Category: Politics

House committee holds moment of silence for Charlie Kirk

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Harvilicz on the federal government’s cybersecurity response: No ‘infighting’

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​Politics

The United States will celebrate the 250th anniversary of the Declaration of Independence, the country’s founding document, in 2026. Twenty years later, America will celebrate the 250th anniversary of President George Washington’s Farewell Address, which was published on Sept. 19, 1796.

The two documents are the bookends of the American Revolution. That revolution began with the inspirational language of Thomas Jefferson, who wrote much of the Declaration of Independence; it ended with somber warnings from Washington, the nation’s first president.

After chairing the Constitutional Convention in Philadelphia and serving eight years as president, Washington announced in a newspaper essay that he would not seek another term and would return to his home in Mount Vernon. The essay was later known as the “Farewell Address.”

Washington began his essay by observing that “choice and prudence invite me to quit the political scene” while “patriotism does not forbid it.” The new nation would be fine without his continued service.

But Washington’s confidence in the general health of the union was tempered by his worries about dangers that lay ahead – worries that seem startlingly contemporary and relevant 229 years later.

Focus on the domestic

Washington’s Farewell Address is famous for the admonitions “to steer clear of permanent alliances” and to resist the temptation to “entangle our peace and prosperity in the toils of European ambition.”

Important as those warnings are, they are not the main topic of Washington’s message.

During the four decades that I have taught the Farewell Address in classes on American government, I have urged my students to set aside the familiar issues of foreign policy and isolationism and to read the address for what it says about the domestic challenges confronting America.

Those challenges included partisanship, parochialism, excessive public debt, ambitious leaders who could come to power playing off our differences, and a poorly informed public who might sacrifice their own liberties to find relief from divisive politics.

Washington’s address lacks Jefferson’s idealism about equality and inalienable rights. Instead, it offers the realistic assessment that Americans are sometimes foolish and make costly political mistakes.

Rule by ‘ambitious, and unprincipled men’

Partisanship is the primary problem for the American republic, according to Washington.

“It serves always to distract the public councils and enfeeble the public administration,” he wrote. Partisanship “agitates the community with ill founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection” and can open “the door to foreign influence and corruption.”

Though political parties, Washington observes, “may now and then answer popular ends,” they can also become “potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.”

Washington’s fear that partisanship could lead to destruction of the Constitution and to the rule of “ambitious, and unprincipled men” was so important to him that he felt compelled to repeat the warning more than once in the Farewell Address.

Politicians’ ‘elevation on the ruins of public liberty’

The second time Washington takes it up, he says that “the disorders and miseries” of partisanship may “gradually incline the minds of men to seek security and repose in the absolute power of an individual.”

Sooner or later, he writes, “the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.”

So why not outlaw parties and rein in the dangers of partisanship?

Washington observes that this is not possible. The spirit of party “is inseparable from our nature, having its root in the strongest passions of the human mind.”

Americans naturally collect themselves into groups, factions, interests and parties because that’s what human beings do. It’s easier to be connected to local communities, states or regions of the country than to a large and diverse nation; even though that large and diverse nation is, by Washington’s assessment, essential to the security and success of all.

The central problem in American politics is not a matter of devious leaders, foreign intrigue or sectional rivalries — things that will always exist.

The problem, Washington warned, lies with the people.

Excesses of partisanship

By their nature, people divide themselves into groups and then, if not careful, find those divisions used and abused by individual leaders, foreign interests and “artful and enterprising” minorities.

Political parties are dangerous, but can’t be eliminated. According to some people, Washington observes, the competition between parties might serve as a check on the powers of government.

“Within certain limits,” Washington acknowledges, “this is probably true.” But even if the battles between political parties sometimes have a useful purpose, Washington worried about the excesses of partisanship.

Partisanship is like “a fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest instead of warming it should consume.”

Where is America today? Warmed by the fires of partisanship or consumed by the bursting of flames? George Washington suggested that provocative question more than two centuries ago on Sept. 19, 1796. It’s still worth asking.

Robert A. Strong does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

Since returning to office, President Donald Trump and his administration have waged a war on diversity, equity and inclusion efforts, including those of private businesses across the country.

Trump fired the first shot on Jan. 21, 2025 – his first full day back in office – when he signed an executive order that denounced DEI as “immoral” and “illegal discrimination.” The order claimed that, under such policies, “hardworking Americans” were being “shut out of opportunities because of their race or sex.”

A week later, Trump dismissed two Democratic commissioners of the Equal Employment Opportunity Commission, the federal agency that helps enforce workplace antidiscrimination laws. Because these officials were forced out years before their terms expired, their firing was arguably illegal. But it allowed Trump to dramatically shift the commission’s focus.

Andrea Lucas, named by Trump to be the agency’s acting chair, quickly announced a commitment to what she described as “rooting out unlawful DEI-motivated race and sex discrimination.”

Since then, there’s been a steady drumbeat of anti-DEI statements from the administration and its supporters. But these proclamations fail to explain what is illegal about so-called “illegal DEI.” As professors and workplace law experts, we recognize that companies may have trouble distinguishing political rhetoric from legal obligations. That’s why we recently co-founded The Legal DEI Project, a free resource providing clear information on DEI policies and practices and the law.

Chilling effect

The Trump administration’s statements about DEI are generally broad in scope and short on details, leading to an overall chilling effect on private businesses.

For example, one of Trump’s executive orders suggests, without evidence, that corporations and other large employers have replaced a commitment to “hard work” with an “unlawful, corrosive, and pernicious identity-based spoils system.” It then instructs federal agencies to compile lists of the businesses and other institutions they believe are the “most egregious and discriminatory DEI practitioners” and pursue compliance investigations against them.

Some employers have responded to this threat by aggressively slashing their programs and personnel dedicated to ensuring fairness at work. That reaction is understandable. But it is also deeply mistaken, as many tried-and-true practices that effectively reduce workplace discrimination are getting caught in a dragnet of anti-DEI fever.

Employers who act rashly by simply abandoning all efforts related to diversity and inclusion may actually increase rather than decrease their risk of being sued by workers who believe they have experienced discrimination – the overwhelming majority of whom are members of racial minority groups rather than white workers.

Employers could also miss out on the benefits that can flow from diverse workforces, such as higher profits, innovation and creativity.

DEI isn’t illegal, but discrimination is

DEI is a generic, umbrella term used to describe organizational efforts to treat all people fairly. While such initiatives have been around for decades, the DEI label became common only in the past decade as the Black Lives Matter and #MeToo movements highlighted pervasive discrimination and inequality in U.S. society.

The term, however, has no legal meaning. DEI is instead a collection of aspirational objectives used as corporate or institutional branding, which Trump has turned into a straw man by repeatedly condemning what he alleges is “illegal DEI.”

Workplaces are governed by antidiscrimination laws. Those laws prohibit employers from making hiring or other personnel decisions based on workers’ protected characteristics such as race, sex or religion, just as they did before DEI programs became popular.

This means that employers generally cannot implement preferences for, or limit opportunities to, employees based on these traits. If DEI programs include improper preferences, those preferences were illegal before Trump took office. They should be discontinued.

Importantly, U.S. employment law requires employers to do more than just punish individual employees who make biased decisions or harass co-workers. Employers must also, at a minimum, take proactive steps to prevent harassment and reasonably accommodate workers with qualifying disabilities, pregnancy-related limitations and religious needs.

Employers must also make sure that workplace policies, such as how duties are assigned and how pay is set, are fair and unbiased.

Congress, not the president, creates laws

Multiple laws enacted by Congress, from the 1964 Civil Rights Act to the 2022 Pregnant Workers Fairness Act, and decades of court decisions interpreting those laws, have established the rules that govern the workplace today. The Trump administration has no authority to single-handedly change these laws – or the regulations implementing them – just by issuing executive orders.

What those orders primarily do is set presidential agendas. Presidents use them to direct some actions of the federal government and its contractors, but executive orders do not directly apply to most private companies, nonprofits or other nongovernmental employers.

Although the EEOC may follow Trump’s directives, it cannot change or ignore federal laws. In fact, recent EEOC actions – such as spontaneously demanding information from law firms about their diversity initiatives – that arguably exceed its authority are being challenged in court.

Employees, not the government, file most complaints

When employers attempt to conform to the Trump administration’s political goals by removing any guardrails they’ve put in place to prevent discrimination, they put themselves at greater legal risk. That is because most discrimination lawsuits are brought by employees, not the federal government.

On average, individual employees file 60,000 to 90,000 EEOC charges annually and tens of thousands of lawsuits arising from those charges in federal and state court. By comparison, the EEOC has brought fewer than 150 cases annually in recent years.

While the EEOC’s attack on DEI programs may encourage more white workers to file discrimination claims, the data shows that most actionable discrimination continues to be experienced by women and members of racial minority groups, not by white people.

And that problem is likely to be exacerbated by employers dismantling their DEI programs.

Not a zero-sum game

Just as employing a diverse workforce is perfectly legal, so too is taking action to value diverse perspectives and leadership.

Adopting inclusive recruitment strategies, structuring decision-making practices to be more objective, and assessing job descriptions to focus on tasks and qualifications can all help reduce the influence of racial, gender, religious or other biases in hiring and promotion. Offering training and mentoring, providing support to meet the needs of all workers, and creating environments that promote excellence and belonging can ensure equal access to opportunities for all employees.

Adopting such human resource practices also makes good business sense. When properly executed, they reduce the risk of workplace discrimination lawsuits and liability by flagging any potential discrimination and allowing employers to proactively address it.

Antidiscrimination law has always required employers to judge all workers fairly and on the basis of their merit. Making changes that aim to reduce bias against some employees is not an act of discrimination against white men or others who do not belong to a group that has historically experienced discrimination.

Those changes instead help employers comply with antidiscrimination laws – the same laws that have governed U.S. workplaces for over 60 years and continue to do so today.

Deborah Widiss serves on advisory boards for the Indiana Community Action Poverty Institute.

Rachel Arnow Richman receives funding from the University of Florida for academic research purposes.

Stephanie Bornstein and Tristin Green do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

President Donald Trump’s penchant to act first, ask later was on full display recently when he became the first president in American history to fire a member of the Federal Reserve Board.

Trump’s axing of federal employees is nothing new – thousands have been terminated, including the heads of agencies that, like the Federal Reserve, are designed to be insulated from presidential control.

But in removing Lisa Cook, Trump has entered into a morass of legal questions and challenged long-standing beliefs about the power of the president to control the U.S. economy.

Trump’s action, if upheld by courts, would upend the Fed’s century-long practice of formulating the nation’s monetary policy free from political pressure. It also could affect the budget of every American household, with the cost of goods and services influenced by political ideology more than financial expertise.

As a scholar of the American courts, I believe that, depending upon how courts resolve the case, it could also mark a significant shift in the ability of the judicial branch to check executive power.

This agency is different

The dispute with Cook reached the public on Aug. 20, 2025, when Trump-appointed director of the Federal Finance Housing Agency Bill Pulte announced on social media that he had made a criminal referral to the Department of Justice about potential mortgage fraud by Cook. The DOJ subsequently opened an official investigation.

After Pulte’s announcement, Trump posted, “Cook must resign, now!!!” She refused and was officially fired by Trump five days later.

Cook then filed suit in federal court on Aug. 28, asking U.S. District Judge Jia Cobb to issue an emergency order blocking her removal. The litigation is ongoing.

Among the multitude of cases about Trump’s ability to fire employees of federal agencies, this one is different – because the agency is different.

Created by Congress in 1913 after a series of banking panics, the Federal Reserve is charged with managing the nation’s economy. It acts as the national bank, monitors the health of other financial institutions, and, most critically, develops monetary policy, which includes setting interest rates, the primary tool with which it manages inflation and ensures long-term economic growth and stability.

Precisely because of the Fed’s power, presidents have often tried to influence it. Sharp criticism of its members is nothing new. Trump has an ongoing and very public fight with the chair of the Fed board, Jerome Powell, about interest rates.

But a president actually firing a board member is something else entirely.

Supreme Court warning

The Fed is just one of dozens of what are termed “independent agencies.” These are part of the executive branch but designed by Congress to operate insulated from the president’s preferences and pressure. Over time, precisely because it is so powerful, the Fed’s ability to act free from the president has become particularly sacrosanct.

The primary mechanisms through which Congress ensures agency independence are “removal provisions,” statutory directives that define when and why the president can fire agency leadership. The Federal Reserve Act, the law that creates the Fed and sets out its structure and mission, provides that members of the board, called “Governors,” serve 14-year terms, “unless sooner removed for cause by the President.”

“For cause” may sound familiar because its appearance in a different law also recently triggered litigation. That happened when Trump removed the heads of two other independent agencies, Gwynne Wilcox of the National Labor Relations Board and Cathy Harris of the Merit Systems Protection Board. The Supreme Court decided in April that the restriction on the president’s ability to fire those two independent agency heads violated Article 2 of the Constitution.

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Read more:
Supreme Court ignores precedent instead of overruling it in allowing president to fire officials whom Congress tried to make independent

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In that same opinion, however, the court took pains to specify that its ruling did not apply to the Federal Reserve Board. Calling the Fed a “uniquely structured, quasi-private agency” with a “distinct historical tradition,” the majority signaled to Trump that booting members off the Federal Reserve Board was a no-go.

When he fired Cook, Trump flouted this directive. A legal battle was inevitable.

What’s behind the case

The case is complex and involves questions about whether Cook’s termination violates a congressional statute and the due process clause of the U.S. Constitution.

Notably, the parties are not arguing about the constitutionality of the removal provision itself, as they were in the Wilcox case. Instead, the dispute centers primarily around the meaning of “for cause” – that is, what reasons can legally justify firing a board governor. Unlike other statutes, which use additional terms such as “inefficiency, neglect or malfeasance of duty while in office,” the Federal Reserve Act provides no further guidance.

Trump argues that the – alleged – mortgage fraud is sufficient “cause” to remove Cook, particularly from an agency charged with managing the nation’s finances. Cook claims that mere allegations about private conduct before she was appointed to the board cannot justify her termination, particularly when those allegations appear to be a pretext for a political disagreement.

But lurking in the background of this seemingly picayune fight over a single word in a 111-year-old statute are fundamental questions about separation of powers, checks and balances, and which branch of government determines the law.

‘Say what the law is’

Trump’s fuller argument is actually quite bold.

As he is doing in other lawsuits, the president is asserting that he – and he alone – gets to determine the meaning of “cause.” The term, his lawyers write, is “capacious” and its meaning is entirely vested by Congress in the president. No court can second-guess his judgment.

The claim is striking and seems to fly in the face of the country’s system of checks and balances. In addition, if the branch of government charged with carrying out the law – the executive branch – also gets to define it, separation of powers also appears to be left by the wayside.

Cook counters that judicial review of termination decisions is critical.

If courts abandon their responsibility here, she argues, they will obliterate the independence of the Federal Reserve and subject the national economy to the short-term whims of a president rather than the long-term vision of economic experts.

And given the clear and continued acquiescence of Congress to this president’s broad assertions of power, they would also remove what, at least until the next presidential election, may be the last remaining check on executive power.

The case will likely reach the Supreme Court this fall, and the outcome is hard to predict. Trump has benefited from a string of victories there issued by a conservative majority that believes strongly in executive power and judicial deference to the president.

At the same time, it will be difficult to ignore the sentiments about the independence of the Fed that those same conservative justices expressed in the Wilcox case and the potential economic consequences a ruling for Trump might generate.

The court’s ultimate decision may actually depend upon what role it wants to play in the country’s fraying democratic system. The legendary Chief Justice John Marshall famously wrote in 1803 that it is “emphatically the province and duty of the judiciary department to say what the law is,” a sentiment inscribed on the marble wall of the Supreme Court building in D.C.

This case provides the opportunity to see whether the maxim still holds true.

Claire B. Wofford does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

The two premier statewide elections this fall are Democrats’ to lose, but they have a lot to prove.

Many Democrats won’t be satisfied with simply eking out a win — they are banking on resounding victories from Rep. Mikie Sherrill of New Jersey and former Rep. Abigail Spanberger of Virginia. The gubernatorial nominees, who are leaning into their national security pedigrees, are carrying the weight of a party’s expectations.

The party is looking to them to springboard Democrats into next year’s midterms, with control of Congress up for grabs. They’re eager to show that 2024’s drubbing was an anomaly.

“Democrats should be optimistic about these two races, but you know, the lesson from 2024 is we can’t take anything for granted,” said veteran Democratic strategist Simon Rosenberg, who added that President Donald Trump’s mastery of dominating news coverage runs the risk of drowning out his rivals’ economic messaging.

After Democratic overperformances in local elections across the country this year, the party is bullish on their prospects. Recent polling has Sherrill and Spanberger leading their Republican opponents, Jack Ciattarelli and Virginia Lt. Gov. Winsome Earle-Sears, respectively.

When pushed, operatives express more confidence about Virginia, and acknowledge maintaining their grip on the governor’s mansion in New Jersey for the third consecutive cycle presents a tougher challenge.

National Democrats have committed what they called some of their largest initial investments in these states — $1.5 million each in New Jersey and Virginia — to boost Sherrill and Spanberger. A group backed by the Democratic Governors Association also placed $20 million in advertisements in New Jersey, around twice as much as the DGA-backed group did in 2021.

The political climate in Virginia and New Jersey is far better than what they’re facing in some battleground races next November. But the fear of being toppled by Republican nominees in states where Trump gained ground is adding pressure to the Sherrill and Spanberger campaigns, as are looming questions of whether they can unify their fractured coalition that cost Kamala Harris the election.

With two months before voters head to the polls in New Jersey and Virginia — and just weeks before early voting starts — here are some issues to watch.

Economy

Democrats are blaming Trump for rising costs as they emphasize affordability — an issue that catapulted him to the White House last year. If successful, that messaging is likely to serve as a blueprint for next year’s midterms.

Rep. Rob Menendez (D-N.J.) argued that Sherrill’s focus on affordability will appeal to those who backed the president because he has “lied about every major campaign promise” regarding cutting costs.

Democrats see this as a way to recapture Black and Hispanic voters, who drifted toward Trump in part because they viewed him as stronger than Harris on the economy.

“Many of the voters, the Latino and Black community, were looking for possible change. They thought Trump would be that change,” said Rep. Nellie Pou (D-N.J.), who represents a diverse district that Trump won last year. “Sadly, he has not delivered on any of the promises he has made. He has not changed the economy, he has not lowered the costs. … I think the Latino and Black community will see him for what he is.”

Democrats are hoping the Trump administration’s recent moves on tariffs and the One Big Beautiful Bill Act will sway voters in November. Republicans, meanwhile, are toying with how to market the megabill to voters ahead of next year’s elections.

This election will put Democrats’ Trump messaging to the test. But while they try to convince voters higher costs are the president’s fault, Ciattarelli and his fellow Republicans say outgoing Democratic Gov. Phil Murphy and Trenton Democrats are to blame.

In Virginia, Democrats are leaning into similar messages on affordability, arguing Trump has broken campaign promises on lowering costs since his return to the White House. The DOGE cuts, which are acutely felt in Northern Virginia suburbs outside of Washington, D.C., are paramount in the campaign as Democrats look to cast Earle-Sears as a cheerleader for Trump’s gutting of the federal workforce.

The Trump Factor

The GOP is hoping they can replicate the party’s success when Trump is not on the ballot — something that helped lift Virginia Republican Glenn Youngkin to the governor’s mansion four years ago. That red wave, however, was short-lived as Democrats successfully flipped control of the lower chamber of the Virginia legislature in 2023. Now Democrats are looking to expand their control of both chambers as well as usher in a clean sweep of all three statewide offices this year by leaning into anti-Trump sentiments.

But the president’s impact is an unknown factor in Virginia. Earle-Sears has yet to receive Trump’s endorsement, which some Republicans are bullish would help her make up ground.

An endorsement “would be a plus,” said Fairfax County GOP chair Katie Gorka. “I know that there are people, especially in Northern Virginia, who are not Trump fans. … But the bottom line is, Trump did really well for a Republican in Northern Virginia.”

In the meantime, Earle-Sears is borrowing from his 2024 culture-war playbook. In a campaign ad released Wednesday, she labeled her Democratic opponent a “woke Washington radical” who “wants boys to play sports and share locker rooms with little girls” and will allow kids to change genders “without telling their parents.”

The Spanberger campaign wants to remind Virginia voters that the Republican nominee, who advocated the Republican Party “move on” from the president just a few years ago, is now fully embracing Trumpism.

In New Jersey, Trump endorsed Ciattarelli in the Republican primary. But it’s unclear if the president’s support will provide a boost among the general electorate, in which Ciattarelli needs to earn the backing of unaffiliated and Democratic voters to chip away at Democrats’ large voter registration advantage. Recent surveys show Trump unpopular with New Jerseyans, and Democrats are confident he will drag Ciattarelli at the polls.

Ciattarelli recently told reporters he appreciates “that the White House isn’t taking a heavy-handed approach” with his race, but offered to “do anything” that Ciattarelli thinks “can help the campaign.”

Ciattarelli criticized the president years ago, and Trump did not endorse the New Jersey Republican in 2021. But Trump now proclaims Ciattarelli as “100 percent MAGA” — something Democrats are eager to remind voters of. Ciattarelli argues that Democrats are more focused on talking about Trump than New Jersey.

Who will boost Democratic enthusiasm?

While Republicans can rally the base around Trump this November, Democrats lack that clear leader.

When asked about whether a campaign appearance from Harris would benefit Sherrill, New Jersey Democratic Party Chair LeRoy Jones said he is focused on “utilizing the celebrity base in New Jersey that we have,” and cited Sen. Cory Booker and Newark Mayor Ras Baraka, the latter of whom came in second place during the June Democratic primary for governor.

“We have a number of individuals that give that turnout prowess,” he said.

Former President Barack Obama held rallies for Murphy and former New Jersey Gov. Jon Corzine, as well as Virginia nominees Ralph Northam and Terry McAuliffe. Though he hasn’t announced plans in either state yet, he participated in a fundraiser earlier this summer for Sherrill.

At least one potential 2028 Democratic White House candidate, Maryland Gov. Wes Moore, is planning to campaign for Sherrill and Spanberger in the closing stretch of the campaign.

Black and Hispanic voters

Across the country, Republicans are looking to replicate Trump’s inroads with Black and Hispanic voters. New Jersey and Virginia will be the first post-2024 test of whether they are able to achieve that.

In the primary, Sherrill had a lower share of the vote in areas with large Black and Hispanic populations, and some have warned that Democrats are at risk of continuing to lose those voters. Ciattarelli and Sherrill are working to engage those communities, and Sherrill recently got a notable boost with an endorsement from Baraka, who performed well in areas with large Black and Hispanic populations in the primary.

In Virginia, Republicans tout their diverse slate of candidates, with a Black woman running atop the ticket, an openly gay lieutenant governor candidate in John Reid and incumbent attorney general Jason Miyares, who is of Cuban descent.

Earle-Sears’ campaign also points to a recent $500,000 donation from Bob Johnson, the co-founder of Black Entertainment Television, as evidence she is making inroads with minority voters while picking up fundraising in the campaign’s final stretch. Spanberger enjoys a hefty 3-to-1 cash advantage, according to recent state campaign finance reports.

Spanberger was forced to play defense after a woman held a racially divisive sign last month at a campaign rally targeting the lieutenant governor. “Hey Winsome, if trans can’t share your bathroom, then blacks can’t share my water fountain,” the sign read. Spanberger said in a social media post the sign was “racist and abhorrent.”

Democrats counter that their own diverse ticket, which includes an Indian-born woman as lieutenant governor nominee and a Black man running for attorney general, better represent the values of voters of the state than their GOP counterparts. The party also vows their ticket will, unlike the Republicans, work to protect residents from the federal government overreach.

“Folks aren’t fooled in this campaign,” said Lamont Bagby, a state senator and chair of Virginia’s Democratic Party. “When we needed them to push back on the Trump administration … they did not.”

​Politics

The right to trial by jury in criminal and civil cases is enshrined in the U.S. Constitution. It’s also a critically important way in which citizens can participate in democracy.

The French thinker Alexis de Tocqueville observed early American juries at work. He noted in “Democracy in America” in 1831 that trial by jury “places the real direction of society in the hands of the governed, or of a portion of the governed, instead of leaving it under the authority of the Government.”

Yet, in a change with profound implications, juries now decide only a tiny fraction of criminal and civil cases in the U.S. The decline over time has been dramatic, triggering warnings from scholars since at least the 1920s. In 1962, when federal judicial statistics became reliable enough to track the trend, juries decided about 6% of civil cases; today that share is less then 1%.

In a recent article we wrote with our colleague Robert Peck, we described how in the 1960s a federal judge would typically preside each year over 10 or more civil jury trials – legal disputes between private parties. In 2024, the average federal judge heard only one or two civil jury trials per year.

Criminal cases, in which a defendant is accused of a crime, show a similar pattern. The average federal judge presided over roughly two jury trials in 2024.

In state courts, jury trials have likewise declined over the past decade. In most states, juries now decide just 1% to 2% of criminal and civil cases that come before the courts.

We study how juries work in practice and the jury’s institutional role in the constitutional structure. Both of us have observed how legal and policy shifts in the United States have limited the role juries, and thus citizens, play as a vital democratic check on government power.

Trials make disputes public, and jury trials allow citizens to debate the issues and return verdicts that reflect their community. That visibility and participation make the legal system more accountable and legitimate.

Replacing juries

The U.S. Founding Fathers’ long list of grievances against King George III in the Declaration of Independence included “depriving us in many cases, of the benefits of Trial by Jury.” In drafting the U.S. Constitution, they embedded juries throughout the new federal framework, for both civil and criminal cases. State constitutions likewise entrenched robust jury rights.

Early Americans thus saw jury service not merely as a procedural safeguard against overreaching government authority, but as a way to distribute the power granted by the Constitution, ensuring that ordinary citizens played an important role.

But over time, state and private actors have chipped away at that authority.

In criminal cases, the main mechanism that has diminished juries’ influence has been private bargains between prosecutors and defendants. Guilty pleas now resolve more than 90% of criminal cases nationwide, according to a 2023 American Bar Association report.

In “Punishment without Trial: Why Plea Bargaining is a Bad Deal,” legal scholar Carissa Byrne Hessick describes how defendants are pressured to plead guilty by the all-too-real threat of longer sentences if they exercise their right to a jury trial rather than accepting an offer from prosecutors. This so-called “trial penalty” has produced what some scholars refer to as an innocence problem, in which even factually innocent people rationally plead guilty.

Efficiency has a role in clearing crowded court dockets. But when almost all cases end in pleas, the legal system loses transparency and public checks on police and prosecutors’ work.

The same trend emerges in civil cases. Mandatory arbitration in consumer and employment contracts, along with legislatively imposed limits on the size of damage awards, have displaced jury determinations of liability and awards.

Procedural shifts since the 1980s also steer cases away from juries at the start. Federal and state rules of procedure are structured so that a civil jury trial is waived by default and must be affirmatively demanded.

The rise of what legal scholar Judith Resnik called “managerial judging,” where judges take a more activist role in supervising cases, channels cases toward private settlements where details are not divulged, even for those who prefer public resolution. Certain expanded pretrial procedures have also given judges the power to displace juries and terminate cases in light of their own “judicial experience and common sense,” as the U.S. Supreme Court put it in a 2008 opinion.

Although many of these changes were done in the name of efficiency, legal scholar Suja Thomas argues in her book “The Missing American Jury” that they also benefit political and economic elites by wresting away some of the power that formerly belonged to juries. The cumulative effect is fewer community judgments and more private, judicial and legislative control over outcomes.

How juries support democracy

In our view, restoring the jury to its original place within the constitutional structure would help revitalize the justice system’s democratic character.

As legal scholar Alexandra Lahav argues in her book “In Praise of Litigation,” trials make disputes public. Jurors hear evidence in open court, deliberate with other citizens about the issues and return verdicts that reflect community standards, in ways that backroom deals and private arbitration cannot.

Jury service also widens the circle of people invested in courts that work and that operate honestly. Although many people are initially dismayed when they are summoned to jury duty, most jurors become more favorable toward the courts once they serve.

These effects can reach beyond the courthouse. Some legal experts assert that restoring the jury could also spark broader democratic renewal at a time when civil society in the U.S. is under enormous strain.

This was evident in a set of studies by political scientist John Gastil and his colleagues that explored the connection between jury service and other forms of civic engagement. Examining jurors’ voting history before and after the period of jury service in seven states, they discovered that jury participation increased the likelihood of voting.

The presence of citizen participation in legal decision-making encourages civic engagement, fosters public trust and reanimates the participatory ideals on which the American republic was founded. John Adams put it well in 1774, when the British Parliament placed the judicial system of Massachusetts under royal control.

“Representative government and trial by jury are the heart and lungs of liberty,” Adams argued. “Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

Valerie P. Hans is a member of the Board of Advisors of the Civil Justice Research Initiative. Her research on juries has been funded by the National Science Foundation, National Institute of Justice, State Justice Institute, and Cornell University.

Richard Lorren Jolly is a senior fellow with the Civil Justice Research Initiative.

​Politics + Society – The Conversation

In October 2023, a group calling itself Return to the Land established its first “Whites only community” in the Ozark Mountains of Arkansas. They followed that with a second enclave nearby in 2025.

The group, which describes itself as a “private membership association” that helps groups form “European heritage communities,” plans to build four more sites, including another location in the Ozarks and two in Appalachia.

Return to the Land believes that by calling themselves a private membership association they can create a white ethnostate – a type of state in which residence is limited to white people – and legally exclude people based on race, religion and sexual orientation.

If you read the words of Eric Orwoll, the group’s co-founder, its mission is clear: “You want a white nation? Build a white town … it can be done. We’re doing it.”

As a scholar of right-wing extremism, I have examined several groups calling for a white homeland in America. The creation of a white ethnostate is often seen as an ultimate goal of such white nationalism, which argues that white people form part of a genetically and culturally superior race deserving of protection and preservation. While Return to the Land doesn’t identify as white nationalists, their statements often align with the ideology.

White ethnostates, big and small

One of the best-known plans for a white ethnostate is the Northwest Imperative, popularized by white nationalists during the 1970s and ’80s. The plan involved certain citizens taking 10% of the United States – the states of Washington, Oregon, Idaho, Wyoming and Montana – and excluding all nonwhite people from living there.

Proponents of the plan argued that these states were already majority white and contained large tracts of undeveloped land, making the territory ideal for white-only settlement. High-profile extremists of the time such as Richard Butler, Robert Mathews and David Lane supported the plan.

Still today, groups such as the Northwest Front, a white nationalist group founded in 2009 and located in the Pacific Northwest, continue to promote variations of this idea.

While the Pacific Northwest has a long history with right-wing extremist organizing, the proponents of whites-only communities have also targeted areas of the Northeast as possible locations for a white ethnostate.

In 2018, for example, Tom Kawczynski, town manager of Jackman, Maine, was fired when his views came to light, including views that have been characterized as “pro-white.”

More recently, in 2023, the People’s Initiative of New England, a splinter group of the neo-Nazi organization National Socialist Club-131, introduced themselves on the online platform Substack. There, the group laid out its goal of establishing the six states of New England – Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont – as white-only.

The goal of gaining control of multiple states is unrealistic, of course, at least peacefully. Therefore, a popular alternative, along the lines of Return to the Land’s actions, is to establish smaller all-white communities.

In 2013, media outlets reported that neo-Nazi Craig Cobb was buying land in the small town of Leith, North Dakota, to build a white nationalist community. The town rallied to oppose this attempt.

Later that year, Cobb was charged with seven felonies related to confronting residents with a gun. He was sentenced to probation for four years and deeded the property back to the town in 2014.

And in 2021, leaked Telegram chats revealed that Christopher Pohlhaus, a former U.S. Marine and founder of the neo-Nazi group Blood Tribe, wanted to establish a whites-only community in Springfield, Maine. Pohlhaus was developing a military training facility as part of these efforts when media coverage led him to sell the property and move out of state.

The danger of a white ethnostate

These various attempts to develop a white ethnostate are not simply individual, isolated cases. They form part of a larger movement toward achieving white nationalism.

A major part of white nationalism today is focused on anti-immigrant hatred. That has spurred major acts of extreme violence such as the 2019 murders of 23 people in El Paso, Texas, the majority of whom were Hispanic.

The “great replacement theory,” a conspiracy theory popular among white nationalists, argues that various policies are leading to the destruction of the white race. This theory inspired the 2022 mass killing of 10 Black Americans in a supermarket in Buffalo, New York.

The shooter selected the supermarket because of its location in a predominantly Black neighborhood and left behind a white supremacy manifesto.

Communities across the U.S. have successfully resisted the establishment of white ethnostates.

The residents of Leith, North Dakota, did this by creating a website informing people about what was happening in their community. Public outcry also met Pohlhaus in Maine.

As for Return to the Land, Arkansas Attorney General Tim Griffin said in July 2025 that his office is reviewing the group’s actions and whether they violate the law.

“Racism has no place in a free society,” he said, “but from a legal perspective, we have not seen anything that would indicate any state or federal laws have been broken.”

Paul J. Becker does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

In an emergency hearing before Judge Sparkle Sooknanan on Aug. 31, 2025, lawyers for a group of unaccompanied migrant children from Guatemala asked her to stop the Trump administration’s deportation of hundreds of them back to Guatemala. Concerned that the Trump administration might not follow her order to stop, the judge emphatically repeated her order that temporarily barred the deportations. And then she said something unusual:

“I am trying to do the best I can to fulfill my obligation as an Article 3 judge …”

The Conversation’s senior politics editor, Naomi Schalit, talked with former federal judge John E. Jones III, now president of Dickinson College, about the meaning of the term “Article 3 judge,” why Sooknanan might have used it, and why recent discussions of politics and law in the news have included notably more references to “Article 1,” “Article 2” and “Article 3,” normally terms reserved for discussions of constitutional law.

What is the ‘Article 3’ that Judge Sooknanen referred to?

The meaning is not something that a lay person can necessarily intuit.

It’s quite clear that the course that the Trump administration has taken in the many lawsuits against its policies is to say, “We will obey the Supreme Court of the United States, but we’re going to pick and choose the lower court opinions that we deign to follow.” And of course, Judge Sooknanan’s comment invoking the phrase “Article 3” was meant to say that, the same as a Supreme Court justice, she is a fully vetted and confirmed jurist chosen by the president and confirmed by the Senate. That’s what’s known as an Article 3 judge, authorized under Article 3 of the Constitution.

So, inferentially, what she’s saying is, “I mean what I say, your administration can’t ignore it as you appear to have done with federal Judge James Boasberg, whose order you appear to have defied to return immigrants you deported. I’m going to do belt and suspenders and be very clear about this and not give you wiggle room because it is not an option for you to disobey the order of an Article 3 judge.”

OK, you’ve described Article 3. Tell us about articles 1 and 2.

Article 1 of the Constitution creates the United States Congress.

Article 2 creates the presidency and the executive branch. It’s somewhat light on details.

And Article 3, notably, creates the Supreme Court, but left it up to Congress to develop and create, as the article says, “such inferior courts.” I don’t love the word inferior; we tend to say “lower courts.”

Because of the caseload at the founding, the Supreme Court handled everything. The Supreme Court justices did what was called “riding the circuit.” They acted, in effect, as lower court federal judges, until business and commerce and the law burgeoned. Congress was then compelled to create district court judgeships and circuit court judgeships to relieve the Supreme Court of the burden of being everything to everybody in the federal courts.

That’s a helpful civics lesson.

I worked with Supreme Court Justice Sandra Day O’Connor, who had a real predilection for civics education. One of her comments always resonates for me, that civics is something that has to be learned and relearned because it’s not stamped on our DNA.

In a recent NBC story headlined ‘Some Republicans object to Trump’s move to cancel spending, warning of a shutdown,’ Sen. Kevin Cramer from North Dakota said he wants spending decided not by the president but by Congress in a bipartisan appropriations process. ‘I think that Congress has every right to defend its Article 1 role,’ he said.

Constitutionally and by custom, Congress has the power of the purse. The president can propose a budget, but it has to be passed by Congress. And it’s quite clear that, in this Trump administration, Congress is abdicating its Article 1 powers, being compliant and dormant in allowing the president to cancel otherwise-allocated funds repeatedly. If Congress would flex its muscles under Article 1, this wouldn’t be happening.

And back to Article 3 news: There’s been some charged back-and-forth between federal judges and two Supreme Court justices over criticism of lower court judges. And 10 federal judges criticized – anonymously – the Supreme Court’s handling of the Trump cases in the so-called ‘shadow docket’ because the rulings were so brief they couldn’t take direction from them. Is this all normal?

There’s rank frustration on the part of lower court judges. The Supreme Court is forcing lower court judges to decipher meaning from Supreme Court decisions as if they’re the Rosetta stone. They are so abbreviated and less than clear that it’s maddening. Having toiled in the lower courts, the worst situation you could have is a lack of guidance from higher courts, and then you have to guess. When you have to guess, you make mistakes, and that’s the frustration you see.

I think there is a duty on the U.S. Supreme Court to not rubber-stamp lower court judges, of course, but also to have some comity with lower court judges who are struggling through this plethora of cases that have arisen because of the Trump administration flooding the zone.

What does this conflict over courts and judges mean to the average person?

The integrity of our system of justice and the judicial system is based on the trust that people place in the jurists that populate that branch, the third branch of government. And as Alexander Hamilton said, the judiciary has neither the sword nor the purse, so it is the credibility of the judiciary that, at the end of the day, carries weight.

And when the president and highly ranked officials in his administration vilify lower court judges the way they have, and if the president says that he can pick and choose among lower court opinions, then I think you know, necessarily, his followers may think that they can do the same. That is not helpful to the rule of law and to our democracy. In fact, it tears at the fabric of our system.

John E. Jones III is affiliated with Keep Our Republic’s Article Three Coalition.

​Politics + Society – The Conversation

A federal judge ruled on Sept. 2, 2025, that the Trump administration broke federal law by sending National Guard troops to Los Angeles in June in response to protests over immigration raids.

In his ruling, U.S. District Judge Charles Breyer said that National Guard troops in Los Angeles had received improper training on the legal scope of their authority under federal law. He ruled that the president’s order for the troops to engage in “domestic military law enforcement” violated the Posse Comitatus Act, which – with limited exceptions – bars the use of the military in civilian law enforcement.

While he did not require the remaining soldiers to leave Los Angeles, Breyer called on the administration to refrain from using them “to execute laws.”

The Los Angeles case, President Donald Trump’s deployment of National Guard troops to fight crime in Washington, D.C., and his recent vow to send the Guard to Chicago and Baltimore to fight crime blur practical and philosophical lines erected in both law and longtime custom between the military and the police.

As a policing scholar and former FBI special agent, I believe the plan to continue using National Guard troops to reduce crime in cities such as Chicago and Baltimore violates the legal prohibition against domestic military law enforcement.

Limited law enforcement function

State and local police training focus on law enforcement and maintaining order. Community policing, which is a collaboration between police and
the community to solve problems, and the use-of-force continuum – the escalating series of appropriate actions an officer may take to resolve a situation – also form part of training.

In contrast, the goal of National Guard basic combat training is to “learn the skills it takes to become a Soldier.”

The initial 10-week training program for National Guard recruits includes learning skills such as the use of M16 military assault rifles and grenade launchers. It also includes learning guerrilla warfare tactics, as well as tactics for neutralizing improvised explosive devices while engaging in military operations. While valuable in a military setting, such activities aren’t part of domestic policing and law enforcement.

While the National Guard has, by law, a limited law enforcement function in times of domestic emergencies, it’s a unique part of the U.S. military that typically responds – at the request of a state’s governor – to natural disasters and extreme violence.

Although rare, presidents can also call up the Guard, with or without the assent of a state governor. In 1992, for example, President George H.W. Bush sent Guard troops to Los Angeles – with the California governor’s approval – to quell widespread riots following the acquittal of white police officers who had been charged with assaulting Rodney King, a Black man.

But sending soldiers who are not well versed in policing increases the likelihood of mistakes. One of the most well-known examples is the Kent State shootings on May 4, 1970, when National Guardsmen sent to the university by Ohio’s governor opened fire and killed four unarmed students during an anti-war protest on campus.

The erosion of restraint

U.S. presidents have historically exercised restraint in deploying military personnel to suppress domestic unrest. Presidents typically work with state governors who request federal assistance during times of crisis.

Thousands of National Guard troops were sent to multiple states at the request of state governors following Hurricane Sandy in 2012. Among other tasks, President Barack Obama’s administration directed the Department of Defense to support FEMA’s efforts to restore power to thousands of homes.

The last time a president bypassed a state’s governor in sending the National Guard to quell civil unrest was in Selma, Alabama, in 1965. President Lyndon B. Johnson deployed the National Guard to protect civil rights protesters without the cooperation of Alabama Gov. George Wallace, a prominent segregationist.

Trump is changing this precedent by sending National Guard troops to Los Angeles, despite the fact that Gov. Gavin Newsom neither refused to follow federal law nor requested military support. In June 2025, Trump overrode Newsom and sent Guard troops to shield federal agents with Immigration and Customs Enforcement from political protests.

The decision to send federal troops to a political protest in Los Angeles has raised core legal questions. The First Amendment’s protection of the right to political protest is a pillar of U.S. jurisprudence.

‘Federalizing’ the Guard

The governed have a right to hold the government accountable and ensure that the government’s power reflects the consent of the governed.

The right to protest, of course, does not extend to criminal behavior. But the use of military personnel raises a pressing question: Is the president justified in sending military personnel to address pockets of criminality, instead of relying on state or local police?

One of a president’s legal avenues is to use a federal statute to do what’s called “federalizing” the National Guard. This means troops are temporarily transitioned from state to federal military control.

What is unique about the deployment in California is that Newsom objected to Trump’s decision to federalize troops. California in June 2025 sued the Trump administration, arguing the president unlawfully bypassed the governor when he federalized the National Guard.

On Sept. 4, 2025, Washington, D.C., sued the Trump administration on similar grounds. The lawsuit follows Trump’s decision in August to deploy hundreds of National Guard troops to police the capital.

For the president to legally take control of and deploy the California National Guard under federal statutes, it was necessary for the criminality in Los Angeles to rise to a “rebellion” against the U.S.

More generally, the president is prohibited from using military force – including the Marines – against civilians in pursuit of normal law-enforcement goals. This bedrock principle is based on the Posse Comitatus Act of 1878 and permits only rare exceptions, as stipulated by the Insurrection Act of 1807. This act empowers the president to deploy the U.S. military to states in circumstances relating to the suppression of an insurrection.

The Sept. 2 ruling by the federal judge in California determined that the administration deviated from these principles because the use of troops in Los Angeles did not meet the criteria established by federal law. Although the political protests in Los Angeles included some violence, the judge reasoned that the violence did not rise to a rebellion and did not prevent a traditional police response.

Federalism and the limits of executive power

In addition to the practical differences between the military and the police, there are philosophical differences derived from core principles of federalism, which refers to the division of power between the national and state governments.

In the United States, police power is derived from the 10th Amendment, which gives states the rights and powers “not delegated to the United States.” It is the states that have the power to establish and enforce laws protecting the welfare, safety and health of the public.

The use of military personnel in domestic affairs is limited by deeply entrenched policy and legal frameworks.

The deployment of National Guard troops for routine crime fighting in cities such as Los Angeles and Washington, and the proposed deployment of those troops to Chicago and Baltimore, highlights the erosion of both practical and philosophical constraints on the president and the vast federal power the president wields.

The Institute for Humane Studies at George Mason University provides funding as a member of The Conversation US.

Luke William Hunt belongs to the Institute for Humane Studies at George Mason University, which provides funding to The Conversation U.S. as a supporting member.

​Politics + Society – The Conversation