what we're generally referring to specifically in this news cycle. Today [00:02:00] we are talking about import tariffs.

Hannah McCarthy: Okay. And when it comes to these import tariffs do you think that you could give me a hypothetical. Like what does it actually look like.

Nick Capodice: Absolutely. Sure.

Shannon O'Neil: So for example there are terrorists that are put on what economists would call finished goods. So that is when a car comes in from Mexico or comes in from Japan, it could have a tariff on it. It could be 2%. It could be 20%.

Hannah McCarthy: Okay. I'm following here. Let's say it's a car that comes to [00:02:30] America from Japan, like a Mazda miata or something.

Nick Capodice: All right, so the Miata, the Mazda miata is created in Japan. It is sold to someone in the US, an importer, for $20,000. So if there is a 20% tariff on cars from Japan, that means instead it costs $24,000. That extra $4,000 goes right to the US government.

Hannah McCarthy: And who pays that money? Who has to actually give that 4000 to the [00:03:00] government as.

Nick Capodice: An excellent question. It's one I wondered as well. The importer. Does the company or person who buys the car from Japan to sell somewhere down the chain? That is, who pays the $4,000? It is collected by a customs official at one of our 300 plus ports. People in other countries do not pay the tariff.

Archival: We're going to have 10 to 20% tariffs on foreign countries that have been ripping us off for years. We're going to charge them [00:03:30] 10 to 20% to come in and take advantage of our country, because that's what they've been doing for nothing.

Nick Capodice: Now, president elect Donald Trump has said on numerous occasions that he will impose tariffs and make other countries pay more. But again, it is the importer, the person in the US, not in the other country, that pays the tariff. And furthermore, tariffs don't just affect someone selling stuff made in other countries. It affects a ton of stuff [00:04:00] made right here in America.

Shannon O'Neil: You also see tariffs on things that go into the making of things here in the United States. So that could be, for instance, in your local bakery, they're making chocolate chip cookies. Well, you know what. We don't grow cocoa beans here in the United States. So those cocoa beans are coming in from another country and you could have a tariff on them. We also don't grow vanilla beans. So if you have vanilla in your cookies or cinnamon in your cinnamon rolls, those two are likely coming from abroad and are going to your local bakery that mixes them [00:04:30] in and makes your favorite treat.

Hannah McCarthy: Do we currently have any tariffs on vanilla beans?

Nick Capodice: Well, Hannah, to know that we're gonna have to check the old handy dandy harmonized tariff schedule. This is the document that lists the tariff rates for every single thing that is imported into the United States. Now, to be clear, the BTS doesn't set those rates. This is just the database to get an idea of how much it will cost to import any given item. This is a thrilling 4000 page document [00:05:00] that anybody can look up, and vanilla sits right there on the page, nestled between ground pimento peppers and cinnamon. So it says there are no current tariffs on vanilla bean or crushed. And determining tariff rates is an art. It's a science. The US Customs and Border Protection website, they give the example of a wool suit. It says that somebody classifying how much it will cost to import needs to know. Quote does it have darts? [00:05:30] Did the wool come from Israel or another country that qualifies for duty free treatment for certain of its products? Where was the suit assembled? Does it have any synthetic fibers in the lining? And seriously, Hannah, anything you can imagine and it's tariffs are in that document. Handmade lace bagpipes primate meat.

Hannah McCarthy: Primate meat?

Nick Capodice: Primate meat! Primate meat has a 6.4% tariff, by the way, half as much as handmade lace. Interestingly

Hannah McCarthy: Tell me that someone [00:06:00] has made a board game about this.

Nick Capodice: How about I tell you that future tariffs might impact board game costs?

Hannah McCarthy: All right, another worry for another day. Uh, Nick, why do we have tariffs in the first place? Why would we have a high tariff on handmade lace and none on vanilla beans?

Shannon O'Neil: So there are various reasons why one would put tariffs in. One is because you want to make those things here in the United States.

Nick Capodice: You know, I picked the handmade lace [00:06:30] thing because I thought it was pretty funny. But it works. As an example, part of the reason we have that tariff is the US wants people to buy handmade lace made here in the good old US of A, and naturally that sentiment extends to things that are a little more important in our everyday life.

Shannon O'Neil: We decide, you know, we want to make semiconductor chips because we want to have that technology here and we want to have a capacity here in case other people stop selling to us. That will [00:07:00] have the chips to have laptops and iPhones and, you know, Department of Defense fighter jets and things like that. That's one reason to have them.

Nick Capodice: And to that point, Congress in 2018 set some pretty high tariffs on things like electric cars, solar cells and semiconductors made in China, specifically.

Hannah McCarthy: Because we are developing the ability to make electric vehicles here in the United States. So putting a high tariff on electric vehicles from a country that makes them for [00:07:30] a much lower cost and sells them at a much lower cost, can support the American electric car industry.

Nick Capodice: Absolutely right. And here's reason number two for tariffs. Tariffs used to be the way that we did things in the United States from the 1800s until the end of World War two. We espoused a protectionist philosophy.

Hannah McCarthy: Protectionist, I'm assuming, because we were still a fairly infant nation. We were trying [00:08:00] to get our feet under us. And when it comes to high tariffs, I'm assuming that supported our industry, right. It stopped us from relying on other countries for goods, which helped us to grow.

Nick Capodice: Exactly.

Shannon O'Neil: So tariffs were one of the things that the US government long ago used to raise money. We were a different economy then. We were a very agricultural based economy. So we sold lots of cotton and other agricultural products to more developed, more sophisticated economies in Europe. At [00:08:30] the time, we imported it from the UK. At the time, Britain, or we imported it from countries across Europe. So we wanted to protect our industries. So we put lots of tariffs on there where it would be 50 or 100% more expensive to import British made cloth in order to create a cloth industry here in the United States. That's one example. We did it too, with basic machinery. You think about all kinds of, you know, wrenches and hammers and things like that, that to they at the time were better at making iron than we were that putting [00:09:00] together, you know, various chemicals and the like. And so we protected those industries to encourage companies or inventors and the like to come here and, and set up those industries here so those industries can prosper. The challenge is if you put lots of tariffs on particular economies, is that then lots of other economies put tariffs on you. And so it's very hard for those goods that you make here, whether it's cloth or it's hammers or things like that back in the day, or [00:09:30] whether it's semiconductor chips today or iPhones or other sophisticated products that the United States is really good at making. It's hard for us to sell to the other people because they put tariffs on our goods and make them much more expensive when we try to sell it to consumers around the world.

Hannah McCarthy: Now, you said we had this protectionist philosophy Until World War two. How did the war change? The way we approached tariffs?

Nick Capodice: Well, after World War Two and continuing on [00:10:00] through the Cold War, there was a very clear us versus them mentality. And economists shifted to a free trade model. Capitalist countries could sell stuff to each other without being hindered by tariffs. America had a pretty well-established industry at this point, so now it was time for everyone to get rich selling stuff to each other.

Hannah McCarthy: And Nick, we're talking about tariffs right now because president elect Donald Trump has said that he [00:10:30] will bring them back in a big way.

Archival: I'm a big believer in tariffs. I think tariffs are the most beautiful word. I think they're beautiful. It's going to make us rich.

Hannah McCarthy: Do people see this as a step toward encouraging American industry the same way we did in the 1800s?

Nick Capodice: I mean, it could be seen that way. But Shannon says that we like the global We? We just don't work that way anymore.

Shannon O'Neil: The problem or the challenge with that is when you try to make it all here at home. You can make those goods more expensive. And what [00:11:00] has happened over these last 30 or 40 years with globalization and supply chains, global supply chains that we talk all about, especially since the pandemic. You know, the benefit of those is that products become much cheaper because an individual factory can make, you know, a particular product, a pair of socks, not just for, you know, people in Iowa, but for the people all over the world. They can potentially make socks for 8 billion people. And so they get to what economists call an economy of scale, [00:11:30] where they're churning out so many socks that each of those socks costs much less individually than if you're just at home darning your own socks in your living room. The benefit for us is you and I go to Walmart or Target or your local store that you like, and we can buy a pair of socks for a couple of dollars. You couldn't do that 40 years ago because of those the difference in the way the economies work. But we also don't make a lot of socks here in the United States anymore. And that is why one might put tariffs on. If you wanted to make socks again in the United States, [00:12:00] you probably would have to put pretty high tariffs on you. And I would start paying $20 maybe for a pair of socks, not $2 for a pair of socks. Um, but they would be made here in the United States.

Nick Capodice: Real quick, there's another reason we sometimes impose tariffs, and that's to discourage the use of something like tobacco or certain kinds of alcohol.

Hannah McCarthy: What do you mean by certain kinds of alcohol?

Nick Capodice: Oh, there's like, oh, there's a whole megillah. I can't get into it [00:12:30] about how the EU put a tariff on American whiskey because of a tariff the US had on airplane manufacturing. Whiskey makers in the US were hit hard because Europeans bought less of it due to the tariff. And then we have that. The Trump administration put a massive tariff on wine from Europe, except for Italy for some reason. And the Biden administration reversed the wine tariff. But it's on the horizon to return in 2025. Okay.

Hannah McCarthy: Hearing that, Nick, it makes me feel like tariffs are more [00:13:00] an element in the global conversation, right? It's about maybe rewarding another nation or sort of slapping the hand of another nation, more so than it is about encouraging industry in your own nation.

Nick Capodice: Wonderfully put.

Hannah McCarthy: So our tariffs that are they just a tool in the diplomatic utility belt.

Nick Capodice: Well, I will get into that utility belt as well as a deep dive on Trump's proposed tariffs. [00:13:30] But first we got to take a quick break.

Hannah McCarthy: But before that break Nick and I wrote a book about all of the many things we have learned about America over the years. I don't think we have tariffs in there, do we?

Nick Capodice: I don't think we did, but we didn't know at the time everything else is in there.

Hannah McCarthy: Though we did put a lot in there. It is called A User's Guide to Democracy How America Works.

Hannah McCarthy: We're back.

Hannah McCarthy: We're talking about [00:14:00] tariffs here on Civics 101. And Nick, you know we're not a couple of seers here.

Speaker10: Soothsayers, augurs cassandras.

Hannah McCarthy: That one is debatable. Anyway, my point is that we cannot predict the future. But I do think we should talk about president elect Donald Trump's proposed tariffs. What are they?

Nick Capodice: So some of Trump's tariff promises have vacillated over the last few months. But here is what he claimed this November. He has proposed a blanket [00:14:30] 25% tariff on all goods coming from Mexico and Canada, and a 60 to 100% increase on tariffs on all goods coming from China. Also a 10 to 20% tariff on everything else from everyone else.

Hannah McCarthy: And is it the president who sets a tariff? Is that an executive power?

Nick Capodice: Well, the Constitution says no. The Constitution grants Congress the power to set tariffs. Article one, section eight. However, in 1934, [00:15:00] Congress signed the Reciprocal Trade Agreement Act, which gave the executive branch the power to set tariffs with congressional approval. And Franklin Delano Roosevelt was the first to do that, and since then there have been about a half a dozen other acts signed into law ceding tariff powers to the president, given certain situations.

Hannah McCarthy: How do economists generally view tariffs? What are their feelings about these proposed sweeping tariff changes that might [00:15:30] happen with the incoming administration?

Nick Capodice: All right. Here again is Doctor Shannon O'Neil, VP at the Council on Foreign Relations.

Shannon O'Neil: So the research shows, and even the tariffs that we've seen over the last eight years has shown that these are costly for us consumers. Um, and there's different kinds of tariffs. The tariffs in the past have often been targeted tariffs, meaning they choose particular products or particular sectors. So it's not saying everything that comes in from China has [00:16:00] a 60% tariff. It's saying, you know, things that come in from China that are in the electronics space. So electronics that come in from China, they're going to have a 20% tariff. Uh, toys that come in from China, they're going to have a 20% tariff, clothing that comes from China, that's going to have a 25% tariff. So it's choosing particular products. And what the research has found over the last eight years, since those tariffs went into place, is that it raised prices in those sectors for US consumers. So [00:16:30] the prices of those goods that have tariffs, they went up.

Hannah McCarthy: Does Shannon have any idea of how much prices might go up with Trump's proposed tariff increases?

Nick Capodice: Well, she didn't give me an exact number, but the Peterson Institute for International Economics released a study in August 2024 that estimated these increases would result in a cost of $2,400 per family per year. And it hits hardest for those with less money. They write that all households, [00:17:00] quote, lose net income from such high tariffs, but the losses are greatest for those at the bottom of the income distribution. The median household would expect to see its after tax income fall by about 4.1%. The top 1% would experience net gains in income because their losses from tariffs are more than offset by Trump's proposed tax cuts, end quote.

Hannah McCarthy: What about the effect tariffs have on who we buy from? I imagine that if there's a super high tariff [00:17:30] on one country, we're going to get stuff from another country.

Nick Capodice: Yeah we will. And Shannon said that this is something that her research has made abundantly clear.

Shannon O'Neil: We put a tariff on clothing coming in from China, we don't bring as many clothes in from China as we did in the past, we bring in clothes from other countries. Now we bring it in from Thailand. We bring it in from Malaysia, we bring it in from Mexico or Central American nations. So you see a shift in trade with those tariffs into the United States. And you also see, in some cases, a rise [00:18:00] in US prices of those goods, because that tariff gets passed along to individual consumers. It costs more on the shelf when you buy it at the store or on Amazon.

Hannah McCarthy: Can we come back to the diplomacy thing? It sounds like tariffs are part of this diplomatic toolkit, so to speak. Does stopping free trade with other countries have an effect on how we interact with them, deal with them in other matters?

Nick Capodice: It absolutely does.

Speaker9: So in the past.

Shannon O'Neil: Often we turn to countries that we like, countries that are our [00:18:30] allies or our partners, and we say, hey, let's do a free trade agreement, let's bring our economies closer to each other, and we'll buy and sell more from each other. And one thing we'll do Diplomatically but also economically is we will reduce tariffs. In fact, we might get rid of all tariffs between our two countries because, you know, we trust each other. We think that you're a strong economy on your side would be good for us because we're allies. We're partners around the world. And we want prosperous allies out there. One, because they could come support us if we get into a fix [00:19:00] and there's a war or there's a conflict, we want them to be able to contribute.

Nick Capodice: Like I say, the Toby Ziegler was completely right when he gave his speech on the West Wing about free trade.

Toby Ziegler: Clothes are cheaper, steel is cheaper, cars are cheaper, phone service is cheaper. You fill me building a rhythm here. That's because I'm a speechwriter. I know how to make a point, Toby. The lowest prices. It raises income. You see what I did with lowers and raises there? Yes. It's called the science of listener attention. We did repetition. We did floating opposites. And now you end with the one that's not like the others. Ready? Free trade stops wars. [00:19:30] And that's it. Free trade stops wars.

Nick Capodice: By the way, if you look up the science of listener attention, you're going to see it was completely fabricated for this episode. But to Toby's point, when you trade with another country, it does grease the wheels for other diplomacy. If you and another country are both prospering from each other, you're probably going to have an easier time negotiating other stuff. But diplomacy is not the only reason we trade. [00:20:00] We trade because we want stuff and we don't have everything.

Shannon O'Neil: We don't make coca. You want chocolate chips right in for for your pancakes, for your cookies, for whatever it is that you like. There's lots of other things that are produced around the world that we want to have as consumers here in the United States. And importantly, we want to be able to sell the things that we make here that support U.S. jobs in countries around the world. And, you know, 95% of the world's population lives outside of the United [00:20:30] States. Wouldn't it be great if they were buying products that were made in the United States? They're much more likely to buy products if there are no tariffs when it goes into that country. So signing a free trade agreement where we say, hey, in the United States, you can bring your your products in with zero. But if we go to your country, you have zero tariffs on your products, then we get to export our products to Mexico or South Korea or Peru or Singapore or other places where we have free trade agreements. We [00:21:00] get to export to those countries without paying any tariffs on our goods. And so their consumers don't have to pay more to buy American products.

Nick Capodice: And Hannah, I don't want to end this episode with you thinking tariffs are capital B bad. Shannon says they have their purpose and they can be justified.

Shannon O'Neil: There are places for tariffs. It's not that they should never be used and there are a couple reasons to use them. One is if other countries are being unfair [00:21:30] in the way they make things and they're favoring their own companies, it's not fair for our companies to try to participate or try to compete against others that have a bigger advantage. So let's say in China you're neo, you're making electric vehicle cars, and the Chinese government promises to buy lots and lots of cars for all of the taxi stands all over Shanghai from a particular company. Well, that company has a leg up because they know they have all these orders. Or let's say the government gives them free electricity or free land. [00:22:00] Well, US companies, GM, Ford, they don't get free electricity and land. So that's not fair in terms of the price of the car. So there's a reason perhaps to put a tariff on.

Nick Capodice: And another reason we might have tariffs is because frankly, it can be a national security issue.

Hannah McCarthy: How is it related to national security?

Nick Capodice: Well, think of war, right? The war machine. 50 years ago, it was tanks and bombs. We used to fight and protect ourselves. And that is a lot of steel. That's a lot of aluminum. We [00:22:30] need to be able to produce our own steel and aluminum, in case we end up in a conflict with our biggest steel and aluminum suppliers. But war is not just tanks and bombs anymore. It's drones, semiconductor chips, satellites. War will be fought in the skies. And I'm not talking about airplanes. And it is so scary to me, Hannah, that I'm going to leave the Tim Curry space joke until the credits.

Hannah McCarthy: All right. So tariffs [00:23:00] have a place. They are a kind of insurance for if and when we enter a conflict. And there are some times they can help level the playing field. If another country is producing goods with what we perceive to be an unfair advantage.

Nick Capodice: Yeah. The problem though, and this isn't just Shannon's belief, by the way. 16 Nobel Prize winning economists signed a letter this June expressing concern about Trump's proposed tariffs. The problem is that they're not [00:23:30] targeted. They're just a percentage on a country, not on a specific item.

Shannon O'Neil: Broad based tariffs. When you put these on broadly, the challenge is it makes U.S. products more expensive. And that has two things it means we're not going to sell to we're not going to sell our products, our goods to other countries because it'll just be too expensive. Other goods made in other places will be cheaper. And so a consumer will buy, you know, a toy or a computer or [00:24:00] a shirt from others because it'll just be cheaper, better made perhaps, or similarly made, but cheaper. So that's one reason. But the other thing is actually in the United States, if you're buying something that's made just in the United States, in this global world, it's going to be more expensive here for the United States as well. So if you're going to buy socks, you could buy socks for $2, or you could buy socks for $20. You might buy fewer pairs of socks if they're going to cost you $20 than if they cost you $2. So [00:24:30] that means for the people who make socks, who make the cotton or the wool that goes into the socks, they're going to sell fewer pairs. That means the store that you go to, you're going to visit fewer times to go and buy the socks. That means the clerks that work there maybe don't need as many clerks. Maybe you don't need as many stores. It means other parts of the economy begin to slow down and you start losing jobs. You start losing consumption. And that is a big driver of US prosperity. So there's a cost, not just in access [00:25:00] to the rest of the world and consumers that are in countries on the other side of the world. There's also a cost to the US economy because Americans stop buying as many things. That means there's fewer jobs to make the things that Americans might buy. And we see our economy slow overall.

Tim Curry as Premier Cherdenko in Red Alert 3: I'm escaping to the one place that hasn't been corrupted by capitalism.....SPACE

Nick Capodice: Well there you go isn't that just a bit of tariffic. this episode was made by me Nick Capodice with you Hannah McCarthy thank you. Christina Phillips is our Senior Producer and Rebecca Lavoie our Executive Producer. Music in this episode from Epidemic Sound, Blue Dot Sessions, ProletR, HoliznaCCO, Bisou, and heaven help us if there's ever a tariff on the beats by Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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What is authoritarianism?

Authoritarianism and autocracies take many forms. So how do you know it when you see it? Our guide to the erosion of choice, rights, truth and power is Anne Applebaum, author of several books including, most recently, Autocracy, Inc..


Transcript

Archival: [00:00:07] Indisputable is that the government is using military courts to try civilian protesters, that opposition figures are behind bars, that the president says he wants to change the Constitution in order to, quote, restore the peace. How is that not creeping authoritarianism?

Archival: [00:00:22] Chairman Mao may loom large here as a symbol of strength, but he's also a reminder of the chaos that can come when one [00:00:30] leader has far too much of it.

Archival: [00:00:32] The Iranian regime has shut down the internet all across the country as it brutally cracks down on massive protests.

Archival: [00:00:39] Increasingly hardcore autocracy one man rule.

Archival: [00:00:43] Orban successfully transformed Hungary's democracy into an autocracy.

Archival: [00:00:48] The actual framework of governance that Maduro has been able to bend to his will, to be able to stage phony elections like the one that's going to be held this weekend.

Archival: [00:00:56] Unless he's forcibly removed from power. Mr. XI should now [00:01:00] be able to personally choose for how long he will govern.

Archival: [00:01:02] Much of that control now rests in the hands of just one man.

Hannah McCarthy: [00:01:13] Hey, Nick.

Nick Capodice: [00:01:13] Hey there, hannah.

Hannah McCarthy: [00:01:14] This is Civics 101. And this is an episode about something I think a lot of us think we understand terms that we hear a lot, perhaps especially lately. But as with so many things we talk [00:01:30] about on Civics 101, I had to ask myself, do we know what we are talking about? So, per usual, I found someone who for sure knows what she is talking about.

Anne Applebaum: [00:01:44] I'm Anne Applebaum, I'm a staff writer for The Atlantic. I also teach at Johns Hopkins University, and I'm a working historian.

Hannah McCarthy: [00:01:52] I came to Anne with a question. My question was, what is authoritarianism? And right off the bat, [00:02:00] I think I got a better catch all term for the thing we are talking about today.

Anne Applebaum: [00:02:06] So authoritarianism or autocracy is a political system in which one person or one small group of people, or sometimes one political party rule without any checks and balances, without independent courts, without an independent media, without a legitimate opposition. They're able to rule without any anything [00:02:30] hampering them at all. They're not obligated to follow the rule of law, meaning that a legal system in which laws are made by courts and judges separately from whoever is in power. Instead, they operate according to something that we call rule by law. That means the law is whatever the person in charge says it is, so it can change from one day to the next. That's the simplest definition of autocracy.

Nick Capodice: [00:02:55] Autocracy. That word feels both generally [00:03:00] Really nefarious, but also kind of cool and removed, like kind of clinical. It does.

Hannah McCarthy: [00:03:05] And okay, so I think that this will help you. That word comes from both ancient Greek and ancient Latin. It went from meaning, you know, self-power or self-control to being a word used to describe military commanders with a lot of power. And eventually it kind of got smudged into being the word sometimes used to describe the person in charge of everybody [00:03:30] and everything.

Nick Capodice: [00:03:31] All right. Cool. That makes a lot more sense.

Hannah McCarthy: [00:03:33] Moving on. And told me that there are many autocracies on this earth of ours, and they are not identical, but they share three characteristics.

Anne Applebaum: [00:03:45] People don't have guaranteed rights. So you don't have, for example, the right to freedom of speech in any kind. You can be arrested for something that you say, even if it's true or even if it's not important or significant. You [00:04:00] don't have the right to contest power or to affect or change whoever is in power. So you have a single leader or a single political party. They rule and there is no legitimate way to be in opposition to them. There's no way to change your own government. You don't. You can't vote. Or if you can vote, the vote has a significance. Some autocracies do create very elaborate fake essentially systems of voting, kind of pretend voting. But [00:04:30] you don't have any ability to change the regime. You don't have rights in the regime, and you also don't have the ability to, you know, make an argument based in law. You can't say you have taken away my property, and that's illegal according to this particular statute, because the law will change according to what the leadership wants it to be.

Nick Capodice: [00:04:55] So basically you get no say, right? [00:05:00] You have no protections. The rules could change at any minute. One minute you're standing on solid ground and the next thing you know, the floor is lava. Right.

Hannah McCarthy: [00:05:10] But again, these governments vary. So is a dictator, for example, an autocrat? Yes. Is an autocracy a dictatorship? Not necessarily. It's kind of a a square is a rectangle, but a rectangle is not a square situation. [00:05:30]

Anne Applebaum: [00:05:30] There are many different kinds of autocracies. Um, you know, there's Communist China and nationalist Russia and theocratic Iran, and they all have very, very different rules, and some of them have more access to freedom or to other ideas than others. Some are very tightly controlled.

Nick Capodice: [00:05:45] And all of those nations. Hannah, correct me if I'm wrong here. They all kind of work together, right? Like, I know that China and Iran, for example, they support Russia's war on Ukraine.

Hannah McCarthy: [00:05:55] Oh yeah, among many other things, and actually wrote a book about that. It's called [00:06:00] autocracy, Inc. and you should read it. It's not about all of these governments agreeing or thinking the same thing. It's more like this informal way of using your absolute power to keep someone else in absolute power. And then, Nick, there are plenty of governments that have autocracy vibes, so to speak, but aren't, you know, broadly autocratic, at least not yet. They're dabbling pinch of control here, dash of restriction [00:06:30] there. And then there are countries that actually take it even further.

Nick Capodice: [00:06:34] Further than no rights, no say no protections, no consistency.

Anne Applebaum: [00:06:39] There's a further step. We used to speak often about totalitarian systems, and these are systems in which the political leadership really does seek to control everything. So not just politics, but also economics, also social life, also education, culture, everything. And so everybody inside the system is is meant only to read [00:07:00] and listen and think. According to a set of rules, you know, a set of ideas given by the leadership, probably it's fair to say that totalitarianism is hard to achieve. It's hard to really prevent everybody from thinking differently from what the regime says. But the attempt to create it has been real. I mean, there have been there have been a number of very real attempts to create totalitarian systems.

Nick Capodice: [00:07:24] So Anne here is describing utter total control, right. Like [00:07:30] thought police levels of control or something close to that.

Hannah McCarthy: [00:07:34] Yeah. I mean, you know, thought police is kind of impossible. But I think that would be the dream in a system like this. Right. And again, it's not exactly an easy thing to do, but if you give a mouse a cookie, they might just tell you that two plus two equals five.

Nick Capodice: [00:07:46] All right, Hannah, here's what I have to know. How how does a country become something like this? Is it possible, for example, for a democracy to stop [00:08:00] being a democracy or to become an autocracy.

Anne Applebaum: [00:08:04] So I don't know that there's a playbook for creating autocracies. There are some countries where there has never been anything else, so there has never been democracy in China. You can't really speak of there being a playbook to achieve something that is pretty much always been there. There is a path towards authoritarianism that a number of democracies have followed. So democracies do decline. They have been declining since the time of ancient Rome, when the American [00:08:30] founders were writing the Constitution. They had that example in mind.

Hannah McCarthy: [00:08:33] You know, it may come as a surprise, but I actually do think about ancient Rome all the time. What happened there was that a democratic system was dismantled over time by corruption, division and military threats. We can talk about that some other time. It's a long story, but the framers were sure thinking about it when they wrote the Constitution.

Anne Applebaum: [00:08:59] They were thinking about [00:09:00] how to prevent democratic decline, and democratic decline usually involves the rise to power of perhaps an elected, legitimate leader who begins to take apart the institutions I've been talking about. So a leader who seeks to take over state institutions that are meant to belong to everybody and instead make them work for him, either politically or financially, or a leader who seeks to politicize the justice system instead of having justice be something [00:09:30] that is neutral, that is meant to where you know, the courts, you know, the legal system are supposed to abide by the Constitution and by the law. An authoritarian leader will try to change that so that courts are politicized and the courts will respond to whatever, whatever the leader wants. Sometimes the path to authoritarianism also includes attempts to control public conversation or information. So to push hard against independent media to silence critics first, either legally or but maybe [00:10:00] eventually using repression. Not all autocracy involves repression or, you know, jail or violence, but many of them end up doing that because in order to keep control, authoritarian leaders very often wind up relying on violence.

Nick Capodice: [00:10:14] I guess that violence is a pretty direct path to forcing people to give you what you want.

Hannah McCarthy: [00:10:20] Well, if you're trying to undo a system where citizens have power, they might not be super thrilled to just give it to you. So sometimes [00:10:30] it's about taking, and taking is rarely peaceful.

Anne Applebaum: [00:10:35] But in the beginning, the decline of a democracy. And we've seen and this is, by the way, something that can happen either led by movements coming from the left. There's a version of that, for example, that took place in Venezuela over the last couple of decades.

Archival: [00:10:47] In 2013, the then president Hugo Chavez, passed the baton to Maduro after being diagnosed with cancer. His successor promised to continue the socialist revolution, lifting people out of poverty. [00:11:00] But that promise is well and truly broken.

Anne Applebaum: [00:11:03] Or movements coming from the right. And they're the kind of classic modern examples. Probably Hungary, a country whose elected leader slowly took apart the state, removed rights, removed, changed, altered the situation so that rule of law didn't really apply in Hungary.

Archival: [00:11:20] Many Hungarians see their right wing prime minister as this totalitarian. Many people are worried about core democratic values such as free speech or an independent [00:11:30] judiciary. Many members of the EU Parliament say the rule of law in Hungary is being threatened.

Anne Applebaum: [00:11:36] I mean, it can happen pretty fast. Um, Hungary is a very small country, and so it turned out to be very easy for a democratically elected leader who had that idea in his head to capture institutions, to put people in charge of the institutions who would be loyal to him personally and not to the Constitution, for example. He did that fairly quickly over several years. Venezuela. The left wing example is a is [00:12:00] an example of a place where it took longer. There were a series of elections. The Hugo Chavez, who was the original, who led the original assault on the political system, was actually, you know, reelected a couple of times legitimately and really only was later on when he and then his successor, Nicolas Maduro, began to break the law more systematically, that you could really call Venezuela a full autocracy rather than just a messy democracy.

Nick Capodice: [00:12:34] So [00:12:30] there's no one way that this happens. It could be pretty quick under one person, or it can be slower under a series of leaders who have that same goal of breaking the government.

Hannah McCarthy: [00:12:46] Yeah, there are a lot of paths, a lot of tactics that can contribute to the decline of a democracy or some other system of government and the rise of an autocracy. So, Nick, you asked me, is it possible [00:13:00] for a democracy to stop being a democracy? And I told you earlier that it's possible for a country to have autocratic elements without being autocratic. It's also possible to be a democracy while you're losing elements of democracy. So one of the examples that Ann brought up was, you know, when people who follow the law or tell the truth are threatened. I mean.

Anne Applebaum: [00:13:25] This is something that came up after the 2020 election. So Republicans who followed the law [00:13:30] and understood that the election was not stolen, they found that when they spoke the truth, they were assaulted both online and sometimes in real life. And when you have a situation where people are afraid to say true things or afraid to make arguments because they're worried that somebody will murder them in their families, then you already begin to have a situation where people don't feel free. And that began to happen in the United States, very notably after after 2020.

Hannah McCarthy: [00:13:56] And also pointed to the problem of government Becoming [00:14:00] performative. So that's like taking systems that exist to uphold the law and using them basically to put on a show.

Anne Applebaum: [00:14:09] Congressman Jim Jordan ran something called the Weaponization of Government Commission in the last Congress, and took it upon himself to examine the work of people who do research into disinformation, for example, or into patterns of conversation online, and unfairly accused some people who had been researchers who had been academics of being involved in censorship, which they were not involved [00:14:30] in. You know, this then led to a series of court cases. Eventually they made it all the way to the Supreme Court. But the entire time, I mean, both the congressional hearings and the court cases were based on things that hadn't happened. Um, you know, so again, when when lies or untruths become a kind of fundamental basis of political argument and become accepted by, you know, by people within the system, then you're also on a road towards autocracy.

Nick Capodice: [00:15:05] All [00:15:00] right. So I have to ask at this point, are we, Hannah, are we on the road towards autocracy? Is this democracy? American democracy in trouble?

Hannah McCarthy: [00:15:20] Well, we're going to get to that after a quick break.

Nick Capodice: [00:15:23] Oh, come on, for real.

Hannah McCarthy: [00:15:25] But before that break, a quick reminder that Nick and I have a book that covers a whole lot [00:15:30] of the story of this nation. In fact, it is the perfect companion for those moments when you find yourself asking, is this against the law? Is there any precedent for this? Why is this happening? It's called A User's Guide to Democracy, and it is just that. You can get it wherever books are sold.

Nick Capodice: [00:15:59] We are [00:16:00] back. We're talking about autocracy today, what it is, what it looks like and how it happens. And just before the break, Hannah, you decided to make us all wait to hear whether this nation of ours is on an autocratic road.

Hannah McCarthy: [00:16:15] So is it. Well, we can't predict where this is leading, right? We can't predict the future.

Nick Capodice: [00:16:21] You're an artful dodger, McCarthy.

Hannah McCarthy: [00:16:23] But we know what autocracy looks like. Or rather, Anne Applebaum knows. And we [00:16:30] are learning. And Anne says that this democracy, our democracy, has had cracks in the foundation for a while now.

Anne Applebaum: [00:16:38] There have been elements of American democracy that have been broken for a long time, you know, and we all know what they are. The amount of money, including the secret money in politics, the money that people can use to create PACs or to support election campaigns, you know, has led to American elections becoming a kind of circus. I mean, by comparison to elections in other democratic countries, most countries don't spend [00:17:00] millions and millions, you know, hundreds of millions of dollars on their election campaigns. And we do. And I think that's a sign of real decline, the change in the nature of information, the fact that people get information that they receive through algorithms that have been designed to to send people emotive and angry and divisive material. This is how the interweb works more broadly. It's not just about social media. You know, the advertising system rewards people who who have, [00:17:30] you know, angry and divisive conspiracy theories, for example. And by allowing those ideas to dominate the information system and to, you know, and to help divide Americans and to create deep partizanship, those changes have been in the works for a long time, and they precede anything that's happened in the last in the last few years.

Nick Capodice: [00:17:49] Money and information. Isn't that always the way?

Hannah McCarthy: [00:17:53] And not just money. Secret money. Hidden money. And says there are different types of [00:18:00] economies at play here, one that is in the light and another in the shadow.

Anne Applebaum: [00:18:06] We often forget that alongside the normal economy, alongside the economy where you and I pay taxes, and if we have businesses, we are subject to regulation. And if we own a company, our name is on all the documents. There is also another economy where where money is kept offshore, where it flows through shell companies that are held anonymously. Property can be purchased anonymously. And that world, that [00:18:30] kind of offshore world has been hugely beneficial both to the autocratic world and to people inside the democratic world who who want to evade the law or evade taxes or hide, hide their wealth. It's not a subject people know much about, but it's that the growth of it, explosive growth of it, I should say, over the last decade, is another indication that our democracy, not just in the United States, but in Europe as well, is declining because so much money can be taken and hidden secretly and giving people [00:19:00] power and influence secretly that that is impossible to know. I mean, transparency and accountability are marks of democracy, and secrecy is a mark of dictatorship. Okay.

Hannah McCarthy: [00:19:12] Another thing that we need to talk about. Does it matter when our leaders use language that autocrats use?

Anne Applebaum: [00:19:20] I worried a lot during the last election campaign about some of the language that Donald Trump was using, because to me, it was reminiscent of language I had heard in other times [00:19:30] and other places. So when you call your opponents vermin, or you talk about them as enemies of the people,

Archival: [00:19:34] The radical left thugs that live like vermin within the confines of our country, they are truly the enemy of the people they are.

Anne Applebaum: [00:19:42] That's language borrowed from the dictatorships of the past. And you do that if you like Viktor Orban or like Hugo Chavez. If you're somebody who wants to be able to say, I have complete power and authority, my enemies and opponents are vermin. You know, you don't have [00:20:00] to take account of them or they're enemies of the state. They're traitors. That gives you license to begin to take apart the state. Remember that democracy depends on a kind of. You know, it's almost a I mean, it's almost sort of inhuman, a very difficult kind of sense of fair play.

Hannah McCarthy: [00:20:19] And talked about the fact that there are rules, there are systems that we are all supposed to agree on and abide by rules and systems that are designed [00:20:30] to keep this country democratic.

Anne Applebaum: [00:20:33] Once people begin to break that rule or break that bargain, and once the, you know, there's a winner takes all system whereby if you win an election, you get to destroy everything or change everything, then it becomes much, much harder to maintain a democracy. And that language is now part of our system. This idea that one side or the other side is illegitimate and can't be allowed to rule that level of partizanship that we reached in the US is really reminiscent [00:21:00] only of the years leading up to the Civil War in its power and strength, and we've been divided about many things before. Um, is profoundly worrying. I mean, just the language that people use about politics now is very, very different from the language people used a decade ago.

Nick Capodice: [00:21:14] So here's what I need to know. Does Ann think that words matter? I mean, obviously she does. She just said that this language that calls one side illegitimate means a level of division that is profoundly worrying. But [00:21:30] there are those who say who have said that words are just words. Hannah Bach worse than a byte kind of thing.

Anne Applebaum: [00:21:39] What people say and how they say it does have consequences. Words have consequences, and how the language that people use to describe their opponents describe their country. This tells you a lot about them. And so it should be at least at the very least, a kind of warning sign.

Nick Capodice: [00:21:54] Now, we have heard politicians use inflammatory language in this country. I know we're hearing a lot of it right now, [00:22:00] but we have dealt with it before, right?

Anne Applebaum: [00:22:03] The language remains disturbing because if you look at the history of American politics, you know, at least in the 20th and 21st century, you don't hear people talking like that in US politics. I even looked at I went back and read some of the speeches of segregationists from the 1960s, and even they don't talk about their political enemies as vermin. And so I thought that was a I thought that was a real break with tradition. So it's very hard to know how [00:22:30] to talk about someone who's broken with tradition, who's run a campaign that's notably different than anything that's gone in the past, while at the same time, you know, not sounding hysterical or hyperbolic. It's a fine line. And I don't, you know, I'm not sure that I'm not sure that we found it.

Hannah McCarthy: [00:22:48] This hyperbolic thing. I think this is important to think about. How do you talk about hearing words in this country that were used by autocrats in [00:23:00] the past. Ideas and actions in this country that look. Autocratic. If you say, well, that language sounds like language used in countries where. Democracy has eroded, where autocracy rose. And we should worry about that. There are those who. Would say, you need to relax. And Anne says the language you use to talk about this kind of language. That really matters to me.

Anne Applebaum: [00:23:29] I've [00:23:30] actually been very careful about using the word fascist.

Archival: [00:23:32] Donald Trump is lashing out at his former chief of staff for calling him a fascist.

Archival: [00:23:38] We certainly falls into the general definition of fascist for sure.

Anne Applebaum: [00:23:42] I know it was used by General John Kelly, who had worked for Donald Trump. You know, that's his right. Um, partly because it immediately makes people think of Nazi movies. And I don't think that America is going to become a Nazi movie. You know, it's not going to look like that.

Hannah McCarthy: [00:23:59] There's [00:24:00] one last thing I want to get to here. Yes, we are talking about autocracies. We are talking about the kind of words and actions that can guide a democracy into an autocracy. But ultimately, Ann says, the decline of democracy is not just about a politician or an anti-democratic movement.

Anne Applebaum: [00:24:19] Democracies succeed when their citizens are engaged, when people are engaged in politics, when they run for office, when politics [00:24:30] isn't a thing that is done by some kind of separate cast, you know that it's something that belongs to everybody. When people are engaged in political parties, when they join movements, when they express their ideas, when they're part of the system. And one of the things that modern authoritarian propaganda does is it tries to disengage people. One of the effects, for example, I mean this, as you can see in Russia, of a politics where there's a constant stream of lies. You know, when people are lying openly lying about things [00:25:00] that everybody knows is not true. When you see people doing that, that's something that political leaders do because they want to make people exhausted. You know, they're not lying because they think you're going to believe everything that you're lying about. They're lying because they want to make people say, oh, gosh, I have no idea what's true and what's not true. Politics is a dirty business. I better stay home. And so it's very important for ordinary people to not be fazed by that and to seek to remain involved. I mean, really, once democracy loses, it's once people aren't participating, then [00:25:30] it's very easily taken over by cliques or by the very wealthy or by people with ill intent. So staying engaged and being an active citizen is, you know, it's really the responsibility of everybody who lives in a democratic society. As I said again, it's not it's not something that like a special group of elites or fancy people or, you know, do. It's something anyone can do.

Nick Capodice: [00:25:53] I really appreciate that point, Hannah, because we say all the time that staying engaged is the way to keep our democracy [00:26:00] alive. But I'm not always sure that that lands with people. And I'm not even sure it'll land with people now. But here at least we have an historian who knows what it takes for democracy to die, because she's been studying it for a long time. So if you don't take us at our word, maybe you can take Ann at hers.

Hannah McCarthy: [00:26:23] Basically, don't let the people with money and power let you believe that you are not allowed into the club because you don't have money or you don't [00:26:30] have power. Because when we start believing that it's the most straightforward, the best way for us to eventually be banned from the club. And even though autocracies rely on secrecy, lies and hiding things from people, they also have clear tells. So what is an autocracy? It is no one thing, but what does an autocracy do? It keeps the power away from the [00:27:00] people.

Anne Applebaum: [00:27:00] It's important to remember that there are different kinds of authoritarianism. It's not like there's a huge alliance of autocracies and they all think the same thing. Autocracy can take different forms. China is a one party state. It's the Chinese Communist Party is the leadership. And the Chinese Communist Party is a big and complex organization with many different kinds of people in it. By contrast, Russia is really a one man dictatorship. There is no equivalent of the Chinese Communist Party. Iran is run is a theocracy that's run by religious leaders. Venezuela is a kind of [00:27:30] oligarchy run by a group of very wealthy people connected to Nicolas Maduro and his security and army chiefs. The forms of autocracy and the language of autocracy can look different and sound different. But, you know, pay attention to the fundamentals. You know, what kind of rights do people have? How does the legal system work? What kind of information are people allowed to have access to, and what kind of influence to ordinary people have on the way the government works? And that's how you know what level [00:28:00] of autocracy you're talking about.

Hannah McCarthy: [00:28:08] That does it for this episode. It was produced by me, hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Anemoia. AutoHacker, Ambre Jaune, Dylan Sitts, King Sis, Andreas Dahlback, Lennon Hutton and Craig Reever. If you want more Civics 101, we've got [00:28:30] it for you. You can follow us on Bluesky at civics101pod, you can follow us wherever you get your podcasts, and you can go to civics101podcast.org to access everything we have ever made and get in touch with us. Don't forget, if you like us, leave us a review. Nick and I used to be actors, so without feedback, we're kind of at sea. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What can (and can't) the Secretary of Health and Human Services do?w

Former HHS Secretary Kathleen Sebelius talks about the powers - and limits - of the role in the wake of President-elect Donald Trump's pick of RFK Jr. for the role. This episode was brought to us by the podcast Tradeoffs, hosted by former NHPR health reporter Dan Gorenstein.


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

The Supreme Court's Criminal Trial

It happened once and never again.

In 1906, the Supreme Court stayed a man's execution. That same day, his town murdered him. Then SCOTUS held it's first and only criminal trial for those who had allowed it to happen. This is the story of a wrongful conviction that was only the beginning of an injustice and the students who learned that story in June of 2024. It's also the story of what happens when you realize your government is closer than you think.

Learn more about the Supreme Court Historical Society’s Hometown Program.

Learn more about the Chattanooga program here.

Learn more about Ed Johnson.


Transcript

Hannah McCarthy: Hey, Nick.

Nick Capodice: Hey, Hannah.

Hannah McCarthy: Right off the bat here. I need to let you not You Nick. But the person who is listening to this right now know that I sometimes struggle to find hope. Hope about understanding this nation, participating in this nation, accessing this nation. I'm always looking for it, and I know it's there somewhere, but I don't always see it.

Nick Capodice: Even though that's what we do on a daily basis like try to understand, try to participate, try to access, it.

Hannah McCarthy: Might be because that's what we do on a daily basis, right? Like all day, every day, trying to wrap our hearts and minds around this country. And even when I do grasp it myself. I am always wondering, do other people? Does that mean something to them? Does that help them, strengthen them? Or does America feel out of reach?

Nick Capodice: I am with you there, Hannah. I do understand that because the more I learn about this country and its systems, the more secure I feel, honestly. Or maybe the more I feel I have some say in what goes on here. There's something to that whole knowledge is power thing. And you do wonder, Hannah, do other people feel the same way? Do they care?

Hannah McCarthy: So when something shakes those cobwebs off of my trembling heart and reminds me how many people out there really care and really do try to understand and help others to understand too, because that is one of the points of being alive in the United States. It's it's just really something. Nick. And today I want you to meet some of the people who are clearing off those cobwebs.

Judge Curtis Collier: I'm Curtis Collier. I'm one of the district judges here in the Eastern District of Tennessee.

Alicia Jackson: Well, my name is Alicia Jackson, and I'm a professor at Covenant College, Lookout Mountain, Georgia.

Mychael Fennessey: My name is Michael Fennessey. I'm a junior at the University of Tennessee, Chattanooga. I'm a history major and an Africana studies minor.

Michelle Deardorff: I'm Michel D. Deardorff, the Adolph S Ochs Professor of government at the University of Tennessee at Chattanooga.

Bella Craig: Hi, I'm Bella Craig. I was a student mentor in the Chattanooga Hometown program, and I'm a current student at UTC.

Taylor Nelson: My name is Taylor Nelson. I am a senior political science major with a focus in public law.

Chief Judge Travis McDonough: My name is Travis McDonough, and most people call me judge McDonough, so that'll be fun.

Myles Farr: I am Myles Farr. I am from the city of Chattanooga in Tennessee. I am currently senior in high school.

Mackenzie Gula: My name is Mackenzie Gula. I am a senior at Chattanooga Christian School, 17 years old, and I had the incredible opportunity of participating with Supreme Court in my hometowns this summer.

Nick Capodice: Wow. Okay.

Hannah McCarthy: I know lots of new voices. Don't worry if you didn't catch all that. Everyone is here to tell us the same story in one way or another.

Nick Capodice: Wait to that last person. Mackenzie. Did she say in my hometowns this summer? Like hometowns? Plural?

Hannah McCarthy: Yep. And that is what we are talking about. That and a lot more. This is Civics 101. I'm Hannah McCarthy here with Nick Capodice. And for two weeks in June of 2024, in a program called hometowns, this group learned and taught the story of Ed Johnson. Chattanooga, Tennessee. The federal judiciary and why we need to know what happened here.

Judge Curtis Collier: In the summer, we had a just fantastic program. We brought in 20 kids. We gave kids a chance to see and work on a real interesting case that developed here in the Eastern District of Tennessee.

Hannah McCarthy: This is Judge Curtis Collier.

Judge Curtis Collier: A little bit over a hundred years ago, in that case, wound up in the United States Supreme Court. They were not only present, they were on top of it. In fact, at the end of the day, they would not leave at the end of the two weeks. I think they stayed around for another 30 minutes, an hour or so, talking and sharing their perspective and experience and asking questions.

Hannah McCarthy: So 10th, 11th and 12th graders apply for this program. If they're selected, they learn about a case that made its way from their hometown to the Supreme Court. The program started in 2023, in Saint Louis, Missouri, with Hazelwood v Kuhlmeier.

Nick Capodice: Hazelwood v Kuhlmeier. I know that one. It's student speech in schools. We have a whole episode about that case.

Hannah McCarthy: We do. I knew you would be excited. There are lots more hometowns planned for the future. By the way, this whole thing is created by the Supreme Court Historical Society and will be putting a link to that on our website and in the show notes. But for today, it's Chattanooga and it's us V Shipp.

Nick Capodice: Us V Shippp.

Hannah McCarthy: You've never heard of it.

Nick Capodice: I haven't, I'm sorry.

Hannah McCarthy: You are not alone.

Judge Curtis Collier: This case is is a little out of the ordinary because it had been forgotten here at Chattanooga. People did not talk about it. It was not in anyone's real memory. A few people knew something happened, but the whole story was hard to hard together. I got interested in it almost as a happenstance. I was doing some research on one of the black lawyers who became involved in the case And after research, I discovered he was involved in a Supreme Court decision. And for a black man back then being born, Supreme Court decision was surprising. So I located the Supreme Court decision and his name was mentioned there. And then this case came up. But I never, ever heard of it. Now, a few years after that, a book was written by a newspaper reporter and a local lawyer here, and they told the story in more detail. And since then, we've learned a lot more about the case, and also a lot more about the triggers involved. This case is not really discussed that much in law schools, and law students will say, I should have been taught this.

Bella Craig: Judge Collier knows so much and he's been in Chattanooga so long.

Hannah McCarthy: Bela Craig, a college student and mentor in the hometowns program.

Bella Craig: He is like sort of the unofficial historian of this case.

Bella Craig: And it was so amazing just to get his legal expertise and his, like, historical expertise. It was incredible being able to walk around my hometown and like, view it in this completely different light. I mean, so many areas I visit so frequently. I had heard about the Ed Johnson case before, just because it's so important to Chattanooga, and there was a memorial recently built to honor Ed Johnson at the end of Walnut Street Bridge.

Mackenzie Gula: I did not know about the case, and I had walked on the Walnut Street Walking Bridge many times without understanding the significance of it and what had occurred there.

Hannah McCarthy: Mackenzie Gula, High School senior.

Mackenzie Gula: I think there are a lot of aspects of this case that brought to light to me, a lot of important connections that maybe necessarily aren't applying the case to modern day circumstances, but rather parts that we looked at that hit very deeply. One of those was we would take field trips to certain historic sites that were involved in the case, such as the nematode Taylor, where she got off her bus stop. What was really interesting for me was the street that she got off at her bus at was right across from my school.

Bella Craig: It was like amazing and a little bit Chilling. I mean, the details of the case are very tragic. So, you know, it was it was upsetting in a lot of ways. But of course, like the Supreme Court Historical Society, their staff and also my professors and the local judges, like they were all super accommodating, like about mental health and things like that. There were regular check ins, which is great, especially since this was with high schoolers.

Hannah McCarthy: A reminder again, that we are going to be talking about instances of sexual and racist violence. So for those listeners who wish to opt out, this would be the time.

Mackenzie Gula: And then right down the road from my school is the cemetery that she lived in and where she was raped outside of, and then head further down that street you have where Ed Johnson lived. Everything felt very close, and I hadn't realized that.

Bella Craig: We visited the cemetery that Nevada Taylor's family kept. Um, her father was in charge of tending the cemetery there. I visited that area before, and I visited even that cemetery. I'd passed it before, but we were standing in the middle of the cemetery where Sheriff Shippp is buried, and there are others involved with the case who are also buried there. And also it was the site she was walking home when she was assaulted, when she was raped. And so we were standing so close to the area where that happened. We were standing in the middle of the graveyard and I'm I'm an atheist, but it's like I felt a lot of just sorrow and just knowing what, what took place there. And, um, luckily my professor was there and she checked on me. She was like, are we doing okay? I was like, not currently, but I will be okay. Um, yeah. And just and it wasn't just the assault, it was everything that happened after and everything that led to the lynching of that Johnson. That really hit me.

Mackenzie Gula: One of the places we went and looked at was an African American graveyard from 1906. And stepping out of the bus and looking across the street, it was just a slip of land that was very poorly taken care of, and had we not been told what it was, we wouldn't know what it was. There was a lot of stones, not ornamentally, placed at all plants, overgrown branches on the ground and right along the line of where this graveyard ended, there were brand new built homes that were just very extravagant. And so that was heartbreaking because looking at the cemetery, you have no idea what it is. And the people living in the homes right next to it may not even know what it is themselves. And so that was heartbreaking to look at. It caused me to definitely take a step back. And in Chattanooga, there's a lot of preservation of historical places. There's a lot going on. That's definitely stuff to be grateful for. A lot of Civil War sites or the Ed Johnson Memorial by the bridge, but there's also a lot of history that's going unnoticed and that's fading.

Hannah McCarthy: So this is the case or the case that started the case.

Mackenzie Gula: So the case itself was about Nevada Taylor. She was a young girl who was raped on her way home, and she had blacked out when a man came up behind her and put a belt around her neck. And later on, the doctor came to her home and confirmed she had been raped. And the sheriff got involved. However, she could not see it was dark. It was late at night. She did not know the man who attacked her. And the sheriff kept insisting on her giving a racial profile for the man. And she was like, I don't know. It was late at night. It was dark. Maybe if I had to guess, it was an African American man. And the sheriff took that and ran with it and posted a reward to whoever could identify him. And of course, as soon as you post a reward, someone's going to come in and say something. And Eddie Johnson was unfortunately that name that was brought up. So that kind of sealed his fate right there.

Michelle Deardorff: The young woman is attacked and raped as she's walking home from work and she doesn't know who does it. He's behind her. It's dark.

Hannah McCarthy: Michelle Deardorff, government professor at the University of Tennessee at Chattanooga.

Michelle Deardorff: And there's this sense that they have to find someone who's done it and who did it. And for reasons that aren't entirely clear, they land on Ed Johnson. The story doesn't make sense. It's not clear how he could be the one who did it, because he was observed being at this local bar.

Mackenzie Gula: And then the sheriff definitely worked towards the downfall of Ed Johnson. They needed to.

Michelle Deardorff: Find someone who did this to put the fears to rest. And as it's reconstructed now from the evidence, it becomes pretty clear that they found a witness who was willing to lie. There was no one white who recognized him as being where his alibi says he was. All the people who could say he was there were African American. And so it goes to court. And when it goes to court, they're under pressure to solve this quickly because they don't want mob rule. And the fear is if someone's not convicted by the law quickly, the mob will take over. And they don't want that in this new progressive, healthy, happy town of Chattanooga. And so they're going to push it through and they're going to push a conviction through.

Mackenzie Gula: There were juror members. Their names were posted in the public paper. So obviously that's going to cause them to feel fearful about if what are people going to think if I say he's not guilty? Obviously that puts pressure on the jurors as well as the jurors. There was one who threatened Ed Johnson's life in the middle of a trial, and that juror was not excused. So there's a lot of injustice happening with the trial itself. Ultimately, a Johnson is found guilty. And following that, pardons and styles step in as attorneys to represent Ed Johnson and appeal the case. Eventually, a stay of execution is granted by the Supreme Court, so there's some hope there.

Hannah McCarthy: All right. We're going to step in here for a moment. I am mostly leaving this story up to the people who know it best. But when we began, I told you that this was a story about Ed Johnson and a story about a Supreme Court case called us v Shipp. There is so much going on here, so I do want to check in to make sure that you don't miss it. Ed Johnson, a young black man in his mid-twenties, was wrongfully convicted of the rape of Nevada Taylor in 1906, and he was sentenced to execution.

Michelle Deardorff: Two white attorneys were appointed to represent him, but they were under tremendous pressure not to family pressure, personal pressure, community pressure. They even tried to explain and write an editorial in the paper as to why they do this, because that's what law requires, that they didn't want to take this case, but they were assigned it and they would do their job. Um, but they really don't do their job. And so he goes to court and he's alone. He's the only they shut down the court. So the only people who are there are lawyers, judges, lots and lots of police officers. And at Johnson, decisions made pretty quickly. He's found guilty. Almost immediately.

Hannah McCarthy: His hite court appointed lawyers opted not to appeal his case. So two black lawyers in Chattanooga, Noah Parden and Styles Hutchins, stepped in to petition the federal court system.

Nick Capodice: Petition it how?

Hannah McCarthy: Though they petitioned for a writ of habeas corpus, which literally means that you have the body, but super. Basically, it means asking the court to review the imprisonment or detainment of a person and decide if it's legal. In this case, pardon and Hutchins claimed that Ed Johnson's trial deprived him of his constitutional rights.

Nick Capodice: So these two lawyers said essentially that Ed Johnson was not properly convicted and his imprisonment and I assume his death sentence was wrong.

Hannah McCarthy: But the appeals court said, sorry, federal courts do not intervene in state criminal proceedings.

Nick Capodice: Wait, is that true?

Hannah McCarthy: Oh, we're gonna get there. So this is 1906, Nick. There's still a lot of stuff to happen in the federal judiciary. Also, by the way, these two black lawyers had initially declined to take Ed Johnson's case, and for good reason. They feared for their careers and their lives if they intervened. So stepping in at this stage was a huge risk, and they did it anyway. So a federal district judge says, sorry, we don't do that. But he also says, but hey, why don't you ask the governor to delay the execution so that you can appeal my decision?

Nick Capodice: In the world of law is such an interesting place, Hannah. No, you can't have this. But hey, why don't you ask someone else to think about it?

Hannah McCarthy: So Parden And Hutchins do that. They ask the governor to delay the execution pending appeal. And the governor says, okay, fine, ten days and pardon is like, I can work with that. I'm going to use this delay to talk to the circuit judge for Tennessee. Do you know who that was, Nick?

Nick Capodice: You know, I do not know. Hannah.

Hannah McCarthy: It was Justice John Marshall Harlan of the United States Supreme Court.

Nick Capodice: I do know him. I know Justice Harlan. He's the lone dissenter in Plessy v Ferguson. So if he was on the Supreme Court when this happened, that means that this is from the riding circuit days, right? When justices would travel the country to hold court in different states. Right.

Hannah McCarthy: That's exactly right. So pardon goes to Washington, DC. And with the help of a black Supreme Court lawyer in D.C., he gets a meeting with Justice Harlan. This is at a time when very few black lawyers had ever appeared before the Supreme Court. Harlan tells Parden, okay. The Supreme Court will hear this appeal. I also grant you a stay of execution.

Nick Capodice: Okay so Harlan is basically saying, actually, the federal courts can intervene in a state criminal proceeding.

Hannah McCarthy: Well, this is one of the questions at hand. And remember, the Supreme Court case is about Shipp. Shipp is the sheriff. It is not called Ed Johnson v the State of Tennessee because this is what happened next. The very same day that Harlan issued a stay on Ed Johnson's execution. I'm going to take us back to McKenzie Gula.

Mackenzie Gula: But then right after that, lynch mob broke into the jail, which definitely was set up to very easily occur because the sheriff had let go of all of the other people working in the jail except for a very, very old security guard and left it very open, very accessible for the lynch mob to get in, find a Johnson. They had him on the second floor alone with another woman. So he was very identifiable. And the lynch mob dragged him out of the jail cell all the way to the Walnut Street walking bridge, where he was lynched. And then he fell out of his rope, and they walked up and shot a gun to his head. So that was the case of Ed Johnson.

Hannah McCarthy: Ed Johnson's final words were, God bless you all. I am innocent. It was 94 years before the state of Tennessee affirmed that he was, in fact, innocent.

Chief Judge Travis McDonough: One of my Early memories of being an associate here in town was actually going to the hearing at which Ed Johnson was was pronounced innocent by a former criminal judge.

Hannah McCarthy: Chief District Judge Travis McDonough.

Chief Judge Travis McDonough: And it's such an impactful story and such a, you know, a sad story and a story that says a lot about our history, that, you know, once you learn about it, you tend not to forget about it.

Nick Capodice: So what did happen in the end? How did the Ed Johnson case become the Shipp case?

Hannah McCarthy: Here's Michelle Deardorff.

Michelle Deardorff: They say you cannot execute this man until we're able to take a careful look at this case. And they execute, you know, the mob comes anyways. There's clear evidence that they were aided and abetted by the sheriff and his men. And then the court has to decide, are they going to actually intervene? And so they bring in investigators, they hold the trial and. Yeah.

Hannah McCarthy: And Mackenzie Gula, again.

Mackenzie Gula: The Supreme Court stepped in, did its first ever and only criminal court trial, and eventually sentence Sheriff Shippp to go to jail.

Nick Capodice: Wait. Hold on. Hannah. The Supreme Court actually held a criminal trial. Is that something that they do? I thought this is something that they did not do.

Hannah McCarthy: They did it. Like Mackenzie says, though, first and only time Shippp and others went to prison, though only briefly. But the Supreme Court didn't fully answer the question of federal intervention in state criminal proceedings.

Michelle Deardorff: This case seems to me, with us versus Shippp, this moment where we could actually reconsider our understanding of the 14th amendment and what it had the capacity to do. But yet it doesn't. Us versus Shippp just sits there. Judge Collier makes a fascinating kind of argument of ways in which he sees this case kind of showing up where the courts decide to implement their own decisions. And he thinks particularly around Brown and these kinds of cases. And then that's possible. But when it comes to criminal law, it just sits there.

Judge Curtis Collier: It took a while to do it.

Hannah McCarthy: Judge Curtis Collier.

Judge Curtis Collier: The Supreme Court took this case to look at that issue. And because they had Johnson was murdered on the Supreme Court, did not answer the question. The question came up again about ten years later in a case out of Marietta, Georgia, involving a Jewish man named Leo Frank, and they addressed the issue. Then they fully addressed the issue, but they decided that Frank's facts did not allow them to render a decision. And then about ten years after that, a case arose not far from my hometown and he Lane, Arkansas, where the dress issue and they said, yes, if a state trial that has the form of a fair trial, but in reality it's not a fair trial. Then the federal courts have a role and the United States Constitution comes into play.

Michelle Deardorff: I mean, I teach con law. I'd never really taught this case because it doesn't get referenced much again. So I do now because we're here, it seems students need to understand that because they live here. But for a system based on precedent, this case being so remarkable seems to have very shallow footprint when it comes to precedent.

Chief Judge Travis McDonough: What is important about it is that it was the Supreme Court acknowledging that the federal courts had a role to play after some terrible things had happened in a state criminal prosecution that augured in decades and decades of federal courts reviewing some of the worst injustices that had happened in state courts. That has evolved. And but at the time that it happened, it was a somewhat unique occurrence, and it opened the eyes of federal court practitioners that this was another way to seek justice for those that had perhaps been denied justice in state criminal litigation.

Hannah McCarthy: We're going to take a quick break. And when we're back, I'm getting to the point, which is hope.

Nick Capodice: You know, I was honestly starting to wonder. But before that break, quick reminder that Hannah and I have a book with a breakdown of many landmark Supreme Court cases and a ton of other stuff. It's called A User's Guide to Democracy How America works. It is fun. It's for everyone. It makes a really good gift. In fact, it just keeps on giving. You can find it wherever books are sold. And we got a link to it right down there in the show notes.

Hannah McCarthy: We're back. We're talking about a case, a place, a program, and the people who were changed by it. By the way, just so you know, if you or someone you know might be interested in this program, the Supreme Court Historical Society's hometowns program, which is free. We will have a link to it in our show notes and on our website. Now, I want to jump back in with someone who can give us a fuller picture of Chattanooga at the beginning of the 20th century.

Alicia Jackson: Well my name is Alicia jackson, and I'm a professor at Covenant College, Lookout Mountain, Georgia, and teach and research extensively on African American history and primarily with a strong interest in reconstruction period, late 19th century, and extending into the early 20th century. My role was primarily to give an overview of African American life before the Civil War. Chattanooga's role in it. And then also talk about what happened during the Civil War. After the war, and also give a sort of a broader context about the reconstruction period. And will it help to define for the students what reconstruction is?

Nick Capodice: We have a whole series on reconstruction that would make a good supplement to this episode, by the way.

Hannah McCarthy: I think it would, especially when we think about the false narrative that has been spun about the black community when it comes to the post reconstruction era. How is it that the justice system so utterly failed a young, innocent black man, years and years of purposeful undermining by his white neighbors?

Alicia Jackson: And so that is what you see happen, is that especially if you think about a place like Chattanooga, where you have black political leadership, black economic development, and in many ways challenging that idea about sort of this complicit black individual who's just going to do whatever the white person wants them to do. Sort of just serve the white community. Um, the magical Negro or sort of that, that mammy kind of caricature. Then there are threats. And so I think that is that is so embedded in the culture, especially during the late 1800s, the reconstruction period. And beyond that, I think the atmosphere was ripe to go after someone like Ed Johnson. So it's not only is it the idea about this economic competition, but also don't, you know, black men have this this proclivity. I mean, you see this in the secession proponents they're talking about, you know, the black men are going to start wanting to marry, um, you know, white women and all that. So there is sort of a really beginning of that. But when they see black individuals having political power, economic power, and challenging the system, that's even more why you're going to see, again, I think, this sort of huge backlash.

Bella Craig: Chattanooga has a lot of racially tense history.

Hannah McCarthy: Bella Craig, again a mentor in the hometowns program.

Bella Craig: The north side of Chattanooga used to be a predominantly black area, and now it's completely flipped on its head. I think keeping in mind, like the history of who used to live in these areas, and not that that isn't taking place, there's a lot of preservation, maybe not enough preservation, in my own opinion. So I think telling.

Alicia Jackson: These stories, having a community around saying, you can make it, I'm here for you, you know, sort of having that embracement and that embracing of that. I think in many ways it's such a detriment, particularly to the black community. But I would say to the broader community as well. Um, but I just think these stories have to be told. And that's part of the what's one of my missions in the work I do is to make sure that these are collected and preserved and shared.

Bella Craig: I feel like preservation is something we should focus on a lot more, just not only just the history of black chattanoogans as like a mass, but like there are specific, so many memorable figures in this story who did so much to, like, aid the pursuit of justice, even if it was flawed, not on their end, but on the system's end. I just, I just really think it's important.

Alicia Jackson: I don't want I don't want people to walk away thinking that people just passively and tacitly accepted what happened, or that the black community has ever done that. Um, there are ways that many people maybe not visible to the broader community where people challenged what was going on. And so, as I mentioned at the beginning, whether it be enslaved individuals getting their freedom. Um, running away to Chattanooga, That's what they did, whether it be black individuals creating their own hospitals because they can't be served at the white hospital training nurses, particularly thinking about Emma Wheeler, you know, training nurses to be able to provide care for the black community, or GW Franklin providing services for the dead because white undertakers wouldn't handle black bodies, but in turn investing in their communities and becoming individuals who are trying to, in many in their ways, challenge what's going on. I think that's, I think, an important story to tell. I don't know what happened to Ed Johnson is horrendous, and I think in no way should be lessened. But to understand that people didn't just accept this, they found ways to challenge what was going on.

Bella Craig: I walk across Walnut Street Bridge like every weekend. It's amazing. It's a beautiful place and two people have died there. There were two men lynched there. Um, it wasn't just a Johnson. There was a man before him. And so, in sake of preservation memory in the form of, like, everyday, you know, acknowledgment I think is huge. But memory also in the form of our city is very proactive civically. We have so much involvement in politics, I feel like and maybe that's just my perception, but there's a lot we can do.

Hannah McCarthy: We're going to take a quick break. When we're back. A much needed reminder, at least for me, of why we're here and what we can do.

Hannah McCarthy: Thank you. We're back. And. Well. THis is what I learned reporting about the hometowns program. So I told you at the beginning of this episode that researching for it and interviewing people for it gave me this sense that people really do care whether they're in charge or not. Judges, teachers, students. And they don't just care. They're actively involved in this country and they want that for others. It's something that became clear pretty much in every conversation that I had about the hometowns program. I went into this thinking I would learn about this thing, and I would share it with you. Pretty straightforward. But I came out of it realizing that it doesn't much help a soul to wonder if anybody is there, if anybody cares. Because they are, and they do, and they are trying to get us to listen.

Myles Farr: That even a city that was considered progressive at the time would still allow such atrocities to occur in both, both inside and outside the courtroom. It did, of course, instill a sense of disappointment, but I still believe that that's important, that, um, I and my colleagues learned about all of that so we could hopefully do better in the future.

Hannah McCarthy: Myles Farr, High School senior.

Alicia Jackson: I can't tell you how many students across the racial spectrum who are like, I can't believe I didn't learn this. I can't believe I didn't learn this. Why didn't I learn this? I know a.

Mychael Fennessey: Lot of them were like very surprised by like, you know, what happens in the case.

Hannah McCarthy: Michael Allen Fennessy, a college student at the University of Tennessee at Chattanooga and a mentor in the hometowns program.

Mychael Fennessey: Um, and how what you would think of justice or how our justice system works today was definitely not happening then. So many obvious, like, floors. And so those are things that they couldn't completely wrap their head around because they were like, wait, wait, wait. I've been I've been taught about these values that our country, you know, supports and pushes, but that's not what's happening here. And so I guess it takes a bit to like, understand the complicatedness of it. And like I was saying earlier about how our system just continues to build off of itself. And so it takes really awful cases like these for people to build up and make that change that needs to be changed.

Myles Farr: Well, of course it's easier to look back on things. It always is. It's easier to look back at atrocities without, say, both the raids Feltes across Chattanooga at the actual case of Ed Johnson and the attempted lynchings and such. However, it was also the fact that I believe my colleagues in the program were not the voice of our generation, but were certainly voices of our generation. We in the program both want to make a difference, and some of us even could be making a difference as we speak.

Mychael Fennessey: A lot of people are averse to history. I feel like a lot of times I tell people that I'm a history major. They just talk about how much they hated their history subject or history in school, or they hated their history teacher. Um, which really sucks because I love history, and I really wish other people could see why it's so important. And so with programs like this, you take it outside of that classroom environment that people may not be so prone to like, listen or understand or really get why what they're talking about is so important. Um, and with this, like it was optional and it was a very fun program. It was very engaging. You know, we went and toured the sites that we talked about. Um, and so doing it like this, it makes it feel more real. It makes the history feel more alive. I feel especially like they also were like, engaging with lawyers and judges who could speak on the legal system and why exactly this case should not have happened the way it did. So this way it was. It was a really it was a great way to make it feel real.

Taylor Nelson: And I think it's so important that not everybody knows that, that it wasn't always like this.

Hannah McCarthy: Taylor Nelson, college student mentor in the hometowns program and a legal assistant.

Taylor Nelson: Those rights weren't always there. So the shift in the early 20th century that gave criminal defendants more rights, I didn't even know that they were so little rights for criminal defendants.

Mychael Fennessey: People understand that maybe mistakes were made, or maybe this shouldn't happen again in the future. And so then there's legislation or judicial processes to fix it. And so it's really interesting to think about history like that in terms of like mistakes being fixed.

Myles Farr: I see Chattanooga as both a relatively progressive city, and I believe Chattanooga is doing better, but I it is important to remember, in my opinion, that we were not always like this. We were not always perfect. We still aren't perfect, but it's important to know why we have to do better and why we have to make certain nothing like it ever happens again.

Judge Curtis Collier: Another thing that is important for people to understand is that we don't have robots making up our court system.

Hannah McCarthy: Judge Curtis Collier again.

Judge Curtis Collier: We have human beings. We have men and women who are fallible, and they're prone to make mistakes just like everybody else is prone to make mistakes. The system, though, is designed to second guess them. That's why a court of appeal. That's why we have a Supreme Court. But if you look at the infallibility and perfection of the federal courts, you're looking in the wrong place. Uh, you won't find it there. And sometimes we make mistakes out of, uh, biases, prejudices and animosities. Sometimes we make mistakes for other reasons. And having the ability to go to federal court to have a conviction looked at is very important.

Taylor Nelson: The biggest thing I recommend for people is especially in the judicial system, is go and watch. There's nothing stopping you from going and observing a proceeding. Nobody's going to get mad at you.

Nick Capodice: Can I hop in here with a quick anecdote about this, Hannah?

Hannah McCarthy: Yeah. Go ahead.

Nick Capodice: So this is one of the greatest things that my government teacher taught me in college. One day he said to us, go to the courthouse. Ask for the clerk of courts office. They have a list of cases being heard that day, and you can watch any trial. And I did, I did I watched the trial and I was shocked that I could do it.

Hannah McCarthy: Yeah. I mean, the Sixth Amendment says, quote, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial and You you right here listening are the public.

Taylor Nelson: You're allowed to be there. And I think that experience for the students kind of opened their eyes. You know, this is what happens from what I'm taught in government class. You know, there's so much more to this. And I think also shedding some light on some of the negative aspects of American government, kind of like, you know, the Ed Johnson case be very, very awful handling of that case by the judiciary, um, at least the local judiciary kind of shed some light on, oh, this is the history that gives us the rights that we have today. And I think, you know, schools can tend to, you know, shy away from those darker histories. But I think they're important because, you know, the age old, if we don't study history, we're doomed to repeat it. And I think that's so true. And I think that the students really did come away with a, oh, this really somber thing happened. But it was so important for our institutions and for our furtherance of rights that we have now.

Judge Curtis Collier: The federal courts belong to We the people. We the people own the courts. We the people, either directly or indirectly control the courts. And because you own the courts, you have an obligation to make sure the courts are operating efficiently, effectively and the way you want them to operate. How do you carry out that responsibility? You carry out that responsibility by being more involved. Reach out to your local federal court. Come and visit the federal court. Talk to the judges and educate your family members, your coworkers, and your friends and associates about what the federal courts do and why they're important in our society.

Taylor Nelson: You know, if you don't protect the civil rights and liberties of people who, you know, may or may not have as much knowledge of them, then who's going to be next?

Myles Farr: Essentially, it is our not only duty, but responsibility and rights to make a better society for both ourselves, our neighbors and our descendants. And to anyone who thinks that we can just put it off or that we can't do anything about it, I say that not only do I think you're wrong, but I also feel sad that you think that.

Taylor Nelson: I understand that this thing is negative, and at the same time understand that I have the ability to change it. I think people who kind of live in cynicism really take away from the civic duty that, you know, all American citizens have. We need to.

Myles Farr: Make sure that the changes we want to happen are not only made nationwide and statewide, but even down to the city, neighborhood and even house. In the end, we just need to make sure that within each generation we improve life for the next generation.

Taylor Nelson: And I think that a lot of people always have this idea that, oh, well, it'll never be me until it's you, until it's your brother, until it's your family member, until it's your friend. And then you know you want to help them so bad, but you just don't know. And I think sometimes it does take that situation for people to kind of be aware of, oh, well, now I don't know what to do to help my friend who's in this legal predicament. Well, now I need to educate myself. And I think maybe kind of bringing this awareness towards the concept of it could be you who's wrongfully convicted, it could be anybody. And I'm not trying to, like, be scary or anything, but I think it is important to understand if you don't know your rights, you can't advocate for yourself. And I think advocating for yourself as a citizen is the most important thing you can do. It's the most active thing you can do for yourself.

Nick Capodice: So, Hannah, when you texted me that you were crying as you were going over the interview transcripts, is this kind of what you meant?

Hannah McCarthy: Full disclosure does not always have to disclose every single detail, Nick. But yeah, this is what I meant. There is so much cynicism, there's so much dread, so much misinformation, so much unknown in this nation, especially I feel lately. But when a group of students and educators and judges say, actually, there is a real and true path to understanding and participating in and preserving this democracy, it was an important reminder to me of the myriad good hands that our nation and our rights rest in. So yeah, I guess I'm holding out hope.

Nick Capodice: I'll join you.

Hannah McCarthy: This episode was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Timothy Infinite, V.V. Campos, Adelyn Paik, Twelwe, Particle House, and Chris Zabriskie. You can learn everything you want to know about the Supreme Court Historical Society's Hometown program by going to their website, SupremeCourtHistory.org, or by clicking the link in our show notes. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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This podcast is a production of New Hampshire Public Radio.

What is the Cabinet? And how can appointments work?

Whenever there's an incoming administration, there's a big to-do about Cabinet nominations. So what does The Cabinet DO? How has it evolved since  Washington's administration? What is the process for appointing someone to the cabinet? And finally, how could a president appoint someone without approval from the Senate?

Taking us through all the cabinetry is Dan Cassino, professor of government and politics at Farleigh Dickinson University. 

CLICK HERE TO BUY TICKETS FOR NHPR'S WINTER RAFFLE AND YOU COULD WIN $15K IN TRAVEL CREDIT TO GO ANYWHERE! (OR 10K IN CASH!)

To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro. 


Transcript

Speaker1: [00:00:01] New Senate Majority Leader John Thune, incoming next year. Today seemed fairly open to Trump's idea of bypassing Senate approval of his cabinet picks by using recess appointments. Is that how this is going to go down?

Speaker2: [00:00:13] Checking your rule book that you won't find anything in there that says a dog can't play.

Nick Capodice: [00:00:18] You're listening to Civics 101. I'm Nick Capodice, I'm.

Hannah McCarthy: [00:00:21] Hannah McCarthy.

Nick Capodice: [00:00:22] And today we are answering not one, but two listener questions. We've gotten some amazing ones already. If you want to ask one, just give us a holler at Civics 101 at nhpr.org. Okay. For today, first off, we've got Maddie from Nashville, Tennessee.

Speaker5: [00:00:39] Oh, I love Nashville.

Nick Capodice: [00:00:40] Me too. I love the city and the Robert Altman movie.

Speaker6: [00:00:43] Don't take it easy now. This isn't Dallas, it's Nashville.

Nick Capodice: [00:00:47] And here's what Maddie wrote to us. I just recently started listening to and very much enjoying your podcast. Can you explain what the president's cabinet does and why they are important? How much power does the chief of staff actually have? Every political TV show, not the strongest frame of reference, I know, makes it seem like the president is just a puppet for their cabinet and the people behind them.

Hannah McCarthy: [00:01:10] Interesting. Excellent question. Mattie.

Nick Capodice: [00:01:13] Truly. All right.

Hannah McCarthy: [00:01:14] And what is the other listener question?

Nick Capodice: [00:01:15] Yes. It's tied to Maddie's. This one is from Chris McAdams in Atlanta, GA.

Hannah McCarthy: [00:01:20] Another beautiful city.

Nick Capodice: [00:01:22] Absolutely. Chris writes. One thing I keep seeing alluded to is that the president elect can invoke article two, section two of the Constitution to recess Congress and make recess appointments not requiring Senate confirmation. Oh, yeah.

Hannah McCarthy: [00:01:38] Can we get into that? Can that really happen?

Nick Capodice: [00:01:40] We will get into that. Hannah, we're going to answer Maddie first with sort of a broad overview of the cabinet, and then we'll get to Chris's question as there are rumblings of president elect Donald Trump doing just that recess in Congress to ram through politically unpopular cabinet appointments.

Speaker7: [00:01:57] Kennedy has been critical of vaccine safety and called for the removal of fluoride from public water.

Nick Capodice: [00:02:02] I do think the.

Speaker8: [00:02:03] Only way Matt Gaetz will become attorney general is by a recess appointment. I don't think he can get the votes to be confirmed through regular order.

Nick Capodice: [00:02:10] All right, so push aside the garlic powder and get the red pepper flakes, cause today it's all about the cabinet.

Hannah McCarthy: [00:02:18] Okay. The cabinet. These are the heads of various executive departments. Secretary of state of the Treasury, of Defense, etc., of all 15 executive departments.

Nick Capodice: [00:02:31] Right. And this includes the Attorney General, who is the head of the Justice Department. And sometimes other people are in the cabinet too. I'm going to get to that.

Hannah McCarthy: [00:02:38] Is the cabinet in the Constitution.

Dan Cassino: [00:02:40] The cabinet is actually not in the Constitution.

Nick Capodice: [00:02:43] To know him is to love him. Our first face on the Civics 101 Mount Rushmore, Dan Cassino. You want to do the other part?

Hannah McCarthy: [00:02:50] Of course I do. Professor of government and politics at Fairleigh Dickinson University. I never get tired of saying it.

Nick Capodice: [00:02:56] Did you ever notice that his initials are DC? I never. He probably gets that all the time.

Dan Cassino: [00:03:01] The cabinet is implied by the Constitution, but not actually in there. Nowhere in the constitution say cabinet. We actually have no indication that anyone in the US called it a cabinet until late in George Washington's first term. Cabinet actually is a word like privy. It actually just means like a closet, like a small room. And the deal was that the king in the in England would consult with his closest advisors in a small room, hence a cabinet. And so cabinet becomes a term that just means close advisors in the Constitution. There was the idea that the president would have a group of people that he would consult with. All we get in the Constitution about the first cabinet is that the president is can require the heads of agencies to issue him reports.

Hannah McCarthy: [00:03:43] What were those first cabinet level agencies?

Nick Capodice: [00:03:47] Well, we had the Secretary of State who was in charge of overseeing foreign affairs. Secretary of War feels pretty self-explanatory. Yeah. Secretary of the Treasury. Also pretty self-explanatory. And the attorney general? The chief law enforcement officer in the country.

Dan Cassino: [00:04:02] It's not clear what exactly the job is supposed to be, and we're all just making this up as we go along. It's all very vague. Remember, this is article two of the Constitution. So we were trying to knock this out and get it done before Rhode Island showed up and messed everything up. So it's all a little vague.

Nick Capodice: [00:04:15] And like so many things, if we want to understand the cabinet, we got to look at the first people who had the job.

Dan Cassino: [00:04:22] George Washington, though, really does make use of the cabinet in a way that nobody after him really does, which is George Washington says, you know what? I'm not the sharpest tool in the shed. I'm not the smartest guy I know. Right? The smartest guys I know are Thomas Jefferson and Alexander Hamilton.

Hannah McCarthy: [00:04:37] Jefferson being the first secretary of state and Hamilton being the first secretary of the Treasury. Right.

Nick Capodice: [00:04:44] And there were the less remembered Edmund Randolph and Henry Knox serving as our first AG and Secretary of War, Respectively.

Dan Cassino: [00:04:51] So what Washington does, whenever he faces a difficult problem, he actually convenes his cabinet. He brings together Hamilton and Jefferson and, you know, the other people that no one really cares about. And he says, what am I supposed to do about this problem? And he has them argue, and then he often gives them homework where he will say, all right, you guys have both made a good argument. Go home and write me down what you think I should do. And Washington then looks at what they've written and then just does whatever Alexander Hamilton said to do. So the cabinets under Washington winds up being phenomenally important, because this is not only where we get the precedent for how cabinet is going to work, but also this is where the party system in America comes from.

Hannah McCarthy: [00:05:29] Hang on. How does Washington's cabinet create America's party system?

Nick Capodice: [00:05:33] Well, Hamilton and Jefferson famously did not agree a lot of the time. So to convince Washington they would each go out and try to build up public support for their ideas, and they did this by creating Salacious newspapers that talk smack about each other and bolster their own arguments. Dueling newspapers, dueling ideas. And we end up with our first dueling parties, the Hamiltonian Federalists versus the Jeffersonian Democratic-Republicans.

Hannah McCarthy: [00:06:05] Quick question here. Is the vice president in the cabinet.

Nick Capodice: [00:06:09] Ah, well, they are now, but they weren't initially.

Hannah McCarthy: [00:06:12] Why is that?

Dan Cassino: [00:06:13] The excuse for this is that Washington was very concerned with separation of powers, you know, separation between the executive branch and the legislative branch. And because the vice president has his only powers in the Constitution are legislative in nature. He presides over the Senate. Washington said it was inappropriate for the vice president to be involved in executive deliberations, because that would be a violation of separation of powers. Also, we think he just didn't like John Adams very much. And so this is a good excuse to not have John Adams hanging around.

Speaker10: [00:06:39] He's obnoxious and disliked. Did you know that I hadn't heard.

Nick Capodice: [00:06:43] Now, this did change. In the 20th century. Vice presidents began to be included in the cabinet.

Hannah McCarthy: [00:06:48] So Vice President Kamala Harris is in President Joe Biden's cabinet. She is a member of the executive branch, but an officer of the legislative branch. Exactly. Now, Dan said Washington listened to his cabinet, but other presidents did not.

Nick Capodice: [00:07:05] Yeah. Further administrations were far less likely to seek advice from the cabinet.

Hannah McCarthy: [00:07:11] What was the role of the cabinet, if not to tell the president what they thought they should do?

Dan Cassino: [00:07:18] If we're in the 19th in 19th century politics, the cabinet is important because the cabinet actually controls a lot of the opportunities for corruption and graft. You know, 19th century politics is all about getting kickbacks. Post Andrew Jackson, you put all your own people in power, right? So the federal government is just filled up with all of your points. If you're a Democrat, you appoint Democrats. If you're a Republican, you appoint Republicans, if you're a Whig, if you're a Whig, you don't do anything. But that's the whole point of the Whig Party. So both parties are just filling up everything with their own people. And so you have to put someone in charge of that to make sure that you are putting the right people in place. And how do you know the right people, the loyal members of your party, and they're going to kick back some portion of their salary to in order to fund the party and keep the party machine rolling. The cabinet leaders wind up being really important to local politics if we are in the 19th century. The person who's likely to take over as president, the heir apparent for the current president, is not actually the vice president. It's really the secretary of state is the person who's going to take over as the likely next president. So the secretary of state is a really important job.

Hannah McCarthy: [00:08:18] And how many secretaries of state became president.

Nick Capodice: [00:08:21] In the 1800s? An awful lot. Six of them in about 50 years. But that trend ended with James Buchanan in 1850. He was our last one.

Dan Cassino: [00:08:31] So Congress, over the course of the 19th century into the 20th century, establishes more and more executive departments. And this gets constitutionally really iffy because think about why Congress is doing this. So let's take something like, I don't know, the Commerce Department, Commerce Department. Their job is to kind of standardize measurements and standardize and facilitate trade things like. All right, how wide should railroad gauges be so that railroads can go between new Jersey and Delaware? Because Delaware might have a different thing than new Jersey. So we have to standardize all of this, right? This all makes sense. You walk into the hardware store, says, oh, this is an A1 nail versus an A9 nail or A4 paper. Someone has to standardize what the size of nails are and what size of papers. This all is great and important. Except this is something that Congress is supposed to be doing in the Constitution, right? This is regulating interstate trade. That's Congress's job. And what Congress decides with increasing frequency over the course of the 19th and into the 20th century, is we're supposed to do this, but boy, this is beneath our notice. We don't want to bother with this stuff. Also, we don't know what we're doing. We don't know what size should paper be. What should the railroad gauges be? We don't know. So what are we going to do? I've got an idea. Let's hire a bunch of experts and then empower those experts to do whatever they feel like they need to do?

Hannah McCarthy: [00:09:43] Okay, so this ties into what you've talked about with Dan before in that episode that you made on who exactly writes bills. This is the idea that the executive branch is responsible for all of the nuts and bolts, so to speak, of running things. So they tell Congress what bills they should write.

Nick Capodice: [00:10:03] Yeah. Congress is like you experts. You all just take care of it, and we'll just agree with whatever you say and a shift starts to happen. Hannah. The cabinet becomes a body that starts to run things and has less of a role in advising the president.

Dan Cassino: [00:10:18] The role of the cabinet throughout the course of the 20th century changes dramatically. So we at one extreme, we've got George Washington, who is relying heavily on the cabinet. Right. It's almost like a plural executive. Right. He's going through and consulting with the cabinet over almost every major decision he's going through. As the cabinet gets bigger, though, as we start adding more and more departments. Presidents are consulting with it less and less and less because as the government gets more complicated, the role of members of the cabinet, the role of heads of departments changes. Because suddenly your job isn't like Thomas Jefferson to have big ideas about what the government should be doing. Your job is actually running a bureaucracy, right? Department heads are now much more like the Secretary of the Treasury is not just some guy with big ideas about how to develop America. He's running what's essentially a giant corporation. He's the CEO of the Treasury Department. You know, the Secretary of state is in charge of the State Department. These are huge organizations.

Hannah McCarthy: [00:11:15] Pause here for one second. The executive branch, these various secretaries and the agencies under them, they run things, right? Right. But the president is the head of the executive branch. So who is in charge of whom? Is it the secretary of. For example, agriculture. Who has the final say when it comes to farm subsidies or is it the president?

Nick Capodice: [00:11:40] A very good question, Hannah.

Dan Cassino: [00:11:42] So if I, as Congress, have now delegated power to executive to executive department, have I delegated that power to the president? Because that's where all the executive power is. Have I given up my power to the president or to a department? And that gets really tricky. We have inklings of the problems with this going back to the Jackson administration, right. Andrew Jackson, not really one of your founding fathers. He is an outsider. He is blowing everything up when he gets into office. He doesn't really care for the norms and rules that have gone in before him in the presidency. So when he's in office, he has this big fight over the National bank, Biddle's bank war, right? Andrew Jackson does not trust banks Fidelity Fiduciary Bank. He doesn't trust banks. If you ask him, he'll say it's because of the South Sea bubble, something that happened several hundred years beforehand, the.

Hannah McCarthy: [00:12:29] South Sea bubble.

Nick Capodice: [00:12:31] I'm not going to get into it. The South Sea Company was involved in enslaving people and whaling it collapsed. Long story short, Jackson hated the idea of a national bank. He hated it so much, in fact, that he used his veto power to try to get rid of our national bank. But it still stuck around. So to put a stake in its heart, he went to his Secretary of the Treasury and says, take all of the money out of the national bank.

Dan Cassino: [00:12:58] And Secretary Treasury says, no, that would be that would cause a financial crisis. By the way, he was totally right. It caused a giant financial crisis. What does Jackson do? He fires him and says, next guy in line, hey, you go pull the mighty National Bank or not, and eventually get somebody who will in fact pull the money out of the national Bank. This, of course, is going to upset Congress. Like, wait, we delegated this power to the Secretary of the Treasury, not to Andrew Jackson. What the heck, right. Is he allowed to do this or not? And the answer is, well, he did it. So I guess we're playing by Airbud rules here.

Speaker6: [00:13:27] Ain't no rules to the dog. Can't play basketball.

Dan Cassino: [00:13:30] There's nothing that says he can't do it. So he's going to go ahead and make that happen.

Nick Capodice: [00:13:36] And this happens again and again. Andrew Johnson directly opposes reconstruction policy passed by the majority Republican Congress. So Johnson wanted to fire the Secretary of war. But Congress had passed a law saying a president couldn't do that without consent of the Senate.

Dan Cassino: [00:13:54] So what does Johnson do? He fires the secretary of war. Congress decides we're going to impeach this guy. We're going to impeach Johnson because he violated the law.

Nick Capodice: [00:14:01] And to be clear, he was not removed from office by one vote.

Hannah McCarthy: [00:14:07] Before we move on, you said earlier that other people could be in the cabinet in addition to these executive department heads who can be in the cabinet.

Nick Capodice: [00:14:19] So like we mentioned earlier, the veep is now in the cabinet. But in addition to the executive heads, it can change. For example, as a rule, if you're a Democratic president, the head of the EPA is going to be in your cabinet if you're a Republican, they won't. Sometimes the ambassador to the United Nations is in it, sometimes they're not.

Hannah McCarthy: [00:14:39] Now, you know, Nick, that I'm a big fan of Leo McGarry.

Speaker11: [00:14:44] Tired of it. Year after year after year after year, having to choose between the lesser of who cares? Of trying to get myself excited about a candidate who can speak in complete sentences, of setting the bar so low I can hardly look at it. They say a good man can't get elected president. I don't believe that. Do you?

Speaker12: [00:15:05] You think I'm that man? Yes.

Hannah McCarthy: [00:15:09] For anyone out there who has not stayed up late at night sobbing over the better seasons of The West Wing, Leo McGarry is President Bartlet's chief of staff. Nick is the chief of staff in the cabinet.

Nick Capodice: [00:15:21] They have been recently and this started with some regularity under Richard Nixon.

Hannah McCarthy: [00:15:26] What exactly does the Chief of staff do?

Dan Cassino: [00:15:29] The chief of staff's job under most presidents and does vary by presence. Chief of staff's job in general, is to control access to the president, to decide which problems are big and important enough that the president has to pay attention to these things. And in effective presidencies, he is the guy who has to go in and tell everybody, no, you're important, but you don't get to talk to the president. You have to control access to to the president and ineffective presidencies. No one does that. Um, George Stephanopoulos talked about the early years of the Clinton administration, talked about it being like a bunch of eight year olds playing soccer. Right. Like, everyone in theory has a position, but in practice, everyone's just running around chasing the ball. If you remember the year the Clinton administration and I do, because I'm old, you would notice. Yeah. They didn't get a whole heck of a lot done because Bill Clinton was off talking to everybody and having a great time and not actually focusing on the stuff you probably should have been focusing on.

Hannah McCarthy: [00:16:16] Nick, I feel like I have a handle on the cabinet now. I would love to talk about appointing people to the cabinet.

Nick Capodice: [00:16:23] You got it. We will talk about Senate confirmation, and we're going to get to Chris's question about appointing people during a recess. But first we got to take a quick break.

Hannah McCarthy: [00:16:32] And before that break, a reminder, you can drop us a line at Civics 101 at nhpr.org. That is our email address. Ask us your questions and we will do what we can as quickly as we can. And thank you. We're back. You're listening to Civics 101 today. It is all about the cabinet. So, Nick, appointments to the cabinet happen after a president assumes office, even though to varying degrees, especially as we have seen lately, most incoming administrations make a lot of political hay by revealing who they intend to nominate.

Speaker13: [00:17:14] Is what we're seeing. President elect Trump do not just in the health space, but in the legal space and in the national security space, a desire based on the results of the election and Trump's belief that his supporters want him to do this to seriously disrupt the status quo.

Hannah McCarthy: [00:17:29] Does every cabinet member require Senate approval?

Nick Capodice: [00:17:34] They do indeed. And here is the constitutional chunk tied to this. The old two, two, two. Article two, section two, clause two. Quote he and he. Here is the president in the Constitution he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for.

Hannah McCarthy: [00:18:00] And how many votes in the Senate does a nominee need to be appointed?

Nick Capodice: [00:18:06] It's a simple majority 51 votes. Here is Dan Cassino again with the Senate confirmation process.

Dan Cassino: [00:18:13] So all of these agency heads, of course, are subject first to approval by the Senate and second, to being brought up to the Senate and being forced to ask questions as part of Congress's oversight procedures. And there's been a big fight over the course of the 20th century as to to what extent Congress actually can make them answer questions. So if we go back to the 19th century, that was, of course, Congress can call up anyone they want and ask them whatever questions they want. Part of the oversight. Fine. By the time we get to the 20th century, not so much. Think of Dwight Eisenhower. When Eisenhower was in office. We've got the Red scare. We've got the House un-American Activities Committee. And Dwight Eisenhower is just sick of these guys. Sick of Joe McCarthy. Joe McCarthy is demanding all the security files and everyone in the State Department and Eisenhower just goes, yeah, no.

Speaker10: [00:19:00] But once, once you have this United States covered with a network, a network of professors and teachers who are getting their orders from Moscow.

Hannah McCarthy: [00:19:13] No relation. I feel like I have to say that every time Joe McCarthy comes up.

Nick Capodice: [00:19:17] I am in full support of that. Hannah.

Dan Cassino: [00:19:19] Now, this is actually a huge power grab on the part of the executive to say, yeah, we're going to ignore your oversight power. We're not going to do it. But basically everyone hates Joe McCarthy at this point. So we're like, yeah, all right, that's fine. And not realizing that sets up a precedent where future presidents can go, yeah, I don't want this guy to testify. So he's not going to testify.

Hannah McCarthy: [00:19:35] Wait, so nobody testifies before the Senate anymore? No no.

Nick Capodice: [00:19:39] No no. They do. This is one of those rare times where a branch sets a precedent that gives them a ton of unchecked power. But then they say, no, let's just opt to do things the more traditional way.

Hannah McCarthy: [00:19:52] Why?

Nick Capodice: [00:19:53] Because in the end, everybody has a government to run.

Dan Cassino: [00:19:58] At the end of the day, a president can certainly have a big fight with Congress over who testifies, over how much, over what an agency head does. You can fight Congress over that. But the more you fight Congress over that, the less likely Congress is to give you what you want when you're trying to negotiate with them later. And so Congress, as a result, just presidents. Yeah. Just, you know, play nice because we're going to need these guys to pass a budget next year. And we don't want to burn all of our bridges right now.

Hannah McCarthy: [00:20:22] I appreciate that, but let's say that there is a chief executive who does not care a bit about burning bridges, and they put forward a nominee who will almost certainly fail Senate confirmation. How could such a president hypothetically bypass this whole process?

Speaker14: [00:20:42] You said that recess appointments are on the table. That's a key demand from president elect Donald Trump.

Speaker15: [00:20:46] Will you move forward with that? Well, what we're going to do is make sure that we are processing his nominees in a way that gets them into those positions so they can implement his agenda. Um, how that happens remains to be seen.

Nick Capodice: [00:21:01] So I asked Dan Chris question directly about recess appointments, and here's what he said.

Dan Cassino: [00:21:06] Let's talk a little bit about what questions that one of the listeners had, which is about recess appointments, recess appointments. This is in the Constitution. The idea is that if Congress isn't around because remember early part of the Republic before the 18th and 19th century Congress wasn't around. Most of the time they were back in their home districts. And so in the Constitution says, you know, if there's no if Congress is not around, the president can make a recess appointment. And presidents did this with great regularity up until the 1970s. And why did it end in the 1970s, end of the 1970s? Because of Richard Nixon. Presidents were making recess appointments, and presidents at the same time were also making use of what we call pocket vetoes.

Hannah McCarthy: [00:21:45] I need a quick refresher here on the pocket veto.

Nick Capodice: [00:21:48] Absolutely. So after Congress passes a bill, it goes to the president's desk. After that, the president has ten days to sign it into law or to veto it, to say, no, I don't want this bill or it does get signed into law. Now, a veto can be overridden if two thirds of both houses say, no, no, no, we really want this bill. And this has happened about a hundred times in US history. But a pocket veto is different. It is very sneaky. Bill goes to the president's desk. President doesn't do anything. And before ten days are up, Congress goes out of session. The bill is in effect vetoed. In fact, it is perma vetoed. It can't go back to Congress for a potential override. And this a pocket veto has happened about a thousand times.

Dan Cassino: [00:22:39] So we have these two powers, recess appointments and the pocket veto that come into effect whenever Congress is out of session. So Richard Nixon, in his long term attempts to increase executive power, decide to push the envelope with what counts as Congress being in recess. So, sure, Congress between sessions, whether it's in Congress, adjourns in the middle of December and tell the new Congress comes in in January. All right. That's a big recess. Cool. What if Congress goes away for a long weekend? Is that a recess? And the answer is Richard Nixon says, looks like a recess to me. You guys aren't around. So even if I have a 2 or 3 day recess, I'm going to put in appointments. You know, I'm going to put in these appointments and I'm going to even pocket veto bills because Congress is out of session. Yeah. So Nixon pushes the envelope with this in Congress, jealous of its power, jealous of its authority, pushes back. And Congress has an ingenious plan to make sure the president can't make recess appointments and can't pocket veto bills, which is Congress decides. What if we just never went out of session? How do you do it? Well, every 2 or 3 days when Congress is out of session, you send someone and by someone. For most of the 1970s named Joe Biden.

Speaker10: [00:23:54] The youngest new face in the U.S. Senate next year will be that of Democrat Joseph Biden of Delaware. So young, in fact, that at the time of his election on November 7th, Biden was not yet old enough to serve.

Dan Cassino: [00:24:06] Because he can just hop on the train and go back and go back to the Senate. And he just gavels the Senate in, says, all right, sentence in session. Oh, shoot. No one else is here. Um. All right. Cool, I guess. Sentence out of session. And he does that every couple of days. And now the Senate is never at a session for more than 2 or 3 days at a time. So therefore there can be no recess appointments and there can be no pocket vetoes because the Senate is never gone.

Hannah McCarthy: [00:24:29] Has any president in recent history made recess appointments?

Nick Capodice: [00:24:34] No. Not really. President Obama did make some. But then the Supreme Court contested them because the recess was only a few days. The Supreme Court ruled a recess has to be at least ten days for it to be one where appointments can be made.

Hannah McCarthy: [00:24:49] Back to Chris's question can a president make, like force Congress to recess?

Dan Cassino: [00:24:55] There is a clause in the Constitution that says, if the House and the Senate cannot agree on whether or not to adjourn, then the president can force them to adjourn and can call them back when he wants to. Now, this has literally never happened. No president has ever done this. And we first started hearing inklings. The first time I ever heard about this was actually towards the tail end of the first Trump administration in 2020, when there were conservative legal minds saying that the president should go ahead and do this, should go ahead and adjourn the House and the Senate. And if the president adjourns the House, Senate. Now, they're in recess. And if you adjourn them for ten days now, then recess. So if you give it ten days now, you can make a recess appointment. And that would be considered kosher.

Nick Capodice: [00:25:41] Just a quick note here, Hannah. Recess appointments only last one year.

Hannah McCarthy: [00:25:46] Really? Just a.

Nick Capodice: [00:25:47] Year. Just a year.

Dan Cassino: [00:25:48] These scores would be temporary, right? It goes until the basically a year and change until the end of the next session of Congress. But that could work. There is also some question about the extent to which you could actually do judicial recess appointments. Could you put a judge in office via a recess appointment? And the answer is air bud rules. Ain't no rules to the dog. Can't play Played basketball. There's nothing that says you can't do it. That would be weird to put a judge in office and have them go away after one year. But you could do it in theory. So the way it would work is the House of Representatives was controlled at this point by Republicans and controlled by Republicans would say, we want to recess right now, and they would send a message to the Senate saying, we're going to recess in the Senate would, in theory, go either say, okay, cool, we're in recess, at which point you're in recess. You go away for ten days, the president can make a recess appointment, or they go, no, we don't want a recess in a sense as that. Then you've got a disagreement between the House and the Senate about whether or not to recess. And then we have this never before used clause in the Constitution that kick in. The president could go. Now, you're both in recess, and I'll call you back when I want you, in theory, in ten days.

Hannah McCarthy: [00:26:52] So it could be done. It just has not been done right.

Nick Capodice: [00:26:59] And this brings me to the big point here. Regardless of what you feel politically, it has been made abundantly clear that several of Trump's nominees for his cabinet are unpopular, even within the Republican Party. And it doesn't just damage the potential nominee. If they have a grueling nomination process, it gets in the way of a new president's agenda.

Dan Cassino: [00:27:20] It's generally a bad idea to put up controversial nominations, because then that's all you're going to talk about for the first couple of months of your administration. And this is the time when you need to be passing a bunch of bills. And you can't, because the Senate's all just doing these nominations. It's generally a much better idea if you want to pass bills to get non-controversial people in there. And if you want controversial people, great. Put them in the executive office of the president, put them in the executive agents rather than executive officers, so they don't have to go through the Senate. The other side of this is that if you do decide to do recess appointments, if you do decide to do pocket vetoes, you are poisoning your relationship with Congress, right? Because Congress, if you go to Congress, say, hey, I need you to pass this bill for me. And you say, by the way, if you don't, I'm going to do it myself. Well, then why is Congress going to. Why is a senator going to put himself at risk by doing by doing you a favor if you're just going to do it yourself? Right. The Senate, I think much more in the House, is very jealous of its prerogatives.

Dan Cassino: [00:28:18] And they've historically been very jealous of prerogatives, even when the Senate and the president are of the same party, they don't want to lose power. Right. They are very worried about the power of the minority and the power of the Senate, because everyone in the Senate, almost everyone in the Senate has been in the majority and in the minority. And anyone who's in the minority in the Senate can tell you it is a miserable experience, leavened by the fact that you actually do have some power, you have some influence, you can get some things done, or you can at least stop some things from happening. And so they don't want to give up that power. And so it would be a stretch, I think, for the Senate to conspire with the president to remove power from the Senate. And if you do force things through, you've now poisoned your relationship because you're going to have to go back to these guys later and say, hey, can we pass a budget or something? And if you have upset them, if you have declared that they are not relevant, it's going to be real hard to go back and do that.

Nick Capodice: [00:29:11] Last thing about the cabinet here, Hannah. Do you remember in the recent episode about how votes are counted? We talked about people who don't trust the system, you know, deciding to run for county clerk or something like that.

Hannah McCarthy: [00:29:22] Oh, yeah. Yeah. Of course, people who think that the system is rigged and so they want to peek inside at that fantasy of this, you know, smoke filled room with a bunch of ballots just lying around. And then they get in there and they learn that there is no such room. And, you know, it's extremely bureaucratic and fraud proof in there. And they're like, well, this is more boring than I thought.

Nick Capodice: [00:29:47] Yeah. Dan said a similar thing can happen in the cabinet when, you know, a president appoints someone to head an agency because they're super loyal to the president and will do whatever the president asks, sometimes even try to destroy an agency because the president doesn't like it. But something tends to happen to these cabinet officers.

Dan Cassino: [00:30:07] Cabinet officers. There's a continuing problem. This goes back really to Richard Nixon, right? So Richard Nixon had cabinet departments. He was trying to get rid of that. He did not like. He put loyalists in those cabinet departments that also didn't like those cabinet departments. Right. So you put a guy in charge of the EPA, you know, who used to work for an oil company in the hopes that he will shut everything down. You put someone in charge of the Justice Department that doesn't want to bring lawsuits on behalf of segregation. So you do that. And even Richard Nixon and Ronald Reagan after him, and every president who comes after it winds up facing the same problem, which is when you put people in charge of agencies, they go to work at that agency every day. They they work with the people who are running the agency, the people in that agency, the people working with the EPA believe deeply in the mission of the EPA. The people working with the department believe deeply in the mission of the Justice Department. And you work with those people every day. And after a while, you wind up going, hey, I think these people are doing some good stuff, and this is a problem that every president faces. You put someone in charge of NASA, they wind up thinking NASA is a good thing, and you think you put someone in loyalist who's going to help you shut down NASA, or shut down the EPA, or shut down the part of education, and they wind up being on the side of all the people they're working with. This cabinet is much less about loyalty and much more about being part of this institutional culture. The more you, the longer the time you spend there, the more people tend to agree. Yeah, this is a good idea.

Nick Capodice: [00:31:26] But Hanna, presidents can kill an agency. They can do it. They can just zero out a budget request. They can tell everyone in the agency, you know, pack your bags. Get out of here. A president can just refuse to appoint anyone at all to head an agency. You could.

Dan Cassino: [00:31:43] Do that. Try and not spend the money that Congress has given to you. But again, anytime you do something like that, you're running into Congress. And Congress, especially in a president's second term, is really worried about their own prerogatives, because if I'm a member of Congress, I'm a member of the House of Representatives. Yeah, I'm up for election every two years, but I also have a 95% reelection rate. If I know this joke is over here for four years, I know 90% chance I'm gonna be here six years from now. I'm not going to give up a whole lot to help somebody who's going to be gone in four years. So Congress is jealous of its prerogatives. And, of course, that's the constitutional design. Congress is supposed to be very jealous of its prerogatives. And whatever president does, they're going to have to deal in the end, with Congress and with Congress trying to hold on to its own power.

[00:32:45] But. They. Don't. Yo. Yo. Yo. Yo. Yo. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba, Baba.


 
 

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Trump's "Day One" Promises

President Elect Donald Trump has said he won't be a dictator "except for day one." We take a look at all of the "day one" promises he's made over the course of his campaign and explain how he might get them done. Or not.

For a sense of how many times Donald Trump made these promises, check out the Washington Post's data here.


Transcript

Hannah McCarthy: [00:00:03] Do you want to support our show and get a chance to win $15,000 in travel credit to go anywhere in the world, or $10,000 in cash? You can buy tickets to enter NPR's holiday raffle. Get one for $50, three for $100, or six for 150 or, you know, get more. The more tickets you buy, the cheaper they get. And all of the money goes to support this podcast [00:00:30] and the work of NPR's newsroom. The deadline is December 7th. You can find a link to get those tickets in our show notes or at civics101podcast.org.

Archival: [00:00:45] You would never abuse power as retribution against anybody except for day one. Except when he's going crazy.

Archival: [00:00:53] Except for day one. Meaning I want to close the border and I want to drill. That's not a -- That's not that's [00:01:00] not retribution. I got I'm going to be I'm going to be you know he keeps we love this guy. He says you're not going to be a dictator are you? I said no, no, no. Other than day one. We're closing the border and we're drilling, drilling, drilling after that. I'm not a dictator after that.

Hannah McCarthy: [00:01:20] I'm Hannah

Nick Capodice: [00:01:21] I'm Nick.

Hannah McCarthy: [00:01:21] And this is Civics 101. President elect Donald Trump has promised to be a dictator for one day. After that, he [00:01:30] says he won't be a dictator anymore. But given the fact that no president elect of the United States has ever vowed to be a dictator, even for one day, I figured that we should make an episode about that. So let's start with what he actually said he would do during his one day dictatorship. I also have to add here, no, you cannot. In the United States, as things stand today, simply be a quote unquote dictator. A dictator has ostensibly absolute authority [00:02:00] over a place and its people. Trump will not have that on day one, because we have a government established by our framers to actively prevent absolute authority for anybody. Dictatorships take time to establish.

Archival: [00:02:16] We're going to close the border. Day one. The border gets closed.

Hannah McCarthy: [00:02:22] Okay. Closing the border. By which Trump means the US border with Mexico. Nick, how does one close a border? [00:02:30]

Nick Capodice: [00:02:30] I know of two historical instances of the southern border being pretty much entirely locked up. They were, however, short lived.

Hannah McCarthy: [00:02:38] All right, let's hear it. Okay.

Nick Capodice: [00:02:40] It happened for one day after the assassination of John F Kennedy. The whole southern border was closed. And then I know that Ronald Reagan closed a bunch of what are called, quote, ports of entry. And that was after a DEA agent was kidnaped in Mexico and that only lasted for a few days.

Hannah McCarthy: [00:02:58] And importantly, Nick, [00:03:00] neither of those closures were challenged in court.

Nick Capodice: [00:03:03] Yeah, they were not. That is true. I also know that during the height of the Covid 19 pandemic, both the Trump and Biden administrations really restricted entry to the US and asylum. It wasn't a closure exactly, but immigration slowed to a trickle. But again, that was during a specific thing, a specific emergency, right?

Hannah McCarthy: [00:03:26] There was an immigrant visa ban at that time, and visa processing [00:03:30] the world over came to a near standstill. And when it comes to the US-Mexico border, officials started, quote unquote, expelling people without giving them the opportunity to apply for asylum and suspended asylum hearings for people who had already applied

Archival: [00:03:47] The pandemic era emergency rule known as title 42. The policy has allowed U.S. immigration authorities to quickly expel immigrants and asylum seekers to stop the spread of Covid 19. The rule has blocked nearly [00:04:00] 2 million people from crossing the border since it was enacted during the Trump administration in March 2020.

Nick Capodice: [00:04:07] But again, Hannah, that is all tied to a public health emergency.

Hannah McCarthy: [00:04:11] It is, however, during his first presidency, Trump issued other immigration related proclamations. Do you remember this?

Nick Capodice: [00:04:19] I do. There was the so-called Muslim ban, which was actually even more broad than immigration, right? It restricted travel to the US for people from various Muslim [00:04:30] majority countries.

Hannah McCarthy: [00:04:31] Yeah. The Supreme Court upheld that in Trump v Hawaii, but Biden removed the ban when he took office. Trump does vow to bring it back, by the way.

Archival: [00:04:41] On day one of the Trump presidency, I'm restoring the travel ban, suspending refugee admissions and keeping terrorists the hell out of our country like I had it before.

Nick Capodice: [00:04:54] And then, lest we forget, there was the zero tolerance family separation policy [00:05:00] and the Remain in Mexico policy, which I think had to do with people not being allowed to come into the US while they waited to hear if they were going to get asylum.

Hannah McCarthy: [00:05:10] That was also undone by Biden. Trump also issued a proclamation saying that anyone who did not enter the United States at a port of entry in other words, anyone, including children who crossed the border illegally, would not be allowed to apply for asylum. Now, a circuit court invalidated this. We have a law that [00:05:30] says that any non-citizen who crosses the US border anywhere is allowed to apply for asylum. We also have a long standing treaty obligation to not raffoul anybody refal anybody.

Nick Capodice: [00:05:43] What is refoulement?

Hannah McCarthy: [00:05:44] It means that we do not force someone to go back to their home if they're going to be persecuted there. All right. Last one I want to mention. Trump also issued a proclamation suspending the crossing of non-citizens who did not have health insurance or the ability to pay medical bills. [00:06:00]

Nick Capodice: [00:06:00] I completely forgot about that one. Wasn't that also stopped by a court?

Hannah McCarthy: [00:06:05] Great question. One court said that this was illegal, and then another court said, you know, no, we're going to uphold it. This is permissible.

Nick Capodice: [00:06:15] Wait. But I know that policy did not stick around.

Hannah McCarthy: [00:06:19] It did not turns out that the second court's opinion was moot. We do not need to get into how that happened. But the point here, Nick, is that there was no definitive answer. One [00:06:30] court said no. Another court said yes.

Nick Capodice: [00:06:33] Meaning, if I may, I think that we are not actually sure what a president can or cannot do when it comes to immigration bans and border closures, unless there's an emergency.

Hannah McCarthy: [00:06:45] Which Trump has declared before.

Archival: [00:06:47] So we're going to be signing today and registering national emergency. And [00:07:00] it's a great thing to do because we have an invasion of drugs, invasion of gangs, invasion of people, and it's unacceptable.

Hannah McCarthy: [00:07:10] The president elect has also vowed to deliver mass deportations of undocumented immigrants on day one and invoke an old law, the Alien Enemies Act, to deport suspected members of drug cartels and gangs without giving them a court hearing. He plans to funnel military spending into border security and hire thousands more border [00:07:30] agents. So how does one close a border? I guess we're going to find out. The once and future administration is famously light on the details here. But we do know how Trump has done versions of this in the past.

Nick Capodice: [00:07:43] And like you said, we are not completely sure how far the executive branch is allowed to go when it comes to the border, I can.

Hannah McCarthy: [00:07:50] Tell you that we do know that the Department of Homeland Security and the executive branch alike have broad authority to close ports and suspend entry to [00:08:00] the United States. How broad they are exactly will probably be tested in 2025. All right, moving on to drilling.

Archival: [00:08:08] Drill, baby drill. We're going to start that day one.

Nick Capodice: [00:08:13] All right I got this one. It's shorthand for expanding oil and gas production in the US.

Hannah McCarthy: [00:08:20] This one is interesting because we already are the number one producer of crude oil in the world and have been for about six years. So the expansion part [00:08:30] remains to be seen. You know what that is going to look like. But Trump has made clear that he believes that wind turbines and electric vehicles stand in the way of the oil and gas future he wants. All right.

Nick Capodice: [00:08:43] And I also know that Trump has promised to, quote, repeal the Green New Deal. But the Green New Deal doesn't actually exist.

Archival: [00:08:53] As of now. It looks like the resolution on the Green New Deal has now officially failed to advance [00:09:00] in the Senate. Back over to you.

Hannah McCarthy: [00:09:01] All right, quick primer on that. What do you mean?

Nick Capodice: [00:09:03] Yeah, absolutely. The Green New Deal is proposed climate change policy that says we are going to phase out fossil fuels. We're going to reduce emissions and get to 100% clean, renewable energy. But given that it hasn't actually been passed, I'm pretty sure when Trump says that, he just means he's going to get rid of other environmental policies.

Archival: [00:09:25] They spent trillions of dollars on things having to do with the [00:09:30] Green New scam. It's a scam.

Hannah McCarthy: [00:09:31] Some Republicans have taken that term. Green New Deal, which, like you said, is the name of climate policy. It was proposed by Liberal Democrats in Congress, and they have applied that term to things like greenhouse gas mitigation and lessening dependency on fossil fuels. These are policies that are found in the current Inflation Reduction Act.

Nick Capodice: [00:09:52] And I know the Environmental Protection Agency, the EPA has new emission standards for vehicles.

Hannah McCarthy: [00:09:57] They do. Trump promises to eliminate [00:10:00] those on day one. He says that this will save American automakers, who currently have to abide by emission standards and incentives to make electric cars. So vehicle emission standards and wind turbine investment, Trump says, are going away on day one and drilling is going to get bigger. So what else does Trump say will happen on day one? I will get to that after a quick break. We're [00:10:30] back. We're talking about the many things that president elect Donald Trump has said that he will do on day one of his presidency, the only day, he says, during which he will be a quote unquote dictator. So what else is going to happen on day one? Trump has said that he is going to fire special Counsel Jack Smith immediately. Now, he didn't say day one per se, but, well, I'll let you listen.

Archival: [00:10:59] We got [00:11:00] immunity at the Supreme Court. It's so easy. I would fire him within two seconds.

Nick Capodice: [00:11:05] Jack Smith being the Justice Department special counsel who brought two federal cases against Trump.

Archival: [00:11:11] Trump has said he would fire special counsel Jack Smith within two seconds, erasing the two federal prosecutions. He's brought one over, subverting the 2020 election, the other for retaining classified documents.

Hannah McCarthy: [00:11:23] Now, we should mention here word is that Smith is already winding down both of those cases, and Trump [00:11:30] would likely not actually have to fire him to make them go away, at least not while he's in the white House.

Archival: [00:11:35] Jack Smith and his colleagues would look to wind these cases down one way or another.

Hannah McCarthy: [00:11:41] Trump has also identified many people who he considers to be his enemies and who he plans to go after, though he's indicated that that project might be bigger than a day one thing.

Archival: [00:11:53] Revenge does take time. I will say that it does. And sometimes revenge can be justified, though I have to be [00:12:00] honest. You know, sometimes it can.

Hannah McCarthy: [00:12:01] All right, moving on. Because day one promises to be busy. While we're on the subject of retribution, Trump has said he will. Quote unquote, free the January 6th rioters who have been arrested and charged, though probably not all of them, he says. A couple of them, quote unquote, probably got out of control.

Archival: [00:12:18] They've got the gallows set up outside the Capitol building. It's time to start using them.

Archival: [00:12:24] Start making a list with all those names down, and we start hunting them down one by one. [00:12:30] Traitors get guilty.

Nick Capodice: [00:12:34] And to be clear, this one's pretty straightforward because the president has broad constitutional pardon powers, though I will say they do only apply to federal cases and specifically do not apply to impeachments. And we still don't have a firm answer on whether Trump can pardon himself. Right? Right.

Hannah McCarthy: [00:12:54] So in case you missed it, Trump was convicted on 34 felony counts in New York state. [00:13:00] Notably, that is a state case, and Trump is expected to appear in court for sentencing on November 26th. His lawyers are obviously filing a petition to delay sentencing, since he is now white House bound, and the judge in that case, Juan Merchan, might throw away Trump's conviction before that. Really? Yeah. Given the Supreme Court immunity ruling, which we have a whole episode about and Trump's presidential victory, Merchan gave himself until November 12th to decide whether or not to [00:13:30] overturn that conviction.

Nick Capodice: [00:13:32] But one way or another, Trump can't pardon himself in a state case.

Hannah McCarthy: [00:13:36] He cannot. And as far as pardoning himself in the federal cases, you know, as we said, those appear to be going away anyway. So he very well might not have anything to pardon himself for. All right. Back to day one. Trump has said that on day one, he will, quote, return to a foreign policy that puts America's [00:14:00] interests first.

Nick Capodice: [00:14:01] All right. Now, what does that mean? Like, do you have any details on that one?

Hannah McCarthy: [00:14:06] Not in terms of what that actually looks like on day one. But we do know that Trump has said that he will end the war between Russia and Ukraine before he even takes office. So that is foreign policy. Trump is also openly critical of NATO, the North Atlantic Treaty Organization, which is an intergovernmental military alliance. Now, last year, Congress passed a law saying that the president [00:14:30] cannot leave NATO without consent from the Senate or a new act of Congress. But that law is a little weak and legal experts are not sure it would even be enforced, and the Senate will have a comfortable Republican majority by the time they have to think about it. All right, moving on. Trump has vowed to find time in that busy day to revoke protections for transgender students.

Nick Capodice: [00:14:54] Yeah, and this is title nine, right?

Hannah McCarthy: [00:14:55] Yes. So the Education amendments of 1972 [00:15:00] have a statute that prohibits discrimination on the basis of sex, and it applies to any education program or activity that receives federal funding. Last spring, the Department of Education, which Trump promises to dismantle, though we'll explain why that's really not a day. One project some other time. Anyway, the department, working under an executive order from Biden, added sexual orientation and gender identity protections to that statute.

Archival: [00:15:29] Crazy. [00:15:30] What? What would you do on day one?

Archival: [00:15:32] Don't forget that was done as an order from the president that came down as an executive order, and we're going to change it on day one. It's going to be changed. We're going to end it.

Nick Capodice: [00:15:42] And as for whether and how Trump can do this, he pretty much just told us, Hannah, he can issue an executive order regarding the Department of Education, just like Biden did. Yep.

Hannah McCarthy: [00:15:53] Trump has also promised to ban trans women from women's sports.

Archival: [00:15:57] Do you go to the sports leagues? Do you go to [00:16:00] the Olympics? You just ban it.

Archival: [00:16:01] The president bans it. You just don't let it happen.

Hannah McCarthy: [00:16:11] Along these same education sphere lines, Trump promises to cut federal funding to schools that teach what he calls critical race theory, which, you know, we've talked about before on the show. But just as a reminder, is a legal framework taught mostly in law schools and very much not taught to grade school students, much in the same way that we do not [00:16:30] teach grade school students taught law.

Nick Capodice: [00:16:32] But what he means, I imagine, is schools that talk about race, which.

Hannah McCarthy: [00:16:37] Given teaching, you know, the history of the United States, it is unclear how or where he will draw that line. He also plans to cut funding on day one to schools that teach, quote, transgender insanity. In other words, schools that foster conversations about gender and sexual orientation.

Archival: [00:16:55] We will get critical race theory and transgender insanity the hell out [00:17:00] of our schools.

Hannah McCarthy: [00:17:01] Trump also plans to. Day one cut federal funds for schools that have vaccine or mask mandate policies. Now, to be clear, Trump cannot unilaterally cut education funds. He would need Congress to help him do that. And finally, in terms of kids and gender, Trump promises to ban gender affirming surgeries for minors on day one.

Archival: [00:17:22] Here's my plan to stop the chemical, physical, and emotional mutilation of our youth. On day one, I [00:17:30] will revoke Joe Biden's cruel policies on so-called gender affirming care. Ridiculous.

Nick Capodice: [00:17:37] And this banning of gender affirming surgeries. Are we again talking about an executive order?

Hannah McCarthy: [00:17:43] Probably, which could do something, have some effect? But again, ultimately something like that requires multi-departmental coordination and probably requires Congress and will almost certainly be challenged in court.

Nick Capodice: [00:17:57] While we're on the subject of executive orders, [00:18:00] I do know that one of the easiest things a president really can do on day one is to revoke the executive orders of other presidents. Right. So the guest we had on our episode about the executive branch, she called it unwinding, unwinding the actions of former presidents.

Hannah McCarthy: [00:18:19] Yes. I am glad you brought this up. While executive orders can be swift and decisive, they are also only as strong as the sitting president wants them to be. Trump has promised to [00:18:30] revoke Biden's orders on diversity, equity and inclusion in the federal workforce. An order on background checks for gun purchasers and an order on safety and security of artificial intelligence.

Nick Capodice: [00:18:42] Oh. All right, Hannah, what else you got?

Hannah McCarthy: [00:18:46] You want more than that?

Nick Capodice: [00:18:48] Yeah. Fair enough. That's a lot for one day.

Hannah McCarthy: [00:18:51] It's a lot for four years. That said, there are other day ones that have come up here and there eliminating certain commercial fishing regulations, [00:19:00] for example. And of course, this does not account for the many, many other promises to keep. Day one is just the beginning. We have got miles to go. And you know what? That is what we are here for. This is Civics 101.

Nick Capodice: [00:19:18] It is. We will be paying attention. We'll be asking questions. We'll be figuring it out. We will be here, civil or not.

Hannah McCarthy: [00:19:33] This [00:19:30] episode was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca LaVoy is our executive producer. Music. In this episode by Kushi, Toby Tranter, Matt Large, Magic, Jumbo, bonkers, Beat Club, Dugway, Ballpoint and Dharma Beats. We have gotten a lot of emails in the past week, and we are beyond ready to answer your questions about how this country works. [00:20:00] If you have anything you want to ask us, you can do that at our website, civics101podcast.org, or by emailing us at Civics 101 at nhpr.org. And Civics 101 is in fact a production of NPR, New Hampshire Public Radio.


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

How do presidential transitions happen?

In 2018, we did an episode on Presidential Transitions. Now that we have had an election, we decided to revisit it. There are nearly 4,000 positions that a president appoints after their inauguration. How do they do it? How long does it take? And why has Donald Trump repeatedly refused to sign the "memoranda of understanding" regarding the transition from the U.S. General Services Administration?

Our guest is Max Stier, President and CEO of the Partnership for Public Service, which runs the Center for Presidential Transition.

Our show started as an explainer of governmental systems in a transition such as the one we're in now. Send us an email at civics101@nhpr.org if you want us to explain any facet of how our democracy works.  


Transcript

Nick Capodice: Hey, everyone. Nick here. It's like 522 on November 7th. I'm recording this as I'm walking around, I forgot to account for daylight savings time. It's so dark and I'm wearing a black hoodie, so got to be careful. I'm sure a lot of you out there know the story of how Civics 101 started. If [00:00:30] you don't, I'll just tell you real quick. Shortly after Trump was elected as president, the first time, the CPU, which is the rather unfun initialism for the people who make podcasts at NPR, we're like sitting around and talking about something that was happening involving the Secretary of state. And then somebody bravely said, what is the secretary of State do again? And the room, I'll wait for this truck to go by. It's a big truck. [00:01:00] And the room was silent. Somebody was like, do any of you know what the Secretary of State does? And then Logan. Shannon. Logan. Shannon, thank you for my job. A producer at NPR. Logan Shannon wrote down on a post-it note. Schoolhouse Rock for adults. Question mark. Somebody I don't know who has that post-it note in a frame somewhere. But [00:01:30] that's how the show started. It was explaining how systems worked in a nonpartizan way. After the election of somebody for whom frankly, democratic norms, you know, were not the norm.

Nick Capodice: So, you know, let's just understand how things work. Here we are. And when I say, here we are, here we are again. So the election was a couple days ago. Donald Trump won. And so we're [00:02:00] going to ask you again, what do you want to know? What systems do you think need explaining? Now we can't answer what's going to happen. Nobody knows for anything. Anything at all. But we can do is explain systems that have existed for 250 years, or have evolved to what they are over 250 years. And we can do it by interviewing the people who understand those systems best. So [00:02:30] I hope you'll consider sending us an email. Just send it to Civics 101 at nhpr.org and tell us what you want to know about, and we'll get started right away. All right. Here's presidential transitions. And oh, before before we launch into it, Hannah and I recorded this on Election Day. We were in the studios here at Concord. We were all, [00:03:00] you know, civic stop. So we had no idea what was going to pan out that night, even though the interview I did with Max Dyer was last week. Everything he says still holds true. All right. Drop us a line.

Enjoy the episode. Yeah.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy, and.

Nick Capodice: Today we are talking about what happens when one president leaves and [00:03:30] another comes in. We're talking presidential transitions. Hannah, real quick, do you want to tell everyone when we're recording this?

Hannah McCarthy: Yep. We are recording this on Election Day on November 5th, 2024. Nick, did you vote because I voted?

Nick Capodice: I did, I voted this morning. It was great.

Hannah McCarthy: All right, so we are at the studio. There are reporters dashing all around the state, and we just talked to Vermont Public Radio about this year's election. So there's a lot going on. [00:04:00]

Nick Capodice: All this to say, we do not know anything about the election results when we're recording these words that you're hearing now. Future US does know. Maybe you do too, but we are in the dark. Hannah, I'm hesitant to play this. Do you remember this?

Virginia Prescott: Both of you guys are theater. You have theater background? Both of you. Right? We do indeed. Are you going to do a little song and dance thing? We're going to.

Nick Capodice: Do a Civics 101 Christmas carol, for.

Virginia Prescott: Sure. Yes.

Hannah McCarthy: Absolutely. Oh. So green. It's not easy being [00:04:30] green. I was this, like, six years ago.

Nick Capodice: It was just about Civics 101 did an episode on presidential transitions in 2018, and it was the episode where the former host of the show, Virginia Prescott, announced she was leaving and that Hannah, you and I would be the new hosts. Do you remember how it felt when we made that episode?

Hannah McCarthy: I remember feeling like I didn't want to disappoint anybody, because Civics 101 already meant a lot to me, and I already really, really believed in it. And I felt [00:05:00] like this huge responsibility had been handed to me and I desperately wanted to get it right.

Nick Capodice: Yeah, I didn't know what the show was going to be. I didn't know what was going to be like with me and with you together. I was nervous, I think I was just staring at my shoes the whole time. I was terrified, but yet here we are.

Hannah McCarthy: Here we are.

Nick Capodice: Well, we've got a presidential transition that is gonna happen. So I reached out to the same guy we spoke to all those years ago. And here he is. [00:05:30]

Max Stier: My name is Max Stier. I'm the president and CEO of the partnership for Public Service. We are a nonpartisan, nonprofit organization dedicated to a better government and a stronger democracy.

Nick Capodice: And Max's organization is the one that runs the center for Presidential Transition.

Hannah McCarthy: So, Nick, we have talked about the peaceful transfer of power before. Actually, a few times on this show, but this is the actual process of one person leaving the office and another [00:06:00] person coming in. Does the president elect have any powers before they're inaugurated? I mean, I'm assuming the sitting president, you know, continues to be the person with the presidential powers. But I guess I've never actually answered this question for myself.

Max Stier: It's a very, very important point. And that is that after the election, we still have one president, and that one president is the incumbent who got elected four years earlier and is president until January [00:06:30] 20th, until Inauguration Day. And they do their job, their job, meaning that they keep us safe, that they are responsible for those 450 plus departments for our national security, for all the issues that have to be addressed. And sometimes there is confusion in people's minds, including allies and enemies abroad, as to who actually is president. But make no mistake, it's one president at a time, and it continues to be the incumbent until [00:07:00] the new person is actually sworn in.

Nick Capodice: So the term for an outgoing president between Election Day and Inauguration Day, that liminal space is a so-called lame duck. That's an expression that was first used in this way in the 1920s. And it is worth adding here that the lame duck administrations used to be a heck of a lot longer. Inauguration day used to be in March. However, the 20th amendment, ratified in 1933, moved it to January. Now, [00:07:30] I want to make something very clear here, though. Even though a president isn't a president until the inauguration, the work for that transition happens much earlier.

Hannah McCarthy: All right. What is the first step? What is the first thing that an incoming president has to do?

Max Stier: Well, the first thing that has to happen when a new president comes to power is they need to be prepared to take over the most complicated, important organization not just in our country, but on the planet and probably in history. And [00:08:00] when I say that, that means the United States government and the United States government is north of $6 trillion, spend 450 plus organizations, 3.5 million people. When you count the uniformed services and civilians, 4000 political appointees, 1400 of which require Senate confirmation. So it is not. You walk in and you just start on day one by coming into the Oval Office and you're good to go. You've had to do a ton [00:08:30] of planning to be able to actually take over our government in a considered and, and a capable way. And this is about our safety as a country. Uh, you know, no small beans.

Hannah McCarthy: What does Max mean when he says that it's about our safety as a country?

Nick Capodice: Well, picture a restaurant, right? You've got chefs, kitchen staff, front of house staff, maybe including a bartender. You've got a menu, [00:09:00] a reservation system. You got all that. If you were in one night to replace every single person who worked in the restaurant, you put a new coat of paint on the walls, you design a new menu, you change out every computer you empty and refill the walk in, put in a new POS system.

Hannah McCarthy: That is the point of sale system, by the way. It is what waitstaff use to send their orders to the kitchen, and learning a new one can be tricky.

Nick Capodice: Thank you Anna. It's a dangerous initialism. There I was always I was so terrible at the POS. I was not a good waiter. [00:09:30] Surprisingly, I was a terrible waiter. Oh, I was.

Hannah McCarthy: A I got to say, I was a tremendous, tremendous server.

Nick Capodice: Why am I not surprised? If you did all that, I do not think that there is a restaurant in the world that would be ready to open in 24 hours. I don't care if you're Carmy Berzatto. You can't do it, cousin.

Speaker5: 45 minutes to open, chefs. Yes, chef.

Nick Capodice: But America is not a restaurant. It cannot [00:10:00] take a few weeks to get the US Armed Forces and the Treasury Department and the rest of the 3.5 million staff of the executive branch used to new management. It has to be working smoothly. The second the oath of office is taken.

Hannah McCarthy: Heard? Yes, chef. Yes, chef.

Speaker5: Say it back, please, chef.

Hannah McCarthy: And there are 4000 political appointees who have to be appointed when the new president takes office.

Nick Capodice: Yes. And 1200 of them have to be confirmed by the Senate. And that number is [00:10:30] high. But it's not how it used to be. So we used to operate under what was called the spoils system, where the president appointed almost every executive employee.

Max Stier: It was, you know, President Jackson that started the spoils system in the 1820s. And it ended in the assassination of President Garfield by a disgruntled job seeker.

My name is Charles Guiteau. My name I'll never deny.

Speaker6: To leave my.

Hannah McCarthy: Oh, I remember this from another episode. [00:11:00] Charles Guiteau shot President Garfield because Guiteau believed he was unfairly snubbed over an appointment as an ambassador. And long story short, this led to the creation of the civil service, where people are appointed not politically but based on their skills and knowledge, ostensibly.

Nick Capodice: Very well done.

Max Stier: And there was a the progressive movement where Americans appreciated that their government needed to be apolitical and professional. But the political [00:11:30] appointments still continued. People have just accepted a, what I would say, an unhealthy level of political appointees for quite some time. They really haven't appreciated why that is a problem. And the counter-argument is that you want a government that is actually responsive to the democratically elected leaders. The reality is you don't need 4000 people to make that occur. And it is counterproductive, both because it's super difficult to get them in place and because they [00:12:00] are not as expert in understanding how to actually run the system.

Hannah McCarthy: How long does it typically take for these 4000 appointments to happen?

Nick Capodice: I am going to get to that right after a quick break.

Hannah McCarthy: But before that break, if you are someone who wants to know the story of the folk song about Charlie Guiteau, that is the sort of thing that we put in our newsletter. Extra credit. It's fun, it's free, it comes out every two weeks and you can sign up at our website, civics101podcast.org. We're [00:12:30] back. We're talking about presidential transitions. And, Nick, you were about to tell me how long it takes for the 4000 political appointees to be appointed.

Nick Capodice: I was, and I got to start by saying it depends on the job, but more importantly, whether that job needs to be confirmed by the Senate. Here again is Max Stier.

Max Stier: If it's one of those positions that require Senate confirmation, the top jobs in government, if you're the cabinet secretary [00:13:00] or the deputy secretary or the agency head, you then have to have the United States Senate agree that you are the right person, and that requires you to be vetted, to go through a security clearance, to have your financial holdings examined by the Office of Government Ethics for you to have a hearing before the Committee of Jurisdiction in the Senate, and then ultimately, for you to have a vote by the entire Senate, which you have to get a majority of the senators to support you. So it can be a very [00:13:30] lengthy process. Unfortunately, it has become an even more onerous process so that the time it takes, on average, to get confirmed in one of these jobs is now over 191 days, 191 days.

Hannah McCarthy: Yeah.

Nick Capodice: And that is a number that has increased over the last few decades. Hannah. It is double the amount of time that it took during the George W Bush administration.

Max Stier: That means that there are some people, like the cabinet secretaries, that often get in very quickly, and [00:14:00] then there are a lot of people for whom it can take more than a year. And again, imagine what that means for the individual where they are in purgatory, wondering what's going to happen. Very difficult for them to even continue their prior job because they can't create any conflicts for themselves. And the institutions that need running are waiting for someone that isn't there, and they have an acting official who is the, you know, proverbial [00:14:30] substitute teacher and a substitute teacher that's around for a very long period of time. So it is a broken system and it is getting more broken.

Hannah McCarthy: Did Max have an example of a political appointment that he feels maybe should not be political.

Nick Capodice: He certainly did.

Max Stier: And this is particularly true for the kinds of organizations that are operational as opposed to policy in emphasis. So an example of this would be the Veterans Health [00:15:00] Administration. It's a hospital system, the largest one in our country and probably in the world. And you need a hospital administrator running it. That should not be a political job because it's a political and Senate confirmed job. There are large gaps in time and between leaders and the leaders that get appointed, who eventually get in place don't last very long so they can't actually get the job done. Well.

Hannah McCarthy: I'm assuming a lot of these people [00:15:30] who are hired after the transition need security clearance, right?

Nick Capodice: Right. Many of them do. And we have a whole episode on the process and the many levels of clearance.

Hannah McCarthy: What about the president themselves? Do they just get access to all of the top secret stuff when they take office?

Nick Capodice: They pretty much do.

Max Stier: So a president is a little special in multiple ways, and that includes with security clearance. And the president has the right to [00:16:00] access to everything. And they also the security clearance process is really defined by executive action rather than legislative action. So the president has full control over that entire architecture of classified information and how and who is ultimately available to. There are lots of rules and regulations that have been created over time that are quite important. There are certainly places that it can be improved, but it is really [00:16:30] important to respect the process itself and the professionals who are responsible for overseeing it. So the transition support that the federal government gives is extremely important. It provides candidates with access to cyber protection, to office space, and ultimately to information about what is happening in the government that that a president elect and his or her team will need to know [00:17:00] in order to be able to be ready on day one, to run those agencies and think about it, the world is complicated. There's a lot going on. You would want to. And if you're flying the airplane, you need to know not only how to fly an airplane, but what the weather is there, where you're going, all sorts of information. And that's effectively what we hope to have with new leaders inside government agencies. So in this cycle, I think one of the big questions that [00:17:30] has been raised that the law does not really account for is the fact that as of now, the Trump transition team has not entered into the agreements with the governmental entities that run transitions that it needs to do in order to have access to the critical information that will allow a potential, you know, future Trump team to be ready to govern on day one.

Hannah McCarthy: I just want to make sure I have this right. The Harris Walz [00:18:00] campaign agreed to work with the center for Presidential Transitions, but the Trump Vance campaign did not. Correct. I don't actually know why. Why is that?

Max Stier: It appears as if some of the reasons include that they do not want to limit the amount of money that they can solicit from individuals for paying for their transition operation, which would be limited to $5,000 if they signed that agreement. And they have to disclose who those donors [00:18:30] are.

Nick Capodice: Secondly, Donald Trump signed an executive order in 2020 that redesignated 20,000 civil servants to quote at will Employees, this meant they could be fired. Now, President Biden reversed that order, but Donald Trump has vowed to reinstitute and expand it to 50,000 if elected.

Speaker7: First, I will immediately reissue my 2020 executive order restoring the president's authority to remove rogue bureaucrats, [00:19:00] and I will wield that power very aggressively.

Max Stier: There are other requirements that appear to be problematic for them, including that they would need to have an ethics plan that would include a description of how the president, him or herself, would avoid conflicts of interest, financial conflicts of interest. But be that as it may, whatever the ultimate reasons, they have not yet entered into those agreements that were the target. [00:19:30] Dates were September 1st and October 1st. So we are well past the dates in which that should have happened. And the closer we get to the post-election period, the the more and more damaging this can become. We are in uncharted territory here and scary uncharted territory. So, uh, it is it is not the way, um, the transition process was designed to run, and it's not the way to maximize the best handoff of power. [00:20:00] If indeed, uh, former President Trump wins again.

Hannah McCarthy: Regardless of the winner of the election happening right this very second. This is something that will continue to be a struggle. Every 4 or 8 years. You have to turn over that restaurant no matter what, and you have got to do it fast. Um, I'm wondering, you know, is there any way to make transitions simpler, easier? Yeah.

Nick Capodice: Max [00:20:30] had some suggestions, and unsurprisingly, it was his view that we are a healthier democracy if we do not use the spoil system.

Max Stier: First and foremost, we should have many, many, many, many, many fewer Senate confirmed positions. 1300 is crazy. We also, frankly, should have many fewer political appointees. If you look at other democracies, they count their political appointees at most in the tens. You know, maybe you get to 100. And [00:21:00] we are unique amongst democracies and certainly are our peers in having 4000 or even, you know, counting in thousands. It is a vestige of the spoils system, and it's not a good one. And it means that we delay getting leaders in place. It also means that we have fewer people who are concerned about the long term health of the institutions that they're responsible for, and [00:21:30] it means that, frankly, we typically have people who are less qualified in these leadership positions than we could have if we actually had more apolitical, professional choices for those folks.

Nick Capodice: That's it for the episode on presidential transitions. It's not it for presidential transitions, though. This episode is made by me Nick Capodice with Hannah McCarthy. Christina Phillips [00:22:00] is Civics 101 senior producer. Rebecca Lavoie is our executive producer. Music. In this episode from Chris Zabriskie, blue Dot Sessions, and Epidemic Sound. Civics 101 is a production of NPR, New Hampshire Public Radio. And again, we're going back to our roots. If you want to know anything, send us an email Civics 101 at nhpr.org. And I hope you're well.

I really do. All right.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What happens to ensure your vote for president is counted?

You voted. So what happens to your ballot next?  This episode covers EVERYTHING that happens to ensure your vote is verified, all the way up to the official counting of electoral votes in Congress. 

Our guests are journalist Jessica Huseman and Notre Dame law professor Derek Muller

Here are some resources for following along with the process in your state:

Vote.org helps you navigate to your state’s election laws and website.

Vote.gov is the federal government landing page for election.

The NCSL (National Conference of State Legislatures) breaks down election laws in each state.


Transcript

Note: this transcript is AI-generated and may contain errors

Hannah McCarthy: This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Christina Phillips: And I'm Christina Phillips. How are you feeling?

Nick Capodice: Hi. I'm feeling great. How actually. How are you?

Christina Phillips: I am good, I I'm very busy busy, busy busy.

Nick Capodice: Yeah, yeah, a very. Did you ever see Gladiator? Do you ever see Gladiator?

Christina Phillips: Did I ever see Gladiator?

Busy little bee.

Christina Phillips: But we should set the scene. Hannah. When is it? Where are we? What is happening?

Hannah McCarthy: Certainly. We are recording this ahead of the 2024 election, but this episode comes out on that fateful first Tuesday in November. Which means that you, listener, are quite possibly listening to this on your way to vote. Or maybe you have voted already. If so, we salute you. Very well done. Maybe you're watching the returns come in. Or you know, maybe you already know who has been declared the president elect of the United States. But even though you are in the future and know stuff that we do not, I bet we got some lessons up our sleeves, right, Christina?

Christina Phillips: We sure do, Hannah. Because this year more than ever, everything that happens after you cast your ballot is getting a lot of attention already. From the local certification to electors to the role of the vice president and Congress. So today, we're going to walk through everything that happens between Election Day and January 6th, which is when there is the official counting of the Electoral College votes in Congress. Great. I want to be transparent here. I went into this episode with some fear and uncertainty myself around the election, in part because I think I didn't really think about all these steps in the process. After I voted, I would, you know, watch the results come in and then kind of assume, okay, well, I knew that we would have the electors cast their ballots. I knew there would be the counting, but I didn't really think about everything in detail. And then, of course, the last couple of years, this has been all people have been talking about as far as elections. And after talking to the people, we're going to hear from today, the experts that I talked to. I ended up feeling a lot better about this process, in part because I understand it more. I feel like I tend to feel better when I actually know what's happening. You and me both. Yeah. So I'm hoping that over the next couple of months, you'll. You'll see a day on the calendar and think, oh, yeah, that's the day that this is supposed to happen. And if you want, you can check in and, you know, turn on the news or look it up and even call your secretary of state's office and be like, hey, that thing is happening today, right? I don't know if they'll answer, but we can all follow that together.

Nick Capodice: Great.

Christina Phillips: Are we ready?

Hannah McCarthy: Yes.

Nick Capodice: Absolutely. Ready.

Christina Phillips: Here we go. I want to start at the end of Election day, when polls start to close.

Hannah McCarthy: And if you're in line, they will not close or they should not close so long as you are in line. Even if the polls close at 5 p.m., they should still let you vote. I just want to remind everyone of that.

Christina Phillips: See, this is why I'm so glad you're here. Because you both are full of all these facts about these things. So yes, you may be in line. Maybe you've already voted, you're finishing up your workday. You're maybe cooking dinner. For me, I'm opening my probably second family size box of Cheez-Its and refreshing Twitter and looking at the AP results and maybe going out in the field with a reporter to help cover the election. Do you either of you have a ritual or a practice when you're watching election night results roll in?

Hannah McCarthy: Well, every now and then it's either my birthday or the day after my birthday or the day before. I was born on on election Tuesday in 1990. Uh, so it kind of it varies for me.

Christina Phillips: Nick, what about you?

Nick Capodice: Ever since the Bush v gore madness that happened. I don't go to sleep until I'm forced to by the sun coming up. Like I stay up, I stay up and I just watch and I watch and I watch and I hit F5 all night. So that's my tradition, is that I don't stop until I get as much information as possible.

Christina Phillips: And so how does it feel? I think 2020, when it took a I think it was like a week before there was an official declaration. These are the results. I feel like I remember it being like a Saturday or a Sunday. How how do you feel when you are just watching and watching and watching and you're not seeing any sort of final results come in?

Nick Capodice: It's painful and it didn't used to be that way. So, you know, I was a kid, I'd go to bed and I'd wake up and it would say, you know, so-and-so is president without with almost without exception. And it wasn't until Bush v Gore that that changed.

Hannah McCarthy: I can remember waking up or being woken up by my mother the day after the bush-gore election, and she was all excited. She was like, and the president is we don't know. And I was like, what? And she's like, this has never happened before.

Nick Capodice: My favorite thing about the 2000 election is that was the creation of red and blue, representing the two parties. Before that, no one had ever, you know, always equated Democrat with blue and Republican with red. That was just staring at that map for weeks. It's the only it's the reason we came up with red state, blue state, all that stuff.

Christina Phillips: I didn't realize that. I'm really glad that we're talking about the the idea that it used to be that you would know the results, you know, by the time you woke up. I will say 2000 is not the first time. We didn't know for a long time. Ooh, there is a pretty famous time, which is in 1876, which led to the creation of the Electoral Count Act, which we're going to talk about later. But I think it is pretty clear going forward that it's likely we will not know results from several states the night of the election, or even the next morning because of the environment that we are living in right now and because of how close we know the race is already, we may not know for several days, maybe longer, how some states, especially those swing states, especially the very close swing states, what the results are, and that is completely normal. And we'll talk about what's happening during those days when you're sitting there and you're like, why don't we know? Why don't we know? How come some states called within two hours?

Hannah McCarthy: I appreciate this because I think a lot of people, often encouraged by politicians, feel like something nefarious is going on. Right. And it's it's not, it's not it's not some sort of, like, secret, evil doer, behind the scenes kind of thing. It's just like bureaucratic, bureaucratic, bureaucratic, red tape kind of stuff.

Christina Phillips: Yeah. And if in those extremely, extremely, extremely rare circumstances that somebody is deliberately trying to delay the results of an election, they're not certifying, there are mechanisms to make that happen.

Hannah McCarthy: As I like to say, it's always less exciting than you think it is. Everything having to do with government is way less exciting. Mhm.

Christina Phillips: So I do want to break this down. There are five steps we're going to talk about. Canvassing is the first step.

Hannah McCarthy: Mhm.

Christina Phillips: The local certification. The state certification. The meeting of electors and the Electoral College vote count in Congress. Do you know what the canvass is. The post-election canvass.

Nick Capodice: Are these like exit polls or. This is like how we find out after people have voted? Like, how did we do? Or like, who did you vote for? And we sort of take all that data and amass a projection from that. Is that canvassing?

Christina Phillips: No. Oh, dear. No. So.

Hannah McCarthy: Well because canvassing is a term that is is used to describe the job of like going door to door and encouraging someone to vote for somebody or asking them who they're going to vote for. So that's. Go on. Please.

Christina Phillips: Yeah. So the post-election canvass is something that is different, but it's specifically about checking the work of the election process itself. And so I actually want to bring in someone else here, somebody that you both know. Well, because we love having her on Civics 101. And this is Jessica Huseman. Hi. Yeah. And so Jessica has been reporting on local elections for years. She's currently the editorial director of Vote Beat, which is a nonprofit newsroom covering voting rights, election administration and redistricting.

Jessica Huseman: The canvass is usually done by this Board of elections, right, whatever that means in the state in which you live. And so sometimes that is a group of people who are all like appointed to those boards. Sometimes it is like a mix of the chair of the Republican Party and the chair of the Democratic Party, and a couple of other people that are like sort of set into county code. But those people are responsible for the canvas. And what that means is they basically like, take all of the results from all of the precincts, make sure that those results are correct.

Nick Capodice: Well, Christina, earlier you said that this is about all the layers and all the steps. This is the first spot where I can see a potential nefarious thing happening. Someone who is a bad actor, who's in charge of this to, you know, to say that things went really badly. There was there was some sneaky stuff going on. Uh, isn't this a place where somebody can sort of trip up the rest of the process?

Christina Phillips: Theoretically, yes. But I think it's important to remember that the canvassing process is written down in law and if not in state law than in local election rules. So these people and they are all supposed to sort of check each other and work together. And there are a list of things that you do. And so actually, Jessica describes in a little bit more detail what the canvass looks like, what sort of things they need to do as part of the canvas. And before I get to that, I actually I think now is the time to introduce a caveat for most of this episode, which is that it depends on your state. There may be different words for the same processes in your state, but most states are doing this in a very similar fashion, so just keep that in mind. Caveat as always, it depends on your local election laws. But this canvass process is happening across states, across the country.

Jessica Huseman: There's the tabulation of the results, which in different states happens in different ways. Some places tabulate all the results at a central tabulation facility. And so poll workers bring the ballots to some place and they scan them all and count them all there. There is also reconciliation of those results. Right. They go back and they're checking a certain number of them, usually like a randomly selected group of ballots, to make sure that they were all counted appropriately.

Hannah McCarthy: They take a random selection to ensure that it was counted properly.

Christina Phillips: Yeah. So they're running the votes through these voting machines or whatever you've got in your state, and then they may just do a test where they're like, okay, so let's pull some of these ballots and let's run them through the voting machine again. We're actually looking them at them in front of us, and then we are running them through the machine to make sure that those match. So there's actually depending on your state and depending on what kind of counting mechanisms you're using, you're actually testing those mechanisms.

Jessica Huseman: The process from like start to finish at the county level is incredibly transparent. And so if you want to watch every step of it, you totally can. So the first thing that's going to happen, um, is the logic and accuracy testing of machines like that sounds so nerdy, but really it's just like, let's set up all these machines and make sure that they're counting ballots as intended. That process is open to the public. Like you can go and watch them do that and a lot of counties, because this process has been like because all of this has become so controversial, live stream this stuff. So even if you can't make it down to your county office to watch them like beep boop, all of the machines, you can watch them do it online. You can also watch them tally the ballots. You can watch them count the ballots. You can get readout at the at the end of the day of like how many ballots are counted and how many ballots are still left. And a lot of counties again, are like proactively putting this information online and.

Christina Phillips: The canvass also, another thing that happens is that it will verify provisional ballots. Do you want to define what a provisional ballot is?

Hannah McCarthy: A provisional ballot is the ballot that you can request if, for example, your voter registration is challenged or someone says, you know, oh, you don't have the proper ID, you're not going to be permitted to vote. You can still say, I request a provisional ballot, as is required by law. And this is a ballot that is basically it's like counted after the fact. Basically, they they verify your ability to vote after you've already left the polling place and the ballots are being counted, and a provisional ballot can be thrown out if someone determines actually, no, you were not permitted to vote. It's not guaranteed to be counted. But people will basically verify like, okay, yes, this person was a registered voter or was not.

Nick Capodice: I would like to say that I wish I had known this one time when I was living in New York, I showed up to vote and I was told I was removed from the voter rolls. And this happened to a lot of people where I lived in Brooklyn, and they were shocked, and I didn't know that I could do that. So I just didn't vote in that election. And it breaks my heart.

Jessica Huseman: Everybody is able to cast a provisional ballot in the United States. It's federal law. So if you get to the polls and your name is not on the register, but you know that you registered to vote, They can give you a provisional ballot and you can vote that provisional ballot. And then after Election Day, the county has to reconcile those provisional ballots. And so they will make sure that you are registered and you were in the right place. And if you were, then your ballot counts.

Christina Phillips: So that's part of the canvassing process. And then there is one other thing that I wanted to talk about. That's part of the canvassing process that's super important. And that is curing ballots. Do you know what that means?

Hannah McCarthy: Curing.

Christina Phillips: Yeah. So this is really important for mail-in ballots, absentee ballots. This is the process of if a ballot for some reason cannot be verified because there's a missing signature or a signature doesn't match. They'll go back and they will try to verify that ballot.

Jessica Huseman: You know, there's there's lots of ballots that, for whatever reason, usually mailed ballots that like we need to verify additionally. And so we have to call you and say, like, is this your ballot? And probably the answer is yes. I've heard lots of reasons why people's signatures are different, right? Like, I got older, I changed my signature, didn't think about it. Right. Or I signed it on one of those weird electronic pen things that the DMV and that signature was crap. And this is my actual signature. Or, you know, I was voting and I signed it on the dashboard of my car while I drove. And so my signature was bad, but it's mine, right? So there's this process that by phone or by sometimes by like ballot tracking app, which lots of states have now they can flag the voter and be like, your ballot is being rejected because of a signature mismatch, or you needed to put your last four digits of your driver's license or Social Security number on this ballot and you didn't, or whatever, right? Like, there are lots of reasons why a ballot might not be counted. And so there is a cure process that allows the county to reach out to these folks and, and make sure that like that problem can get resolved.

Christina Phillips: And so if you cast a mail in ballot or an absentee ballot and you're like me, you're like a millennial who does not answer their phone for an unknown caller. This is the time those next couple of days after the election, answer your phone. Open your mail. Somebody may be sending you a letter saying, hey, your ballot didn't count. We really want to count it. So that is all part of this canvassing process. Again, why it may take longer for the results to come in. All of these things slow the process down, but they don't necessarily mean that there's anything wrong with these ballots.

Jessica Huseman: And so not until that entire process is done are the results final, because you can't just count thousands of ballots instantaneously, right? If you could, lots of people would be disenfranchized like if if all of the results of those scanned ballots were just the results on election night. Lots and lots of people would be disenfranchized for like tiny little things. And even people who vote in person run up against this, right? So if somebody has voted on paper in person and they erased something and wrote it again such that it's not that clear what their intent was, those ballots during this canvassing process are pushed to a bipartisan group that has to determine what the voter intent was, redo their ballot on a separate ballot that can be counted and then cast it. And so if we had results on election night, everybody who left their signature off a mailed ballot, everybody who's like, erased something or like put an X in the bubble instead of filling in the bubble fully. All of these people's votes just wouldn't count. Um, and and that's really unfortunate. And and I think that people should really think about that when they insist that election night results need to be official.

Christina Phillips: I want to talk now about the role of the courts. You often see lawsuits. You see courts making decisions during this canvassing process. Do either of, you know, sort of what the role of the courts are, how a court might step in during the election or the tabulating of the election?

Hannah McCarthy: I'm fairly sure a court can basically grant a recount, and I'm fairly sure a court can say, enough. We're done. We're not doing this anymore, which is what happened in Bush v Gore. The Supreme Court was like, no, we're done no more.

Nick Capodice: I know that there are requisites to start a recount and there's nobody's choice for that. Like if a vote is within a certain margin, they a recount is triggered. It's not somebody making that choice. It's just automatically happens when it's really close. I believe, if I'm not mistaken, there are a ton of lawsuits. Like, I think every state is involved, at least in some lawsuit or other, about this election. The courts are there to make sure that, you know, if people have complaints, they are going to address their complaints, they're going to say what arguments are valid, which ones are not. They're there to sort of help the whole thing keep moving. Is that right?

Jessica Huseman: You know, the courts can intervene and there are ways that they intervene really productively every year. So for example, like let's say that you are going to vote and your precinct has a water main break. And so voting is delayed by three hours at the start of the day. A judge can rule that that polling location has to stay open for an additional three hours to make up for that lost time, and that happens every year for some reason, right? Like a poll worker that like the only poll worker for that precinct got in a car accident on the way there and like, you know, they were late or the machines weren't working or they forgot the plugs to plug the machines in. And so voting is slightly delayed. And that's going to happen somewhere in the country almost certainly. And so the courts can choose to keep those polling locations open. Or for example, now that we have these majorly hurricane affected areas and across the state of Florida and in western North Carolina, there are lawsuits that may, you know, decide to shift what is allowed and what is not allowed in terms of where polling can be held, because the polling location that this county has used for years and years and years washed away, or the road to get to it isn't there anymore, you know? Um, so the courts have a real role to play in terms of ensuring voter access.

Hannah McCarthy: So just real quick, because I might do early voting, which I actually have never done before. Where will my ballot sit with an early ballot? Does it go to the same place that like mail in ballots go?

Christina Phillips: So it depends on your state? Yeah. Uh, that is actually a really good question that has to do with something that's called chain of custody. And this is here's who has control of X equipment X ballots where they're stored, how they're stored, how they're transported. This is all built into the law. So if you were to cast an early ballot in New Hampshire, there is a rule for where that ballot must be stored. Who is allowed to access it if they can start counting it right away, or when they can start processing that ballot.

Hannah McCarthy: Wait a minute. They could count it prior to Election day.

Christina Phillips: I think that depends on your state. Some states they can start processing early ballots ahead of Election Day. Same with mail in ballots. It really depends on your state. If you are casting an early ballot or a mail in ballot, it arrives beforehand. There is a chain of custody that must be followed.

Jessica Huseman: There are chain of custody procedures for voting equipment, for ballots, for e-poll, books, for all sorts of things. And the way that they must be secured and kept are generally, if not by law, written into the county code. There are best practices for this that most counties at this point are following. It's become much more common, especially since 2016 and 2020 when these like when voting machines really got called into question, and the security of those voting machines was really called into question. And so you'll find that counties are taking this a lot more seriously than they used to. And it's not that they didn't take it seriously before they did, but because there's so much public scrutiny of it, they have felt the need to sort of really define what they mean when they say chain of custody, so that when somebody comes to them and they say, hey, I think that members of the public could just stick a USB stick in one of the voting machines and take over the whole day. They can say, no, they can't. And here's how we know this, because this is how we secure the voting machines. This is who has access to them, and this is when they have access to them. And these are the security procedures to ensure that those steps are being followed.

Christina Phillips: I do have an example of a time that that didn't work out where somebody violated that chain of custody deliberately. Oftentimes it might happen by accident. So are you familiar with Tina Peters? She was a former clerk in Mesa County, Colorado. She was accused of knowingly tampering with her county's voting machines in search of election fraud. Uh, basically, during the annual upgrade of the voting machine system, she created security credentials for someone who wasn't allowed to access them. Then she turned off the cameras that were supposed to be monitoring the voting machines and the upgrade, and that person was able to take sensitive information. So she was charged with crimes. So she's now going to prison for it.

Jessica Huseman: That was something that she took upon herself to do, because she was sort of in this camp. She was getting a lot of money from Mike Lindell, the MyPillow man, to, like, fly around the country and talk about how screwed up our elections are. And so she just kind of went for it. And she was like, yeah, I'll give you all the proof that you need that our elections are flawed. She obviously didn't find it, but that led the state of Colorado to decertify all of the equipment in Mesa County, and they had to get new equipment and and so like ultimately no votes were affected and the security of the elections weren't affected, but taxpayers spent thousands of dollars sort of making up for this failure to abide by chain of custody procedures. So when chain of custody is followed, it's great, right. Like but when election officials and this is the extreme minority right. Choose not to follow chain of custody procedures, things can really go awry. And states can take really punitive actions to like invalidate machines or to force counties to do recounts because they've messed up their security here or there.

Christina Phillips: So those are sort of routine court interventions. And then there's the other kind of lawsuits, which I think we think about in terms of 2020. Those are the political lawsuits, which, if you remember, Trump and his political allies filed 62 lawsuits after the election in a number of different states contesting the results and in many cases alleging election fraud on a scale that has really never been seen before in history. And almost every one of those cases was dismissed because it lacked evidence. And that moved really quickly. So that happened in the first couple of weeks after the election. So there is a time crunch because we do need to get to January 6th. So those lawsuits are filed their process as quickly as possible.

Jessica Huseman: And I think that we should expect more lawsuits this year, because both the Republican and the Democratic parties have dedicated a much higher percentage of their overall money to Litigation. So they are ready for this, right? They are ready to sue. And again, I think that a lot of these lawsuits are likely to be dismissed very quickly, but they're still going to be filed. And so the courts are still going to have to wade through all of this before we really have confidence that the election is over and done and dusted.

Christina Phillips: So now we've reached the next step. The canvasing is complete. The canvasing board hands over the results of that canvass.

Jessica Huseman: And then they turn those results over to be certified, typically by a totally separate board. And so the reason that that is sort of the case is like this is our mark of approval, that not only do the elections people think this is correct, but like in Texas, for example, the county commissioners court, which is like the city council at the county level, also thinks that it's correct.

Hannah McCarthy: So what happens if the local election officials, local election board does not certify?

Christina Phillips: Yeah. So I want to bring in someone else here. This is Derek Muller. He's a law professor at the University of Notre Dame Law School, where he teaches election law, federal courts and civil procedure. And I asked Derek that question. I said, what happens if local election officials refuse to certify an election? Because we've been hearing news about local election officials who were deniers of the results in 2020. They're now going to be part of the certification process, which states must do by December 11th. And we'll talk about that date in a minute. And so here's what he said.

Derek Muller: So when we have these deadlines, it's worth noting that these deadlines are kind of the last deadlines for each jurisdiction. So if you have three weeks, a lot of times you might certify within 2 or 2 and a half weeks. And if you fail to do so or indicate that you're going to fail to do so, you actually have a little time to resolve things. But even missing that first deadline, you know, usually there's some ample time built in as a buffer for later stages in the process to allow quick resolution. And again, courts have stepped in within 24 hours to be able to order certification. So that is usually not a lengthy process, because usually the answer is it's pretty obvious you're supposed to certify the results. You have all the ballot tabulation sheets. Let's get this moving. So in a state like Michigan, you know, if a county fails to certify, it goes to the state to certify, you know, if there's a tie or there's an inability to resolve it in other places. We saw this recently in New Mexico when the county refused to certify. The secretary of state sued the county officials in the New Mexico Supreme Court and said, I am requesting an order to have them certify and within 24 hours an order was issued. So there are alternative mechanisms, sometimes appealing to somebody else. But sometimes going to a court is the maybe more common avenue, and the judiciary can step in and order certification.

Hannah McCarthy: I think we should talk about why an election official might refuse to certify. So, like in New Mexico, the claim was that Dominion voting machines are faulty. So I will not certify these votes because I do not trust these votes.

Nick Capodice: And that was an inaccurate claim, correct?

Hannah McCarthy: Yeah, that was inaccurate.

Christina Phillips: So if the machines are not working, you still have the ballots. And if you're following chain of custody, they have not been tampered with. There are alternative ways for you to count those ballots and then certify them. So the point is that there are mechanisms built in that you never are supposed to be able to just say, all these votes don't count, at least on a scale that would change the results of the election. There shouldn't be that many ballots where there's a problem. And so whether you certify or not is not really supposed to be at question here. And every state will have mechanisms to make sure that that certification does happen, even if it requires going back and taking some of these other steps to count the ballots to check the ballots.

Jessica Huseman: A lot of these people who think that the 2020 election was stolen will get elected to county clerk or something. Again, this is like a really small number of people who have done this, but then they get in office and they learn about all of this stuff that they have to do and all of the requirements that they have to fulfill. And they're like, oh, it's actually fine, right? And they realize that they have a job that they must do under law, or they're going to be held accountable for it. And there are steps in the law that they must follow. Like this is not the Wild West. You know what I mean? Like, there are there are specific rules that dictate how each step of this process is done. And so if a person goes rogue and decides not to follow those steps, you can file a lawsuit against them. And I think that states are ready to do this. I think that's like a really important thing for your listeners to know, is that for every person that doesn't want to certify the election, there is like a lawyer sitting in the Secretary of state's office that has pre-written a lawsuit against that county and will file it as soon as they hear a problem, because the state, like delaying certification, really messes up the state's process, which is why, you see, in 2020, when we first started seeing counties try this stuff, they Universally failed to do it right.

Jessica Huseman: They, you know, Nye County, Nevada. Cochise County, Arizona. A couple of, like, tiny little counties in Texas all attempted to not certify the election. Then they were sued and realized they could go to jail. And they were like, just kidding. It's certified now. Right. And that was it. And that was it was in an environment in which we didn't necessarily expect those things to happen. Like we very much do now. Like the Secretary of state's are ready. Every Secretary of state's office that I have spoken with is, like, prepared for this. They have pre-written lawsuits. They have found plaintiffs in every county that will put their name on these lawsuits. And so it's not going there's. There's not going to be a lot of uncertainty for very long. They have come up with a game plan for those scenarios.

Hannah McCarthy: I really appreciate this idea that like people who feel that the system is not secure, who then like get elected to office specifically to like, you know, protect it. And then they're like, oh, like, I thought it was messed up and it's not. I just think that's like really interesting. It just like, goes to show that so often it's just a lack of understanding that results in crying wolf, basically.

Nick Capodice: My favorite part of it is that it's bureaucracy, red tape and boredom that stops people from understanding. They're like, why don't I know what happens behind that closed door? Well, because you would be bored to tears if you knew all the steps. And then they find out like, this is so boring. Why did I do this?

Hannah McCarthy: Yeah. I don't want this job.

Nick Capodice: I gotta tell, I gotta tell my family. I've been wrong all these years.

Hannah McCarthy: President is hard.

Christina Phillips: Yeah, and if you are like me, somebody who loves reading the minutia of rules and laws and everything. Most states have some sort of transparent documentation of what's supposed to happen. Like if you contacted somebody who worked at your polling location, were like, can you explain to me how you're counting the ballots? They could probably, you know, maybe don't do this on Election day because they're probably busy, but like, they could bring out their their binder. That's like, okay, so then we do this, then we do this. And this is what happens if this happens. They have all that written down and they probably would love to talk about it with you.

Hannah McCarthy: Or volunteer at your polling place. Become a part of the process.

Christina Phillips: I do want to hit on one other thing here. When we're talking about bad faith actors, people who may mistrust the process or attempt to undermine the process, maybe mistrust the process to the point where they attempt to undermine it. There are actual real stakes here. So I think it's sometimes easy to forget, like if somebody is going to question the certification and accuse someone of voter fraud or say they don't think these votes can be counted because of voter fraud, and there aren't actually real, measurable instances of that, and they still refuse to certify things happen to them. Like there, there's accountability there. So I asked Derek, I'm like, what is the accountability to make sure that these people are doing their jobs? And here's what he said.

Derek Muller: Yeah. So depending on the state again in some states you can lose your job. You know, you can be ejected from office for malfeasance for failure to perform your responsibilities. You could face criminal penalties for failing again to to perform the acts that are required of you by law as an election official, the court can hold you in contempt. So again, there could be fines or they could incarcerate you until you comply. So there are these penalties that induce election officials to behave. But then, you know, if you have a really recalcitrant official who refuses to do so, courts have mechanisms to order someone else to perform the act as if you were the one who performed the act. So the point is, there's not just a secret way of escaping it by saying, I'm not going to do it. The court can say, if you're not going to do it, I have the power to order someone else to do it as if it were you. And this is this is the kind of remedy that might be if you were supposed to hand over somebody a title or deed to property and you refuse to sign the deed, well, you can't just secretly hold the property. The court can order somebody else to do it on your behalf. It would be the same thing as if you were refusing to certify election results. We can find someone else to do it.

Christina Phillips: So now we're moving on to the next step, which is state certification.

Nick Capodice: This is step three. Yes okay. Great state certification.

Christina Phillips: State certification I mentioned before, there's this deadline of December 11th, 2024 that states have to certify this is actually from the federal law, the Electoral Count Act. Now, the Electoral Count Reform Act that determines that states have to certify six days before the meeting of electors in that state, which this year is December 17th. And what that means is that they receive all the official results from local election boards that have approved them and certified them. And according to federal law, every state has to appoint a chief election official. In most states, this is the Secretary of State. You might also hear the chief election officer, the executive director, the administrator of elections. In most states, this person is elected. In some states, they're chosen by the legislature or they're appointed by the governor or something like that. And I think one thing that's super duper important here is that this state certification is supposed to be what Derek calls a ministerial process.

Derek Muller: So that's a word we use in the law to suggest that there's not discretion. That is, you are pretty much taking those certified results from the municipalities, the counties, whatever subdivision you have, and you are adding them up and making sure that on the face of the returns that they look complete, there's not a zero in some precinct for the total of the results, or you've got 27 counties that you have all 27 sets of results. So you were engaged in that sort of functional analysis just to make sure we've got everything set. All the i's are dotted and t's are crossed. We add up the results and we certify the outcome. So it's a formal process just to make sure we've closed the loop of taking all those things across the state and have one final resolution.

Nick Capodice: I love this because we live in a representational democracy, right? We pick our representatives, and because we trust their judgment, we think they're going to do X, Y, z, or they're going to make decisions. They're going to make the hard calls. I like that within the system, there are also jobs where there is no decision, right. You don't get to make a choice here. You are just you're a cop. You're like a cog who looks at a number and agrees with that number. This is not a time for somebody to have feelings and emotions and thoughts and want to do something.

Hannah McCarthy: Yeah, I like the phrase passionless. It's not at your discretion. Like you have no discretion.

Christina Phillips: Yeah, that's really your role at that point. And we will talk more about this discretionary thing when we get to the vice president and Congress. So that's a little bit of a preview there. So we are coming up to the electors. Okay.

Nick Capodice: So all right I know this part. Yeah.

Christina Phillips: We're going to talk about that after a quick break.

Nick Capodice: But before that break, if you like minutia and are interested in the films of Fatty Arbuckle, if you like any of that stuff, you should read our newsletter. It's called Extra Credit. It comes out every two weeks. It's fun and it's free. And you can get it on our website, civics101podcast.org.

Hannah McCarthy: We're back. You're listening to Civics 101 from New Hampshire Public Radio, and we are talking about what happens after Election Day in a presidential election. And before our break, we talked about canvasing, certifying the local results and the role of the courts. And, Cristina Phillips, you were about to walk us through the next step, which I am told is electors.

Christina Phillips: Yes. Nick, would you please do me the honor and explain who electors are and what they do?

Nick Capodice: Oh of course, absolutely. But before I do, what's the law about when the electors convene?

Christina Phillips: It is the first Tuesday after the second Wednesday in December. December 17th, 2024 this year.

Nick Capodice: What's funny about all the dates? Like, do you know the reason we do the first Tuesday in November for like, why is it a Tuesday? Why is it not a Monday?

Hannah McCarthy: I always assumed it was because of my birthday.

Nick Capodice: It's all because of. It's like the same reason that kids have school off in the summertime. It's about weather. So the reason it can't be on a Monday is because the day before Sunday, people might be going to church, right? So they won't have time between Sunday and Monday to walk from their farmhouse to the town where the election is happening. Like you want it to have a day grace period so people could travel to their polling place. Right? And then this time period between the actual day that we vote and then the electors vote, that's also dependent on whether everybody has to travel. All the electors have to travel to the state capital to vote. What was your question?

Christina Phillips: So tell me who these electors are. Okay.

Nick Capodice: So electors and we call it a slate of electors. Right now, every presidential candidate in every state has a slate of electors, which are sort of so-called loyal people to that candidate who are pledging that when they go to vote in December, they will pick the candidate who won that state. Right. So, you know, I live in New Hampshire. If hypothetically, if Kamala Harris wins New Hampshire, the number of electoral votes your state has is the total number of people your state sends to Congress. So every state gets two for its senators. You add the number of members of Congress to that. So New Hampshire has two members of Congress and two senators, four electoral votes total. There are four people who are going to meet at the state House who have been picked by the DNC, you know, or the New Hampshire Democratic Party to cast their four ballots for Kamala Harris. And we should.

Hannah McCarthy: Also clarify that, like right now, there are electors both for Harris and for Trump in every state. Yes, but it's only the electors for the candidate who won in that state who get to go and say, I am voting.

Nick Capodice: Except for a couple of states which do it differently, which is Maine and End. Nebraska. Dc's a little funny. Dc just has three electoral votes.

Christina Phillips: So the state, once they've got their verified results, they prepare what's called a certificate of ascertainment, which is essentially a piece of paper that says, here are the list of electors who will be representing the state, will be casting ballots on behalf of the state, representing the will of the people, which is the popular vote. And so that certificate of ascertainment, one copy is sent to the National Archives to be kept as a record, and then six of them are brought to the meeting of electors, where those electors will meet on December 17th. And you can watch this in many states, you know, stream it online and see these electors cast their ballots. And so all of that will get bundled together with one of those certificates of ascertainment. And then they get sent six different places. Now. Do you know where those places are?

Nick Capodice: No. And I even I even used all that audio of all those meetings from my episode on the Electoral College so long ago.

Christina Phillips: Yeah. So basically, this is just a way to make sure that there's six official versions of the correct certified, stamped, secure electoral votes. So there's no chance that we don't have them in Congress. On the day of the official counting of the votes on January 6th. So one will go directly to the president of the Senate, two, go to the state's chief election officer, and then one will go to the judge of the district where the electors had their meeting. So essentially, we're making sure that you're a court system in your state, has a copy to go to the national archivist. And then there is a process where, let's say one does not arrive in Congress. The president of the Senate is like, I don't have anything from New Hampshire.

Hannah McCarthy: Lost in the mail.

Christina Phillips: Yeah. The national archivist will then have a process of approaching in an order like first I'm going to go here and I'm going to get it from these people, and then I'm going to go here. And I don't actually have that off the top of my head, but they have a process to make sure, no matter what one of those copies that's been certified reaches Congress. Now, really quickly, I just want to go through what happened with the fake electors, the fake elector scheme of 2020. So in several states, and this was slightly different depending on the state, some of those Republican nominated electors for the Republican Party in states where the Democratic electors were officially certified to cast their votes and prepared their official ballots, because Biden won those states and he was given those electoral votes. Some of these Republican electors also prepared their own version of their ballots, and these were in some cases set aside. And it was said in case the courts overturn the results in this state, we want to have these ready. And then in some cases, they were instructed sometimes by Trump's legal team to give those to Vice President Mike pence so that he could choose during the official count. No, I'm actually taking these votes. Okay.

Hannah McCarthy: I feel like we should probably just mention faithless electors. I was just going.

Nick Capodice: To say that too.

Christina Phillips: Okay.

Hannah McCarthy: So a faithless elector is somebody who, regardless of the state's vote, like, let's say the that the state voted for a certain person. So, for example, like a state goes for Trump and the Republican Party electors then show up. A faithless elector is someone who will say like, no, it's Harris or some other Republican candidate or something like that.

Nick Capodice: Almost every election there's like 1 or 2 faithless electors. Faithless electors have never changed the outcome of a presidential race. Many states have laws on the books which say you are not allowed to vote for somebody other than the person who won your state. Right. And that's interesting because the Electoral College was created to have faithless electors. Electors were supposed to vote their conscience and vote their mind. They weren't supposed to just vote for whoever won in the state. And I think it even went to the Supreme Court. And the Supreme Court ruled that states are allowed to pass laws banning faithless electors.

Christina Phillips: We mentioned it before, but this is all laid out in a federal law, this this process of the electors of sending the certification, the certificate of ascertainment, all of these documents showing up in Congress, it's laid out in a federal law that was known as the Electoral Count Act of 1877, which was actually amended in 2022. But the act was created as a result of a contested presidential election in 1876. Do either of you know what happened then?

Nick Capodice: I sure do, Hannah. I think you know about this, too. No. You want me to talk about it? Yeah. Yeah. The 1876 election is As perhaps one of the most contentious elections in US history. It's deserving of many episodes of Civics 101. I'm not going to go all the way into it, but basically Rutherford B Hayes versus Samuel Tilden, 1876. This is the election that Hayes won and got him the nickname Rutherfraud. Rutherfraud be Hayes. But basically, wasn't it? Congress had to agree who to give the election to. And this was the this was the dark bargain that ended reconstruction. This was this was bad, right? Isn't that what happened in 1876?

Hannah McCarthy: Well, if you've participated in the three episodes on reconstruction, I did, and it didn't end reconstruction, but troops were removed from enforcing certain things. But this provision of Congress choosing the president that's in the Constitution, like Congress, is like they pick from the top three candidates and they're like, it's yours. Now, if there isn't a clear winner.

Christina Phillips: And in that case, there wasn't a clear winner because several states could not agree on who would get the electoral votes. And there were accusations and actually proven election fraud. Election tampering, like over 100 black Republicans were killed in South Carolina. And so it was super contested. And they basically were looking at several states where they couldn't all agree on what the electoral votes like, where they should go. Right. And so they put it to a commission. They were like, okay, we know that as Congress, we can choose, but we don't really know how to do that. So they put it to a 15 person commission. That commission ultimately rewarded all these contested votes to Hayes, and then Congress had to vote to approve that or not. And basically, Hayes went to Congress was like, hey, I will sort of end reconstruction if you give me that support. And they were like, okay. But everyone pretty much agreed that, like, this is not how it should go, especially because the participation in that election was extremely high. It was over 80%. Wow. So all these voters voted, and ultimately it ended up being decided in Congress through negotiation, essentially.

Derek Muller: So the Electoral Count Act was enacted in 1887 and designed to resolve some of the problems from that crisis. Election of 1876 make it a little tougher for Congress to throw out votes, streamline the process for counting votes, give some deference to states, and so on. It has largely worked, but there's no question it's come under strain.

Christina Phillips: So here is how it's supposed to work once these votes get to Congress. The vice president, in a joint session of Congress, counts the electoral votes for each state, and members of Congress are allowed to object to the state results, but only for two reasons.

Derek Muller: So there are two specific objections that members of Congress can make. The first is that the votes were not regularly given, and that's a phrase that there's something the electors did wrong. The electors when they voted on December 17th, they didn't vote by ballot or they voted on the wrong day like December 18th or they were bribed. So there's a way of this is a phrase that, again, harkens back to the 19th century, but is designed to deal with the behavior of the electors themselves. And again, that's pretty late in the process. It's not a place for courts to really get involved, to place for Congress. The other is that the votes were not lawfully certified. And that's a phrase that means, you know, it doesn't come with a certificate of election from the governor or secretary of state with a security feature attached to that certificate. If you don't have anything, Congress shouldn't count it. But again, Congress is also supposed to deem as conclusive the certificate that comes from a state signed by the executive, ratified by a court. So there's very narrow grounds to object that the result was not lawfully certified, because we have all these additional processes to certify the results. And the objection is regularly given, deals with a very narrow universe of unusual exceptions that we haven't seen, you know, in some time in the United States, not since 1872, really, with objecting to the behavior of the electors themselves. So there's two grounds for objection. It's not to say members of Congress might not try to abuse those objections.

Christina Phillips: Furthermore, the vice president is essentially there in this ministerial role. They're supposed to keep order and make sure the count is completed. Now, this was all pretty routine until 2021. And do you remember some ways that then-President Trump tried to inject his own interpretation of this process?

Hannah McCarthy: I believe the assertion was that pence could simply give Donald Trump the presidency again. Correct. Yeah.

Christina Phillips: Trump was asserting that pence could choose where electoral votes went if they were in question, and then also that members of Congress could object. It was sort of a loose interpretation of the two reasons that Congress may object to the certification of the vote.

Nick Capodice: Yeah, but neither of those happened. So how did they how did they justify objecting to these votes?

Christina Phillips: Actually, I asked Derek. I was like, can you walk me through what objections look like in Congress in 2021? And he lays out what happened in the case of Arizona.

Derek Muller: Several members of the Senate and a number of members of the House filed a written objection, saying that the votes were not regularly given out of the state of Arizona. Now, again, that was the wrong objection. Regularly given deals with the behavior of electors. In reality, what they want to challenge in Arizona was they felt like there was potential risks of noncitizens who had voted. They felt like there were problems with the voting machines tabulating the ballots. In Maricopa County, there were problems with the printers and the administration of the ballots. It's kind of a kitchen sink of complaints about the administration of the election in Arizona. So Vice President Mike pence receives that objection, again signed by then one member of the House and one member of the Senate. Although there were many others that objected, that meant that the chambers had to separate, and so they separated to debate. They were each supposed to debate for two hours, and that debate was interrupted because there was a riot at the Capitol, right. That that stopped the proceedings for several hours. But then they they gathered back together, finished the two hours of debate. They voted on the objections. Each House rejected the objection. So you would need a majority of both houses to sustain you. They had they didn't even have one to vote to sustain the objection. So then they gathered back together into the chamber. Uh, Vice President Pence recognized that the objection had failed. Um, and then they went on to continue counting going on down through the States.

Hannah McCarthy: But I think, once again, this is an example of, you know, people can say that things can go a certain way, but at the end of the day, there are regulations, there are procedures. There are like, you can't just force it, right? You can try, but then the boring stuff gets in the way.

Nick Capodice: What's interesting to me about this one is the kitchen sink notion, right? Everything was wrong with it. And well, what specifically? Oh, I don't know, everything. It's like when somebody throws their hands up and says everybody's corrupt, nothing matters. But then they're like, okay, tell me specifically what is corrupt? Well, this thing and this is a great example of somebody just being very patient. I was like, give me specific examples of show me what is wrong and what what happened unfairly. And the person is unable to provide a single piece of evidence.

Christina Phillips: And then also the threshold is pretty high. The majority of people need to agree with them, which when you think about Congress now, it's pretty Partizan.

Nick Capodice: Arizona is very early alphabetically. So you know, we got a lot more states to get through. I think it's telling. This happened kind of at the beginning of the day, sort of get ready. Did it happen again or was it just that one time?

Christina Phillips: It was also Pennsylvania. Okay.

Nick Capodice: Pennsylvania. In the middle of the alphabet. Same thing at that time. Same thing happened.

Christina Phillips: Yeah, yeah. Similar thing. There was a challenge and that challenge was discussed and it was not found to have merit. So that was in 2021. This is before the reform to the Electoral Count Act in.

Derek Muller: 2022, when Congress enacted the Electoral Count Reform Act. It was designed to strengthen kind of all of those existing procedures. So it said states, you really need to resolve your disputes by December 11th this year, and you really shouldn't be dragging litigation past that deadline. And we want to have firm results by that date. And we as Congress are going to give deference to judicial orders that happen by that date. So those are not things that we didn't have a firm deadline and we didn't have that that guarantee of congressional deference to judicial results. You know, in the old act.

Christina Phillips: There's this line that he says about that Congress will give deference to the courts. If the courts have already agreed that these certified results are in fact certified. Congress, then, is supposed to defer to those decisions. It's not supposed to say, well, actually, no, no, we have a question about this. We want to bring that challenge again, because it's already been litigated.

Derek Muller: When it comes to Congress. It was quite clear, I think, that the vice president had no role to throw out votes or to make decisions. But, you know, out of an abundance of caution, the Electoral Count Reform Act adds some express language, saying the vice president's role is ministerial and non-discretionary in nature. You are just to preside over the hearing, to to hear the objections, to keep time, to move things along. You don't have any substantive role. And when it comes to Congress, it used to be that if one member of the House objected, one member of the Senate objected, you could separate for two hours of debate. And this happened in 2005, when Democrats objected to Ohio. This happened in 2021, when Republicans objected to Arizona and Pennsylvania. And a lot of other times people have tried to object. And now this says it now requires 20% of each chamber to object, not just one member of each. So it's going to clamp down on Congress's ability to sow doubt and sow confusion into those results.

Hannah McCarthy: Oh, wow. That's a huge difference. I just think it's very funny because it's like it's not that part, but the vice president part because it's like just to clarify, per usual, the vice president doesn't do anything like it is the most notoriously do nothing. Your job is to wait just in case, you know.

Nick Capodice: Like you break ties in the Senate.

Hannah McCarthy: Yeah, but it's just kind of funny to me.

Nick Capodice: I do like when people campaign on, like, I've done the most broken ties in the Senate. It's like, oh, good job, you know? Yeah, but who was it who said the vice presidency isn't worth a bucket of warm spit?

Hannah McCarthy: The quotes over the course of American history of vice presidents being like, this job is nothing. I don't want this like there are so many hilarious quotes from historical figures.

Nick Capodice: What I find kind of heartening is if this was 2022, this was signed. This is a Congress that is quite notorious for not passing a lot of legislation. So I think it's interesting and maybe a bit heartening that this, again, ministerial nonpartizan sort of effort to just do things by the books was agreed upon by even a quite contentious Congress and then signed into law by the president. I just think that's interesting. Mhm. I have a question. One of the presidential candidates for the upcoming election is also the vice president later.

Hannah McCarthy: Yeah.

Christina Phillips: Nick, you're spoiling the rest of my...

Nick Capodice: I'll pretend I didn't ask it.

Christina Phillips: I was just over here scrolling. I'm like, let me get to that part that I wanted to get to. So yes, that is a very good point. And you're asking about what happens if the vice president is supposed to.

Nick Capodice: Has this ever happened before? Yeah.

Hannah McCarthy: I can't operate on this.

Nick Capodice: She gonna open it up and be like, well.

Hannah McCarthy: Wait, what's the joke? I can't operate on this patient. He's my son. He's my son.

Nick Capodice: How is that possible? Yes, yes. It was a lady doctor.

Christina Phillips: So I do want to make sure that for anyone listening to this, I'm like, what are they talking about? This is the idea that the vice president, the sitting vice president, might be overseeing the certification in which they lose or they or they win.

Nick Capodice: It's also kind of funny.

Christina Phillips: This has happened seven times before.

Nick Capodice: Seven times? Yes. So he didn't gore do it in Bush v Gore? Yes.

Christina Phillips: So so was...

Nick Capodice: He like Florida? Well.

Christina Phillips: So Vice President Kamala Harris will be, you know, doing this ceremonial overseeing of this count in Congress. And that will happen whether she wins or not. So, as Derek said, her role is ceremonial. She's not supposed to be objecting to any state results herself or ruling on any objections. And to quote the 2022 law the vice president has, quote, no power to solely determine, accept, reject or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors. So, Nick, you asked if this has happened before where a vice presidential candidate maybe just having to hand off the election in which they lose. This has happened three times, including two Richard Nixon and to al Gore. The second one was, as we know, super controversial, right?

Nick Capodice: The election was controversial.

Christina Phillips: The election was controversial.

Nick Capodice: But I feel like the I feel like the electors part wasn't. I feel like I remember al Gore. People were like, is he going to do something? Yeah. And he didn't. He followed the rules.

Christina Phillips: No. So in both of those cases, and in 2020, when Vice President Mike pence was under pressure from his president and there was an insurrection, an attempted insurrection, the process got interrupted, the democratic process that is built into our law was upheld. That's what we should expect from Vice President Harris. That's what we should expect from Congress. This is.

Hannah McCarthy: Because that's the law

Christina Phillips: Yeah, this is the law. And also this is what they've run to protect and to uphold. This is their job, right? So that's what we should be expecting to happen this time.

Hannah McCarthy: I think as is I've been told so many times, like if you don't trust the process, volunteer. If you don't trust the process, call up your election official. Like the process is boring and like there are many, many fail safe fail safes.

Nick Capodice: Fail safes. That's really interesting. Fail safes.

Hannah McCarthy: Fail safes?

Nick Capodice: Yeah, I think it's fail safes. Oh, it's fails safe. Oh, it's like inspectors general. I'm kidding. No it's not. I was like, it's definitely not. I got your joke. You did? It's William Safire orders two Whoppers Junior.

Hannah McCarthy: Um, and it's also just so interesting that Congress passes this law that's like just to clarify and just and that it was passed at all. I feel like is a little bit of proof positive of like, let's all just agree here that like there is an established process, like it's it's not sexy at all, which should give all of us some peace of mind I think.

Christina Phillips: Yeah. And I think to that point, one thing that was made so clear to me in the process of pulling all this together is that if you've thought about it, someone else has definitely thought about it and probably put it in to the rules or the laws. So the idea that there could be people who vote in multiple locations, that let's say, somebody who is dead is able to cast a ballot for whatever reason. People have thought about that, and they've come up with ways to check. That is why there's such minuscule rates of actual deliberate voter fraud, minuscule minuscule rates of votes not being counted because of an error or an issue, because somebody has thought about the worst case scenario in all of these many, many different ways that things could go wrong and they've come up with a plan. Another thing that was really interesting to me about this is that it all kind of comes down to like following a book, like following a rule book. And when you have to sort of follow a rule book, it removes a lot of the opportunity to mess with things. Something isn't just going to fall through the cracks, like it's not just going to be forgotten. And if somebody deliberately tries to manipulate, you're going to find out about it. It just doesn't happen. I mean.

Hannah McCarthy: It makes me think about so I don't slack off at this job because I love it. But I've had jobs in the past that I hate where I can't slack off because it would be too apparent that I wasn't working right, because it was just like filling in a spreadsheet all day. And it was so just like purely procedural and administrative that I couldn't not do the job. And that's what makes this makes me think of like it would just be too glaringly obvious that someone is not doing the job.

Nick Capodice: I love what you said, that it's like if you've thought about it, you better believe there's a lot of people who have already thought about it, too. You're not going to come up with something new about like, some little loophole.

Christina Phillips: Yeah, if somebody thought of it and they've probably had a late night meeting where they they woke up at 2 a.m. and were like, what about this? And then they called their poor friend who also works in the office, and he's like, we have to figure out a problem, solve this thing.

Nick Capodice: Or they took care of that over in Maricopa. Yeah, we already had. We already thought of that. Steve's on it. He's down there taking care of it.

Christina Phillips: I'll share his Google doc with you.

Nick Capodice: Later. Yeah, yeah, He showed us the deck last week. We're gonna look at that. All right.

Hannah McCarthy: This was fun. This was.

Nick Capodice: So fun.

Christina Phillips: Good. I'm glad.

Nick Capodice: I hope it's not hard to edit.

Speaker6: It's gonna be great. We have so much time.

Nick Capodice: Stop it. And the saving is tricky in the multi-track.

Hannah McCarthy: Oh my God. Yeah! Hit!

Nick Capodice: Stop, stop.

Hannah McCarthy: This episode of Civics 101 was produced by Christina Phillips and edited by Rebecca Lavoie. Civics 101 is hosted by me, Hannah McCarthy and Nick Capodice. Music in this episode is by Epidemic Sound, blue Dot sessions, and Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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