How Should We Regulate Child Labor?

On March 6, Arkansas Governor Sarah Huckabee Sanders signed into law the Youth Hiring Act, a law that, among other things, allows children between the ages of nine and 16 to be hired without the need for an employment certificate to be filed with the state. Under previous state law, an employment certificate was required to be filed with the state providing proof of age, the work schedule and description, and the consent of the child’s parent or guardian.1 In the past few months, lawmakers in Iowa and Ohio have also proposed legislation that would reduce requirements for youth seeking work.2

READ: “The Good and the Bad of Iowa’s Bill That Would Bring Big Changes to Child Labor Laws,” from the Des Moines Register

READ: “Bill to Extend Working Hours for Ohio Teens Reintroduced by Lawmakers,” from News 5 Cleveland

Proponents of these bills believe that removing restrictions on child labor would encourage more young people to work and decrease the difficulty businesses have had hiring recently due to record-low unemployment rates. Some lawmakers, such as Iowa State Senator Lynn Evans, have cited the benefits of young people learning the value of work.3 In Arkansas, Governor Sanders provided rationale for removing the certificate requirements. Her spokesperson, Alexa Henning, shared that requiring parents to get permission for their child to work is an additional burden when businesses are required to follow child labor laws regardless of the certificate.4 Business interest groups, including the National Federation of Independent Businesses, have supported the Ohio bill.5

Opponents of these bills have cited statistics indicating that the wellness of young workers could be in jeopardy if they are scheduled for longer hours.6 Children may take on more work than they can handle in order to provide financial support for their families. Randy Zook, CEO of the Arkansas State Chamber of Commerce, voiced his opposition to the Arkansas bill. “The primary thing kids that age need to be focused on is graduating from high school,” he said. “We are afraid this will encourage kids who are under 16 to pursue more work time than school time.”7

These bills have worked their way through state legislatures at the same time that several eye-opening investigations into child labor practices have exposed egregious violations. In July 2022, Reuters published an investigation that documented children as young as 12 working at four Hyundai and Kia subsidiaries.8 On February 25, New York Times reporter Hannah Dreier released the findings of her investigation into the labor conditions of migrant children, interviewing more than 100 children in 20 states.9 Children interviewed included a 15-year-old Guatemalan girl who packages Cheerios, a ninth-grader working 14-hour shifts at a sawmill in South Dakota, and middle schoolers working in bakeries. These working conditions violate federal laws that limit the jobs children can work and the hours and times they can be scheduled.10 The New York Times and Reuters investigations point to a willingness of some businesses in manufacturing, construction, hospitality, and food processing, among others, to turn a blind eye to clear violations of the law and exploit those in vulnerable situations as evidence for increased restriction and oversight of child labor.

Child labor violations had been declining for years. Then, after 2015, they started creeping back up. On February 27, two days after the New York Times report, President Joe Biden’s administration unveiled several policies that will be implemented to address the nearly 70 percent rise in child labor violations that has taken place from 2018-2022.11 The plan includes the creation of a new task force, targeting industries that have a history of violations, and advocating for heavier penalties and more funding for oversight.12 Congressional Democrats largely support the White House proposal. Republicans, meanwhile, say the Department of Health and Human Services is to blame for the child labor crisis because the Biden administration has loosened regulations regarding the support of migrant children.13 One third of migrant children who have been recorded by HHS now cannot be reached by government officials.14

Meanwhile, some states, such as Nebraska, have renewed their support for child labor protections. On January 5, Nebraska State Senator Carol Blood proposed a resolution that would make Nebraska the 29th state to ratify the Child Labor Amendment of 1924, an amendment to the Constitution that, if passed, would specifically allow Congress to regulate the labor of minors.15

Discussion Questions

  1. What might be some of the benefits to loosening child labor laws? What might be the drawbacks?
  2. If the Department of Labor is successful in significantly reducing child labor violations, what might be the outcomes for young workers? For businesses?
  3. Which entity or entities have the most responsibility to regulate children in the workforce: the federal government, state and local governments, businesses, or parents?
  4. What policies, if any, do you think governments should enact in order to promote the best outcomes for youth and child workers?

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: Canva photo
[1] Newsweek:
[2] Vice:
[3] KICD:
[4] Newsweek:
[5] Axios Columbus:
[6] Ibid.
[7] Vice:
[8] Reuters:
[9] New York Times:
[10] Ibid.
[11] Reuters:
[12] Ibid.
[13] New York Times:
[14] New York Times:
[15] Nebraska Examiner:


Revisiting Jimmy Carter’s “Crisis of Confidence” Speech

On February 18, the Carter Center released a statement saying that former President Jimmy Carter had opted to spend “his remaining time at home” following a number of hospital stays and declining health.1 News of the 98-year-old former president’s condition has brought an outpouring of support and renewed attention to his life and legacy as the 39th president of the United States. President Carter’s “Crisis of Confidence” speech is perhaps his most famous, and its words are still relevant for our country today.2

President Carter delivered this speech, often referred to as his “Malaise Speech,” on July 15, 1979, while the country was in the midst of an energy crisis.3 After spending several days listening to the concerns of everyday Americans, he concluded that America as a whole suffered from what he called a “crisis of confidence.” This, he said, was a “fundamental threat to American democracy.”4

The threat is nearly invisible in ordinary ways. It is a crisis of confidence. It is a crisis that strikes at the very heart and soul and spirit of our national will. We can see this crisis in the growing doubt about the meaning of our own lives and in the loss of a unity of purpose for our nation. The erosion of our confidence in the future is threatening to destroy the social and the political fabric of America.5

President Carter went on to explain that people had lost faith in their government, in each other, and in their own abilities as citizens to shape their democracy. He recognized the disconnect between the federal government and everyday communities. People felt like their government was not working for them. They grew tired of inaction, inefficiency, partisanship, and the unwillingness of elected officials to compromise for the sake of the common good. Americans, in his eyes, were skeptical of the future and doubted the progress we had made as a nation.

For the first time in the history of our country, a majority of our people believe that the next five years will be worse than the past five years. Two-thirds of our people do not even vote. The productivity of American workers is actually dropping, and the willingness of Americans to save for the future has fallen below that of all other people in the Western world.6

These problems persist in our current political climate. According to a recent NBC News poll from the summer of 2022, three quarters of voters said that the country is “headed in the wrong direction,” with 58 percent also adding that “America’s best years are behind it.”7 And although the 2020 election saw record voter turnout, one third of eligible voters still did not vote.8 Trust in government has been eroding for decades. A May 2022 Pew Research poll found that only 20 percent of Americans believed they could trust the government to do what is right “always or most of the time.”9 This is down from 30 percent who said the same at the time of President Carter’s speech.10

Though the main focus of President Carter’s speech was the energy crisis, he was speaking to a country that had experienced political shock and cynicism. It had seen the assassinations of political and civil rights leaders. It had grown disillusioned with the Vietnam War. There was a widespread feeling of distrust in government institutions and elected officials post-Watergate, and people were hurting financially due to stagflation (high inflation, high unemployment, and slow economic growth).

Americans today face their own similar and unique challenges: the COVID-19 pandemic, climate change, high inflation, misinformation, and issues of civil rights and racial justice, among others. Lies about the legitimacy of elections led to an attack on the Capitol and continue to saturate our national discourse. Hyperpartisanship has distorted the way we see each other, and a breakdown in basic levels of decency among individuals and political leaders has furthered the divide between “us” and “them.”

President Carter urged Americans to trust in each other and once again find common purpose in order to overcome this ongoing crisis. To reunite the country, it was imperative to restore our “American values.”11 This would take time and effort on behalf of all of us. “Little by little we can and we must rebuild our confidence. We can spend until we empty our treasuries, and we may summon all the wonders of science,” he concluded. “But we can succeed only if we tap our greatest resources—America’s people, America’s values, and America’s confidence.”12

Discussion Questions

  1. What do you think are the three biggest challenges we currently face as a country?
  2. President Carter saw a “loss of a unity of purpose for our nation.” In what ways are Americans divided or at odds with each other today?
  3. Why might people feel discouraged or disappointed in their government?
  4. Do you agree or disagree with the statement that America’s best days are behind it? Why?
  5. Do you think that we face a crisis of confidence today?
  6. On a scale of 1–5 (with 1 being very low and 5 being very high), how would you rate your confidence in the federal government? Your state or local government?
  7. President Carter believed that Americans needed to “have faith in each other, faith in our ability to govern ourselves, and faith in the future of this nation.” How can we increase our faith in each other? What should we do in order to be more effective citizens?

Other Resources

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: Photo Illustration by Slate
[1] Carter Center:
[2] New York Times:
[3] Ibid.
[4] PBS:
[5] Ibid.
[6] Ibid.
[7] NBC News:
[8] Census Bureau:,by%20the%20U.S.%20Census%20Bureau.
[9] Pew Research:
[10] Ibid.
[11] PBS:
[12] Ibid.


What Do “Defund the Police” and “Police Abolition” Mean? And What Do They Not Mean?

Jerry Jackson/Baltimore SunFollowing the 2020 murder of George Floyd by Minneapolis police officer Derek Chauvin, a call by activists to “defund the police” achieved national attention. Supporters of defunding the police have argued that—at least some of—the billions of dollars spent on policing each year could be better used by investing in educational, recreational, and mental health programs, among others, in an effort to reduce crime and increase community well-being more generally. With the release of footage showing multiple officers pepper-spraying, kicking, and punching Tyre Nichols—leading to his death three days later—questions of whether and how to reduce police budgets have been brought back into the national conversation.1

In order to understand this issue, it is important to define what defunding the police means and what it doesn’t mean. Responding to the deaths of five Dallas police officers in a 2016 mass shooting, Dallas Police Chief David Brown said, “We’re asking cops to do too much in this country. … Every societal failure, we put it off on the cops to solve. Not enough mental health funding, let the cops handle it. …Here in Dallas we got a loose dog problem; let’s have the cops chase loose dogs. Schools fail, let’s give it to the cops. … That’s too much to ask. Policing was never meant to solve all those problems.”2

Image Credit: Neal Skorpen/Mud CompanyThis is what many activists mean when they call for the police to be defunded. Reduce the number of responsibilities we ask of the police, decrease police budgets to match the reduced size of the police force, and use the diverted funds to invest in programs and staff who are trained to address mental health crises, struggling schools, and other social issues.

“Defund the police” does not mean “abolish the police.” It means police would have a more limited, primarily peacekeeping role. But they would not be asked to take on other roles, like those mentioned by Chief Brown.

Defunding the police is not a brand-new movement. Activists have been calling to defund the police for nearly a decade—since at least 2014, following the death of Michael Brown at the hands of police in Ferguson, Missouri—but the slogan caught on much more broadly in 2020, even being echoed by some progressive members of Congress.3 While many Democratic Party leaders worried that the slogan was “divisive,” members of the so-called “Squad,” including Representatives Alexandria Ocasio-Cortez (D-N.Y.), Ilhan Omar (D-Minn.), and Rashida Tlaib (D-Mich.), expressed support for defunding the police. They were clear that they did not want only to cut police funding, but to redirect those taxpayer dollars into other social services.4

The movement to defund the police has also garnered opposition. Opponents of the idea believe it is unwise to call for reducing the size and budgets of police forces when crime has risen in some parts of the country in recent years. Opponents argue that such a policy could actually encourage crime by reducing the capacity of police forces. As Jacqueline Helfgott, a professor of criminal justice at Seattle University, wrote, “If we defund the police, those most affected will be the poor and the marginalized. Wealthy neighborhoods will hire private security as they are already doing, and poorer neighborhoods will have to fend for themselves even more than they already have to. Delays in police response and lack of police capacity will increase fear of crime, render victims of crime helpless, and wreak havoc on communities, especially communities of color, even more so than is already the case.”5

Other political activists and commentators want to go beyond merely reducing the budgets and responsibilities of law enforcement and “abolish the police.” In an interview following Nichols’ death, police abolitionist Andrea Ritchie called for police to be phased out completely, beginning with limiting their authority to conduct certain actions, starting with traffic stops. “[I]t would require a complete restructuring of the society that we live in,” she said. “It would require us to shift our priorities from responding to every form of need, conflict, and harm with agents of violence. … And so, it does require a radical reimagination of what we understand safety to be.”6 Ritchie and other police abolitionists make the case that “safety is not produced primarily through force,” and therefore, “police don’t make us safer.”7

WATCH: “Howard Prof. Justin Hansford & Abolitionist Andrea Ritchie on Tyre Nichols & Calls for No More Police,” from Democracy Now!

Abolitionist scholars have argued that the over-policing of Americans—disproportionately low-income people of color—has led to “the systematic mass incarceration of people of color in the United States,” most directly through the War on Drugs.8 Alex Vitale explains that, as a response to the War on Drugs, the Los Angeles Police Department “developed specialized antigang units first known as TRASH (Total Resources Against Street Hoodlums) and later sanitized [renamed] CRASH (Community Resources Against Street Hoodlums)” in the 1970s.9 These specialized police teams became the model for later elite forces, such as the Memphis Police Department’s SCORPION Unit (Street Crimes Operation to Restore Peace in Our Neighborhoods), five members of which have now been charged with the murder of Nichols.10

READ: “To Produce Safety, We Must Understand What Drives Violence,” from Common Justice

With another high-profile police killing of an unarmed Black man, Americans are once again reconsidering what safety looks like and how police fit into that picture.

Discussion Questions

  1. What does policing look like in your community?
  2. How does your community feel about the police? Do most people you know trust or distrust the police?
  3. What are some ways to reduce crime that do not involve law enforcement?
  4. What do you think about the activists’ call to defund the police? Why?
  5. What do you think about abolishing the police? Why?

Possible Extension Activities

  1. Have students research which cities have embraced defunding the police/abolishing the police policies and compare police budgets in those cities before and after 2020.
  2. Ask students to compare the BREATHE Act and the George Floyd Justice in Policing Act. How are they similar? Different? Would students amend either or both? How?
  3. If students are interested in going further, they can research police budgets and crime rates and consider if there is a clear correlation between increases in law enforcement spending and decreases in crime.

Further Reading

  • Mariame Kaba. We Do This ‘Til We Free Us: Abolitionist Organizing and Transforming Justice. Haymarket Books, 2021.
  • Mariame Kaba and Andrea J. Ritchie. No More Police: A Case for Abolition. The New Press, 2022.
  • Danielle Sered. Until We Reckon: Violence, Mass Incarceration, and a Road to Repair. The New Press, 2021
  • Alex S. Vitale. The End of Policing. Verso, 2017.
  • Michelle Alexander. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The New Press, 2010.

Related Posts

Protests, Police Reform, and Civil Unrest

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: Jerry Jackson/Baltimore Sun
[1] BBC News:
[2] Washington Post
[3] Mariame Kaba and Andrea J. Ritchie. No More Police: A Case for Abolition. The New Press, 2022.
[4] Newsweek
[5] Seattle Times:
[6] Andrea Ritchie. Interview Conducted by Amy Goodman for Democracy Now!:
[7] Common Justice:; No More Police.
[8] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The New Press. 2010.
[9] Alex S. Vitale. The End of Policing. Verso. 2017.
[10] New York Times:


CEO Compensation: An Issue of Fairness or Evidence of a Functioning Free Market?

There is currently a bill in Congress, S.794 –  Tax Excessive CEO Pay Act of 2021, that would increase taxes on companies on the basis of their CEO-to-worker compensation ratio. The legislation, introduced by Senator Bernie Sanders (I-Vt.) and cosponsored by a host of Democrats including Senator Elizabeth Warren (D-Mass.), has progressed to the Senate Committee on Finance but faces an extremely polarized Congress.

In the proposal, a ratio is ascribed to a company by dividing the CEO’s compensation by that of the median employee.1 The tax hike proposed in the bill is gradually increased in proportion to the ratio, starting with a 0.5 percentage point increase for companies that pay their chief executive between 50 to 100 times more than their median worker. The highest tax applied is a five percentage point increase for corporations in which the CEO makes more than 500 times the typical employee. These percentage points would be added to the current corporate income tax rate of 21 percent.1

Compensation ratios vary greatly depending on specific organizations. Coca-Cola’s ratio, for example, is on the high end of the spectrum at 1,621 to 1.2. Of the top 1,000 firms, around 80 percent would be subject to higher taxes because of pay disparity.2 However, compensation can sometimes be difficult to calculate, with many CEOs receiving stock options and other forms of payment. Using data from the top 350 firms, the Economic Policy Institute (EPI) found the CEO-to-worker pay ratio to be 399 to 1 in 2021.3 This is an increase from 20 to 1 in 1965 and 58 to 1 in 1989.4 Some scholars credit this trend as contributing to growing wealth inequality in the United States. The EPI study found that from 1978 to 2019, CEO compensation expanded by 940 percent while median worker compensation grew by only 12 percent.3 The nearby chart illustrates the incongruent growth.

Arguments for the Tax Excessive CEO Pay Act

Arguing in support of the legislation, Senator Warren said, “We need to take dramatic steps to address wealth inequality in this country and discouraging massive executive payouts is a good place to start.” She added, “Corporate executives have padded their pockets while American workers, who helped generate record corporate profits, have hardly seen their wages budge.” Senator Sanders also views the current CEO-worker dynamic as inequitable and believes it is time for corporations to “pay their fair share.”5

Others argue that even if the tax does not incentivize companies to lessen the gap between CEO and worker compensation, the tax could still generate revenue that could be reinvested. A similar, but less extensive, tax in Portland, Oregon, generated $5.2 million in 2019. On a federal scale, the revenue could be used to tackle any number of issues facing America.

Arguments Against the Tax Excessive CEO Pay Act

Opponents argue that in cities like Portland that have experimented with similar taxes, the policy has not led to a dramatic lessening of CEO compensation.6 In fact, detractors insist that instead of reducing CEO pay, the policy would lead corporations to pass this new tax burden onto workers (in the form of lower wages) and consumers (in the form of higher prices).7 This ultimately hurts lower-income individuals the most.8 Others argue that the bill would disproportionately harm specific sectors of the economy. Industries such as retail and fast food tend to rely on lower-skilled labor and could be affected more than specialized industries. Opponents worry that this disproportionate targeting could disrupt the fair and normal functioning of the economy and the global competitiveness of U.S. companies.

Discussion Questions

  1. Is wealth inequality an important issue for Congress to act on? Is it an important issue in your community?
  2. Is CEO-to-worker compensation in the United States a national issue the federal government should be involved in? Why or why not?
  3. Is the proposed legislation an effective method for reducing the disparities in CEO-to-worker compensation? Would you propose a different approach?
  4. What economic effects might the legislation produce?

Related Posts

Addressing Economic Inequality: Elizabeth Warren’s Wealth Tax Proposal

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: Jose Luis Magana/AP


Mishandling Classified Information

The handling of sensitive information has become a headline-grabbing issue in recent months owed to the discovery of classified documents at the homes and offices of former President Donald Trump, President Joe Biden, and former Vice President Mike Pence. The political consequences of any judgment of wrongdoing on behalf of former President Trump, President Biden, and/or former Vice President Pence have introduced significant controversy into the national discussion of this issue. In light of this controversy, Attorney General Merrick Garland has established a special prosecutor for the Trump and Biden cases, who will work independently of the Department of Justice to determine whether any criminal conduct took place. Although a special prosecutor has not yet been appointed to investigate the Pence case, many experts see this as highly likely.1

What Are the Government Rules for Classified Material?

According to the President Records Act of 1978, former presidents and vice presidents have the responsibility to surrender all records into the legal custody of the National Archives. (It is important to note that the documents in question in the Biden case stem from his time as vice president, 2009-2017, and not from his current term as president.) Sometimes, documents are found to be missing by the National Archives; the Archives will then request the documents’ return within a certain timeframe.2 When this is properly done, there is usually no need for investigation.

Separate from executive branch records are classified documents and materials. Information is designated as classified when it has been determined that its release could represent an immediate threat to the national security of the United States. Classified materials range in the level of security clearance necessary to view and handle them, ranging from the lowest, “confidential,” to “secret,” to the highest level, “top secret.” All classified material is clearly marked and labeled with its security clearance level. Key to understanding the controversy in the Trump, Biden, and Pence cases is that no individual, regardless of security clearance or the office they hold, is permitted to hold classified material at a private residence.3

What Are the Trump, Biden, and Pence Cases?

On May 6, 2021, the National Archives requested that former President Trump return missing documents from his time in office. After multiple requests were made, a Trump representative told the National Archives in December 2021 they had located 12 boxes of materials at former President Trump’s Mar-a-Lago residence, which the National Archives then arranged to be returned (15 boxes were ultimately picked up by National Archives officials). These boxes contained both presidential records and 184 classified documents. There were still missing materials after this process was completed. The materials were referred to the FBI for further investigation. Over the course of the summer of 2022, the FBI continued its investigation and obtained a warrant to search former President Trump’s residence and home office. An additional 13 boxes containing over 100 classified materials were recovered.4 A special prosecutor was appointed on November 18, 2022, to conduct an investigation of criminal activity, which remains ongoing.5

Many Republicans accused the investigation of being politically motivated, part of an effort by the Biden administration to discredit Trump’s 2024 presidential campaign.6 President Biden and his administration were highly critical of former President Trump’s alleged lack of cooperation with the National Archives’ requests and his handling of classified material.7 However, on November 2, 2022, ten classified documents were discovered in President Biden’s former office at the Penn Biden Center in Washington, D.C., and reported to the National Archives.8 President Biden’s lawyers began a review of his personal records and discovered more classified materials. On December 20, a second set of classified documents was discovered in the garage of the president’s private residence in Wilmington, Delaware. Additional classified materials were found in an adjacent room on January 14, 2023.9 Thus far, approximately 20 classified documents have been recovered from President Biden’s office and home.10 A special prosecutor was appointed to investigate the case on January 13, 2023.

On January 16, 2023, former Vice President Pence instructed his lawyers to review his own documents for classified materials. A “small number of documents that could potentially contain sensitive or classified information” were discovered and given to FBI agents on January 19. Four boxes of documents containing “copies of Administrative papers” from Pence’s residence were brought to the attention of the National Archives by Pence’s lawyer and delivered to the Archives on January 23.11

The Special Prosecutor Controversy

Attorney General Garland argues that he appointed special prosecutors in the Trump and Biden cases in accordance with the rule of law, saying, “We do not have different rules for Democrats or Republicans.”12 Some Democrats have criticized Garland’s decision for equating the Trump and Biden cases by appointing a special prosecutor. They argue that the far greater number of documents discovered in the Trump case, along with the former president’s failure to cooperate with records requests, represents a much higher likelihood of criminal activity than the Biden case. However, at least part of Garland’s decision-making has been tied to the fact that both Trump and Biden are likely presidential candidates in 2024 (Trump has officially announced his campaign, Biden has yet to do so).13

With revelations of classified materials and records being discovered at former Vice President Pence’s residence, questions have emerged about whether Attorney General Garland will appoint a third special prosecutor to investigate given speculation that Pence is also interested in running for president in 2024. At the same time, Garland has begun to receive criticism from both Democrats and Republicans that an overreliance on special prosecutors undermines the Department of Justice’s authority and raises questions as to how well the Department can be relied on to carry out its responsibilities on its own.14

Discussion Questions

  1. How would you compare the seriousness of the Trump, Biden, and Pence cases?
  2. Do you agree with Attorney General Garland’s reasoning that the Trump and Biden cases deserve the same level of scrutiny? Or do you feel one case is more deserving of a special prosecutor’s investigation than the other?
  3. These cases are not the first time that improperly secured classified information has weighed into a presidential race. Famously, former Secretary of State Hillary Clinton faced an investigation into her handling of classified information on a private internet server in her home during her campaign for president in 2016. Ultimately, FBI Director James Comey publicly acknowledged fault on the part of Secretary Clinton but declined to recommend prosecution largely due to the absence of clear intent to improperly handle the information. Do you feel the same reasoning could or should apply to the Trump, Biden, and/or Pence cases?

Related Posts

Executive Privilege and the Supreme Court

Summer Roundup: Back to School with the Supreme Court, the Midterms, and the Search of Mar-a-Lago

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: Anonymous/Associated Press


C-SPAN Cameras on the House Floor

When the 118th Congress convened on January 3, what is usually a quick procedural vote for speaker turned into a contentious five days of voting on the floor of the House of Representatives.1 The frustrations, negotiations, and heated debates were on display on C-SPAN. Since the House could not adopt rules without a speaker—members-elect could not even take their oaths of office—C-SPAN cameras had a period of unprecedented access to roam the chamber, using three cameras to broadcast the proceedings without the usual constraints of House rules.

C-SPAN’s videos went viral online and gave viewers a previously unseen look at what happens on the House floor. Cameras captured raw reactions, candid conversations, and revealing body language, along with tension, humor, and boredom. We saw Representative George Santos, R-N.Y., alienated by his peers in the wake of reports that he fabricated his biography.2 Representatives Alexandria Ocasio-Cortez, D-N.Y., and Paul Gosar, R-Ariz., polar opposites on the political spectrum who share a hostile relationship, were engaged in a friendly conversation.3 And Representative Mike Rogers, R-Ala., had to be forcibly held back during confrontation with several of his colleagues.4 These were scenes rarely seen outside the chamber, as they occurred out of frame of the cameras traditionally used in the House.

Representative Mark Pocan, D-Wis., said C-SPAN’s coverage was “worthy of an Oscar.”5 Comedian Jon Stewart called it “the best season … ever.”6 Now that Representative Kevin McCarthy, R-Calif., has been elected speaker and the House has adopted its rules, C-SPAN’s cameras are no longer allowed in the chamber.7 So, should C-SPAN cameras be allowed greater access to the House floor?

Cameras in the House of Representatives

The Cable-Satellite Public Affairs Network (C-SPAN) was created in 1979 as a nonprofit public service from cable providers in cooperation with Congress. This marked the first time cameras were installed in the House and video was regularly broadcast. Previously, cameras were only occasionally allowed in the House for special occasions, the first live broadcast being the start of the 80th Congress on January 3, 1947.8

C-SPAN offers 24-hour programming and covers both chambers of Congress, namely their public committees, floor debates, and final votes. It aims to “promote open and transparent dialogue between the public and their elected and appointed officials—and those campaigning for office.”9 C-SPAN also covers the executive and judicial branches, though it does not have access to the Supreme Court chamber.

Although C-SPAN taps into the House feed and broadcasts it nationally, it does not control the cameras used to shoot the footage. Those are owned and operated by the federal government. According to House rules from when cameras were first installed, they are restricted to “head-on shots of members at the podium and committee tables and they are prohibited from taking reaction shots or shots of the chamber.”10

Two angles typically broadcast by C-SPAN from government-operated cameras: a wide shot showing the full speaker’s dais and a medium shot of a representative delivering a speech.

Additional cameras from C-SPAN and the press pool (ABC, CBS, NBC, CNN, and Fox) are allowed on the floor only for major events like the State of the Union and joint sessions of Congress.11 They are, however, routinely allowed outside the chamber—throughout the Capitol building, on the grounds outside, and nearby in congressional office buildings.

Resolutions and Requests for Greater Access

Representative Pocan introduced the Leave the Cameras On Resolution, calling on the House to allow C-SPAN to operate its own cameras and film freely within the chamber, just as it did that first week of January.12 The resolution has been cosponsored by more than 20 House Democrats.13 “If this truly is the People’s House, Americans deserve to see the inside of that House,” said Representative Pocan. “There’s nothing wrong with more transparency and sunlight. This change will hopefully encourage more Americans to be interested in government and embolden some to even run for elected office.”14

A similar amendment to the rules was introduced by Representative Matt Gaetz, R-Fla., who was one of 21 House Republicans whose objections to McCarthy drew out the speaker vote. “Last week, America watched in real time how our government is functioning,” said Representative Gaetz. “Broader transparency in Congress is a net positive, and we need more of it.”15 His amendment would allow at least four C-SPAN cameras in the chamber, updating what he calls the “antiquated and a little boomer-fied” camera angles that have not changed in decades.16

Representative Chip Roy, R-Texas, praised how the cameras showed the “inner workings” of government and provided a “good thing for our democracy.”17 Supporters like him argue that viewers gain invaluable insight from coverage that highlights bipartisanship and relationship-building—key tenets of Congress’ work. Elected officials would also be held accountable for what they do and how they interact with each other, as their actions would be visible to the public eye.

READ C-SPAN’s letter to Speaker McCarthy: “Request for Ongoing Access to House Chamber”

C-SPAN has previously asked Democratic and Republican speakers of the House for greater access to the House floor, but its requests have been rejected.18 Robin Newton, a spokesperson for C-SPAN, drew upon the compelling coverage of the speakership to make the case for broader access. “Allowing C-SPAN into the House chamber allowed Americans to get a better understanding of how Congress operates, learning from different, rarely-seen camera angles,” she said. “We certainly hope to gain greater access to at least key legislative proceedings.”19 Similar request have also been made to Senate leadership.

Are More Cameras Actually Needed?

Critics say that additional cameras are not needed, as there is already an abundance of congressional coverage, both inside and outside the chambers. Would more cameras actually draw in more viewers? More cameras do not necessarily mean more content, or even more care for what is being streamed.

Right now, the only cameras within the House are owned and operated by the federal government. If C-SPAN is permitted their own cameras, would other news organizations be allowed the same privilege? What would the criteria be for determining who is granted access? Could the next Democratic speaker allow MSNBC exclusive access or a Republican speaker allow only Fox News in the chamber?

In showing Congress “behind the scenes,” viewers would get a glimpse of the mundane and unflattering sides of government. Lawmakers could be seen having private conversations, yawning, or texting on their phones in the background. There is concern that these types of “gotcha!” moments could be manipulated and disseminated to make someone look bad and serve a political purpose.

There is also the question of how representatives would react to constantly being on camera. Would it lead to better behavior or more disruptions and disorder? Members might turn to stunts and spectacles to play to a base audience, gain attention, and go viral online for attention or fundraising. A push for greater transparency could even backfire and lead to more secrecy if members decide to conduct their business—deals, negotiations, and conversations—in more private settings away from camera lenses.

Although action has yet to be taken on these resolutions and requests, a spokesperson for Speaker McCarthy said he is “exploring a number of options to open up the People’s House to ensure a more transparent and accessible Congress for the American people.”20

Discussion Questions

  1. Do you think the House should allow C-SPAN greater camera access on the chamber floor? What about the Senate?
  2. What are the most convincing reasons for and against this proposed change?
  3. Have you followed any of C-SPAN’s congressional coverage on television, radio, or online?
  4. Have you followed any of your local government proceedings (such as city council meetings, candidate forums, or school board meetings) on television, radio, or online?
  5. There is bipartisan consensus that transparency is “good for democracy.”21 Besides increasing camera access, what changes or reforms do you think Congress could institute in order to increase transparency and build trust with constituents?

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: C-SPAN / WVXU
[1] CNN:
[2] Newsweek:
[3] Aaron Rupar via Twitter:
[4] New York Times:
[5] Representative Mark Pocan via Twitter:
[6] Jon Stewart via Twitter:
[7] U.S. Congress:
[8] House of Representatives:
[9] C-SPAN:
[10] C-SPAN:
[11] C-SPAN:
[12] Website of Representative Mark Pocan:
[13] Website of Representative Mark Pocan:
[14] Website of Representative Mark Pocan:
[15] Miami New Times:
[16] Fox News:
[17] The Hill:
[18] C-SPAN:
[19] Yahoo Finance:
[20] Deadline:
[21] The Hill:


A New Rule Results in Cost-Of-Living Reimbursement for House Members

An under-the-radar rule change proposed by Democrats in the House of Representatives in the waning days of 117th Congress could potentially increase members’ yearly compensation. The provision, approved by the House Administration Committee, would allow reimbursement for a number of living expenses, including lodging, food, and travel in Washington, D.C.

How Much Do Members of Congress Get Paid? How Is this Salary Determined?

Since 2009, the annual salary of a member of Congress is $174,000. Due to the additional responsibilities tied to their jobs, members in congressional leadership positions receive a higher salary. The speaker of the House receives $223,500 annually, and the Senate president pro tempore (the second-highest-ranking official in the Senate) receives $193,400.1 These salaries are determined by provisions in laws, most recently the Ethics Reform Act of 1989. The Bureau of Labor Statistics determines year-to-year salary increases. However, Congress has consistently voted down these specific increases, staving off potential political backlash from taxpayers for over a decade.

What Does This Compensation Change Mean? How Was the Decision Made?

Last week, members and staffers were notified via email of the change first proposed by the bipartisan House Select Committee on the Modernization of Congress. The rule was passed unanimously by the committee in December 2022. However, this type of action is not subject to debate on the House floor and was only included in a narrowly publicized final report. According to the New York Times, individual members could be reimbursed up to about $34,000 this year. If each of the 440 current members and delegates requested the maximum amount allowed by the rule change, the costs would total about $15.1 million.2

Why Was This Decision Made? What Is the Potential Impact?

The report justified the compensation change, stating: “Unlike their counterparts in the executive branch and private sector, members do not receive a per diem or reimbursement for their out-of-pocket living expenses when they are at work in Washington.”3 The report conceded that $174,000 is far beyond the average American income, but it included the defense that members must maintain homes in Washington, D.C., as well as in their local districts.

During a 2022 committee hearing, former Representative Gregg Harper, R-Miss., testified that he had to end his congressional service because he could not afford to serve and provide care for his son, who had a rare medical condition.4 Although this is a single experience, it does echo a growing salary issue for rank-and-file members of Congress. Washington, D.C., boasts some of the highest cost of living in the nation. As of January 2023, the average cost of rent for a studio apartment is upwards of $2,300.5

Supporters of the plan argue that it would broaden who could afford to serve in an elected position in Congress. In an effort to address growing costs and provide a living wage to Capitol Hill staffers, $35 million was added to members’ annual office budget. However, any costs that members incur under this new rule would be taken from that budget and, possibly, the pockets of congressional staff.

In an interview with the Washington Examiner, former Representative Mo Brooks, R-Ala., was critical of the new rule giving House representatives cost-of-living pay. ”You can have a reasonable public policy debate on whether congressmen should be paid more or less. … It’s the people’s money. It’s the people’s business,” he said. “Any pay raise or improvement and compensation package ought to be done in the public arena. And this one was not.”6

Discussion Questions

  1. Do you agree with the compensation rule change? Why or why not?
  2. What are the arguments for reimbursement? Why do you think they are valid or invalid?
  3. Do you believe that congressional members are compensated fairly for their service? Why or why not?
  4. Do you believe that salary transparency is important for those who serve in elected positions? Explain your answer.

As always, we encourage you to join the discussion with your comments or questions below.


Featured Image Credit: AP Photo/Alex Brandon
[1] Congressional Institute:
[2] New York Times:
[3] Final Report of the Select Committee on the Modernization of Congress:
[4] Pathways to Congressional Service:
[6] Washington Examiner:


The Supreme Court Weighs the First Amendment and Minority Rights

The case of a Christian website designer from Colorado who opposes same-sex marriage reached the Supreme Court on December 5. Because the Court said it would only address freedom of speech issues, the hearing pitted concerns over discrimination against freedom of artistic expression.1

Why Did This Case Reach the Supreme Court?

Lorie Smith wants to expand her web design business (303 Creative LLC) to include wedding websites, which she says she has dreamed of doing since childhood.2 Smith has religious objections to same-sex marriage and wants to post that message on her website, but doing that would likely violate the Colorado Anti-Discrimination Act. That law prohibits businesses open to the public from discriminating against customers on the basis of legally protected characteristics (in this case, sexual orientation) or communicating that such groups of people are unwelcome.3

Smith says that she has LGBTQ-identifying clients and would “happily” design graphics for their other endeavors, but creating their custom-made wedding websites would imply her approval of their marriage.4 Smith considers her artwork a form of speech, explaining, “It matters not to me how an individual identifies. What’s important to me is what message is I’m being asked to create and design for. And those messages must be consistent with my convictions.”5

Colorado argues that its law looks only at sales, not speech, to prevent marketplace discrimination, consistent with a longstanding legal tradition of ensuring public accommodations for all groups of people.6 Colorado argues that many businesses could claim their work is creative, and thus “speech,” thereby excusing discriminatory treatment.7 According to the state’s lawyer, “Your product can be a book or a painting, but once you make your product you can’t discriminate against certain customers based on who they are.”8

Lower courts have ruled for Colorado, citing “dignity interests” of members of marginalized groups.9 Many observers point to similarities between Smith’s case and the 2018 case of a baker (represented by Smith’s same lawyers) who claimed free speech and religious exercise should allow him to avoid serving same-sex couples.10 Then, the Supreme Court did not address freedom of speech and reaffirmed a precedent that prevents business owners from denying services due to religious objections.11 In 2021, the Court chose not to hear a similar objection from a florist who declined service for a same-sex wedding.12

What Arguments Shaped the Supreme Court Hearing?

The lengthy hearing considered whether Colorado’s law compels an artist to speak or stay silent, in violation of Free Speech rights.13 To address that question, the justices posited numerous hypothetical situations—a common tactic used to make a point or consider implications the specific case might have for other laws.14 Justice Amy Coney Barrett asked if Smith would design a website for a heterosexual couple marrying after divorcing previous spouses.15 In Justice Barrett’s words, “It’s about the message and not about the sexuality of the couple that asked her to express it.”16

Justice Ketanji Brown Jackson offered a hypothetical asking if a mall photographer who wanted to take “nostalgia photographs” of children with Santa evoking the 1950s could enact a policy “that only white children can be photographed with Santa.”17 Smith’s lawyer indicated that it would depend if the objection related to the speech or to the person’s demographics, noting, “When there is an overlap between message and status, message does win.”18 The lawyer also said, “There are difficult lines to draw, and that may be an edge case.”19 When Justice Samuel Alito expanded on the hypothetical, asking if a Black Santa would have to take a photo with a child in a Ku Klux Klan outfit, Colorado’s lawyer said no, since the clothing is not a protected characteristic.20 When Justice Elena Kagan pointed out that in this case, the child’s race would not matter, Justice Alito joked about Black children in KKK outfits (this and other comments have drawn public backlash).21

Justice Sonia Sotomayor argued that the message was the couple’s “story,” but Justice Neil Gorsuch likened it to a freelance writer who declines to work for clients of a different faith.22 Justice Kagan noted that denying a same-sex couple a standard website would be different than refusing to create one saying “God blesses this union,” and Colorado’s lawyer agreed that such “direct speech” is “trickier.”23

The hearing also considered how sweeping an exemption would be. Justice Clarence Thomas observed, “This is not a hotel. This is not a restaurant. This is not a riverboat or a train.”24 Considering whether caterers or chair vendors could claim a speech exemption, Smith’s lawyer argued that “art is different.”25 Justice Sotomayor wondered who else could be denied service, asking, “How about people who don’t believe in interracial marriage? Or about people who don’t believe that disabled people should get married? Where’s the line?”26 Smith’s lawyer called the scenario “highly unlikely” and said, “The line is that no one on any side of any debate has to be compelled to express a message that violates their core convictions.”27

Regarding broader implications, Justice Sotomayor said, “This would be the first time in the Court’s history that it would say that a commercial business, open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation.”28 The lawyer for President Joe Biden’s administration warned that a ruling for Smith could allow a private school to exclude children on the basis of race by saying their teaching message changes when delivered “to students of a different race.”29 By contrast, Chief Justice John Roberts noted that the Supreme Court has never approved efforts to compel speech that is contrary to the speaker’s belief.30

What May Happen Next?

Many Supreme Court observers anticipate a ruling in favor of Smith.31 According to Notre Dame Law School professor Rick Garnett, justices spent the hearing asking about lines and limits when public accommodations laws tangle with First Amendment rights.32 The Court will provide its answer by July 2023.33

Discussion Questions

  1. During the hearing, Justice Brett Kavanaugh said, “The case comes down to a fairly narrow question of, how do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors, or are they more like the publishing houses and the other free speech analogues that are raised on the other side?”34
    1. Do you think a restaurant, jeweler, tailor, florist, or caterer’s work is creative enough to represent their freedom of expression? Why or why not?
    2. Do you think a restaurant, jeweler, tailor, florist, or caterer should be able to deny service on the basis of sexual orientation because of their religious beliefs? Why or why not?
    3. Do you think a website designer’s work is so creative that it represents their free speech? Why or why not?
  2. Imagine a custom-made Smith wedding website that includes photos, stories, and details about wedding event times and places. Which of this website content, if any, is Smith’s speech and which, if any, is her clients’ speech? Why?
  3. Do you think a freelance writer should be able to deny service to someone on the basis of their political viewpoint? Why? Do you think that writer can deny service to a group of people on the basis of race or sexual orientation? Why or why not?
  4. People supporting Smith worry that ruling against her would mean that other Christian and religious business owners will not be able to open businesses without having to violate their speech and/or religious beliefs by serving clients whose viewpoints or identities they oppose. People opposing Smith worry that ruling for her would allow a wide variety of businesses to use speech or religious grounds for discriminating against minority groups (akin to the Jim Crow era). Which set of consequences are you more concerned about? Why?
  5. If you had final legal authority to decide this case, would you allow Smith to create wedding websites only for heterosexual couples? Why or why not?
  6. What principles would you use to determine which businesses could deny service to groups of people and which, if any, could not claim an exemption to public accommodation laws based on free speech?

Additional Resources

  • LISTEN to the Supreme Court oral argument of 303 Creative LLC v. Elenis and download the audio file and transcript.
  • WATCH Smith and her lawyer comment on the case.
  • WATCH a civil rights attorney and a progressive judicial activist comment on the hearing and its implications.
  • REVIEW a chart of every state’s public accommodation laws from the National Conference of State Legislatures (NCSL).
  • DISCUSS other controversial issues in the current Court term. See this blog’s posts on cases addressing the Voting Rights Act, affirmative action, and the Indian Child Welfare Act.
  • READ previous posts from this blog with discussion questions on the Respect for Marriage Act and a proposed 2019 Labor Department religious exemption rule for more on LGBTQ+ rights and religious exemptions.

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: Caitlyn Kim, Colorado Public Radio (CPR) News
[1] Roll Call:
[2] Associated Press:
[3] Oyez:
[4] Colorado Public Radio (CPR) News:
[5] Colorado Public Radio (CPR) News:
[6] Cornell Law School Legal Information Institute:
U.S. Department of Justice:
[7] Colorado Public Radio (CPR) News:
[8] Ibid.
[9] Associated Press:
[10] Bloomberg Law:
[11] Oyez:
[12] USA Today:
[13] Politico:
Supreme Court of the United States:
[14] Politico:
USA Today:
[15] CBS News:
[16] MSNBC:
[17] NPR:
[18] Colorado Public Radio (CPR) News:
[19] MSNBC:
[20] Associated Press:
[21] Associated Press:
Deseret News:
The Week:
[22] CBS News:
[23] Colorado Public Radio (CPR) News:
[24] CBS News:
[25] SCOTUSblog:
[26] Associated Press:
[27] The Center Square:
[28] Colorado Public Radio (CPR) News:
[29] SCOTUSblog:
[30] Ibid.
[31] CNN:
Deseret News:
Washington Examiner:
[32] Deseret News:
[33] CBS News:
[34] CBS News:


A Close Supreme Court Case Entangles Indigenous Children, Tribal Sovereignty, States’ Rights, and Race

What began as a child custody lawsuit evolved into a lengthy hearing of four consolidated cases before the Supreme Court on November 9, 2022.1 The law in question is the Indian Child Welfare Act (ICWA) and the Court’s eventual ruling on it could impact laws about race, states’ rights, and the sovereignty of Native American tribes.2

Why Did Congress Create the ICWA? What Does It Include?

Congress passed the ICWA in 1978 following over 100 years of federal policies such as American Indian boarding schools and the Indian Adoption Project. From the late 1800s through the middle-to-late 20th century, American Indian boarding schools aimed to assimilate Native American youth by forbidding tribal languages, beliefs, clothing, and names—a practice critics have labeled cultural genocide.3 From 1958 until 1967, the Indian Adoption Project operated with the stated goal of having Native American children adopted by white families.4

Extensive hearings and research prior to the ICWA’s passage showed that public and private child-welfare-oriented agencies had removed hundreds of thousands of American Indian children from their homes and placed 85 percent of them with non-tribal families.5 Few of these removals were due to abuse; most were based on social workers’ judgments that caretaking by extended family members (a common cultural practice in many Native American communities) demonstrated parental abandonment or that poverty (disproportionately present in Indian Country) amounted to neglect.6

In response, Congress passed the ICWA to stop a “white, middle-class standard” from dictating care decisions.7 The legislation set minimum standards for removing American Indian children (federal law uses the term “Indian” to refer to indigenous and Native American peoples of the United States).8 The ICWA also required states to notify tribes of an off-reservation American Indian child’s removal, and it set up a framework to give preferences for foster or adoption placements, first to extended family members, then to other tribal members, and subsequently to members of a different tribe—with some exceptions for “good cause.”9

Supporters of the ICWA say it has set a “gold standard” for other child welfare practices, both nationally and globally, especially with regard to its favoring of family placements.10 Critics argue that the ICWA places tribal needs over individual children’s needs by presuming that an American Indian tribe can always best serve the interest of an American Indian child.11 Other supporters contend that the ICWA especially benefits American Indian girls who are more likely than non-American Indian children to become human trafficking victims when placed in state foster homes.12 Still, state agencies and courts have often failed to enforce the Indian Child Welfare Act.13

READ part one of this blog’s series on the lead-up to the current Supreme Court case for more detailed historical context surrounding the ICWA.

Who Is Involved in the Current Case?

When a white Texas couple, Chad and Jennifer Brackeen, sought to foster and later adopt a 10-month-old Navajo and Cherokee boy, referred to in court as A.L.M., the ensuing legal battle led to a dispute over the boy’s half-sister, identified as Y.R.J.14 When the Brackeens learned that Y.R.J. would enter foster care, they filed for custody with the support of the child’s biological mother.15 An initial court ruling ordered shared custody between the Brackeens and Y.R.J.’s great aunt, who is of Navajo descent.16 Both parties appealed the decision, leading to the current Supreme Court case.17 In the meantime, Y.R.J., now 4, has lived with the Brackeens since infancy.18 According to Chad Brackeen, “It’s heartbreaking to us that there are laws out here that say it’s better for her to live in a tribal home, any tribal home … before she is allowed to stay in our home with her brother.”19

READ part two of this blog’s series on the lead-up to the current Supreme Court case for more information about the parties involved, the arguments at hand, and the prior legal steps of Brackeen v. Haaland.

What Could the Supreme Court Decide?

The case presents multiple legal questions that the Supreme Court may address.20 One is whether the ICWA can allow tribes to establish child placement preferences that state courts would have to follow.21 Texas argues that this unlawfully delegates a state’s legislative power to tribes, but President Joe Biden’s administration contends that the ICWA incorporates tribal preferences into federal law.22 Two related constitutional arguments also question state and federal authority: one asks if Congress’ Article I powers over Native Americans include child custody; the other asks if the ICWA violates the 10th Amendment’s “anticommandeering doctrine” by forcing state courts to implement a federal law.23

A separate legal question is over the Constitution’s equal protection guarantee, notably included in the 14th Amendment, which prevents racial, ethnic, and gender discrimination.24 The tribes and the Biden administration claim that the ICWA treats American Indians politically, based on their status as sovereign tribes, but the challengers argue that the law treats indigenous children and prospective adoptive parents on the basis of race.25 The distinction is significant because if the law is based on race, it must pass the stringent legal test of strict scrutiny rather than a lower bar called rational basis.26

What Implications Could This Decision Have?

Challengers to the ICWA note that Native American children are disproportionately represented in the foster care system, and they argue that the ICWA’s placement preferences add additional barriers between American Indian children and loving adoptive homes.27 “There are Americans out there who are eager to help these children out, and the Indian Child Welfare Act says they are not allowed to because their skin is the wrong color,” said Timothy Sandefur, an adjunct scholar at the libertarian-leaning Cato Institute.28 Texas Attorney General Ken Paxton wrote, “Knowing the difficulties that await them if they attempt to adopt a Native child, many couples simply turn elsewhere at the outset.”29

Kate Fort, director of the Indian Law Clinic at Michigan State University, said the Supreme Court’s decision could “lead to a fundamental re-understanding of how Congress can or cannot pass laws for tribes.”30 She pointed to a case in Washington, where challengers are echoing Brackeen’s arguments in opposition to an alleged gambling monopoly by Native Americans.31 According to Mary Kathryn Nagle, a Native American rights attorney, “For Indian country, it is maybe one of the most important cases that has ever gone before the Supreme Court.”32 Nagle has noted the oil and gas experience of the Brackeens’ law firm, suggesting it as a motivating factor in its work on the case.33 Robert Miller, a member of the Eastern Shawnee Tribe, tribal court judge, and Arizona State University professor of federal American Indian law, extended concern more broadly, saying, “All of a sudden, lands would be owned by ‘a race of Indian people,’ not a tribal government. Your borders, your police laws, everything on the reservation would be in question. I’m not being hyperbolic. I am afraid of this case.”34

What Did the Supreme Court Hearing Reveal?

Given the number of parties involved, the Supreme Court scheduled an extended hearing of one hour and 40 minutes, but the arguments exceeded three hours.35 Texas’s lawyer argued that Congress lacks the authority to enlist state governments in enforcing the ICWA, but Justice Sonia Sotomayor cited other laws with federal impact on state custody hearings, such as those involving deployed service members.36 Justice Amy Coney Barrett noted possible commandeering with regard to recordkeeping duties and the “active efforts” that the ICWA requires states to use to avoid breaking up Native American families.37 Justice Neil Gorsuch expressed disagreement, suggesting that since the “active efforts” provision applies to both state and private entities, it doesn’t attempt to co-opt state government.38 While Justices Barrett and Gorsuch, along with Justice Elena Kagan, indicated support for upholding Congress’s authority over American Indian affairs as “plenary,” or near-absolute, Justice Samuel Alito and Chief Justice John Roberts indicated concern that this could give Congress unlimited power over Native American law.39 In response, the Biden administration’s lawyer contended that Congress holds such power only if there is a rational relationship to Congress’ unique responsibilities regarding Native Americans.40

The “rational” standard seemed to draw criticism from justices who focused on race and equal protection questions, thereby implying a need for strict scrutiny in this case. Justice Brett Kavanaugh suggested Congress “couldn’t give a preference for white families for white children, for Black families for Black children, for Latino families for Latino children, for Asian families for Asian children.”41 The lawyer representing the Biden administration agreed that those decisions would be based on race but noted that the ICWA treated Native Americans as sovereign tribal entities rather than a racial group.42 Justice Kagan seemed to agree, noting the Supreme Court’s “long history of cases where we’ve understood legislation relating to the tribes as political.”43 Justice Sotomayor compared the ICWA to an existing international treaty that addresses child abduction and removal across national borders.44

Several justices questioned the racial/political distinction regarding the ICWA’s “third preference” that would place an American Indian child with a different tribe before a non-American Indian family.45 Justice Barrett said, “Let’s assume I agree with you that these are political classifications—this is just treating Indian tribes as fungible.”46 In response, the tribes’ lawyer noted that the Supreme Court could strike down that third preference alone and let the ICWA stand otherwise.47 He also said that the hypothetical transfer of an American Indian child from a tribe in Arizona to one in Maine “has never happened that we’ve been able to find or that counsel on the other side has been able to find.”48

Justice Gorsuch seemed to side with tribal lawyers over the implications of treating the ICWA as a race-based law, expressing concern that much of Title 25 of the U.S. Code (a section of laws governing Indian Country) wouldn’t survive an equal protection challenge.49 “There’ll be a lot that would be bitten out of Title 25,” said Justice Gorsuch. “We’d be busy for the next many years striking things down.”50

Justice Kavanaugh encapsulated the debate as a choice “between two fundamental and critical constitutional values.”51 On one side, Justice Kavanaugh described respecting tribal government and recognizing “the history of oppression and discrimination against tribes.” On the opposing side, he noted “the fundamental principle we don’t treat people differently on account of their race or ethnicity or ancestry.”52

How Does This Case Relate to Other Supreme Court Cases This Year?

Supreme Court observers have noted that many of the current term’s significant cases deal with race, either directly or indirectly.53 The Court has already heard cases on affirmative action and congressional redistricting (as related to the Voting Rights Act), and the December schedule features a case on the power of state legislatures over election law and voting restrictions (which often disproportionately affect people of color).54 Also in December, a case requesting a religious freedom exemption for a business that seeks to deny service to same-sex couples could see the Court discuss why that same exemption would or would not apply on racial lines.55

In the three cases the Supreme Court has already heard, one side was arguing for a “color-blind” application of the Constitution, to the perceived detriment of a minority group.56 In the Voting Rights Act case, for example, Alabama argued that a state cannot use race to benefit Black voters in drawing district maps.57 Supporters of a color-blind constitutional view see racial discrimination in all three cases, but opponents note that the post-Civil War Reconstruction amendments were never intended to be race-neutral but rather to use race-conscious laws to protect newly freed slaves.58 Those on both sides of the debate have pointed to the current makeup of the Court as potentially receptive to a color-blind constitutional reading.59

READ this blog’s posts on the Voting Rights Act case and the affirmative action cases for further discussion about this term’s Supreme Court cases focused on race.

What May Happen Next?

The ICWA has drawn significant support, with briefs in support of the law coming from hundreds of tribes and tribal organizations, over two dozen child welfare and adoption organizations, a bipartisan group of 87 members of Congress, and more than 20 states (ten of which have created state laws that mirror or exceed the ICWA’s standards).60 States could bolster those laws if the Supreme Court narrowly strikes down portions of the ICWA for federal overreach.61 Tribal advocates have said they will continue to fight for American Indian children, regardless of the Court’s decision.62

Based on the hearing, Supreme Court observers have speculated that Justice Gorsuch, a tribal rights proponent, could join with the three justices appointed by Democratic presidents in upholding portions of the ICWA, but that the group of four seems unlikely to draw the needed fifth justice to their side.63 A 5-4 ruling could chart a middle path that would uphold portions of the ICWA, strike down others, and avoid some of the far-reaching implications of a more sweeping decision. But such an outcome remains speculative until the Court issues its decision around June 2023.64

Discussion Questions

  1. During the hearing, Justice Kagan said, “The first thing you need for self government is a functioning polity,” and that Congress clearly “thinks that this statute is critical to the continuing existence of the tribe as a political entity.”65 In response, the Brackeens’ lawyer said that placing a Native American child with a white family wouldn’t change the child’s membership or reduce the size of the tribe.66
    1. How important do you think it is for Native American tribes to be given first preference to foster and adopt children that could be considered tribal members? Why do you think that?
    2. How important do you think it is for Native American children to be raised by extended family members or other members of their tribe? Why do you think that?
  2. Should state governments, the federal government, or tribal governments have primary jurisdiction over Native American children? Why?
  3. Do you think the ICWA should stay in place as it currently exists? Consider the following questions:
    1. Do you think the ICWA infringes on states’ rights to run their own adoption and custody systems? Why or why not?
    2. Do you think that having the federal government make laws about American Indian children is the best way to protect tribal rights? Why or why not?
    3. Does it discriminate against families like the Brackeens if a Native American child’s extended family gets preference over them to foster or adopt? Why or why not?
    4. Does it discriminate against families like the Brackeens if a Native American child’s tribe gets preference over them to foster or adopt? Why or why not?
    5. Does it discriminate against families like the Brackeens if a Native American tribe receives preference over them to foster or adopt a Native American child from a different tribe? Why or why not?
  4. Read the following two quotes to determine with which you agree more: “The precedent of the Supreme Court is that Indian tribes are political groups of people, they are not racial groups of people,” Chrissi Ross Nimmo, the deputy attorney general of Cherokee Nation, told reporters last month. “Tribes determine citizenship … just like countries.”67 Matthew D. McGill, a lawyer for the people challenging the law, said the children at issue had made no political choices. “They are human beings,” he said. “They are citizens of the United States and the states in which they reside. They are persons within the meaning of the Fifth Amendment. And they have liberty interests that the tribe cannot override simply by unilaterally enrolling them.”68
    1. Does giving preferential placement to tribes infringe on the liberty of American Indian children? Or would removing American Indian children from tribes do more to infringe on their liberty?
  5. The Brackeens are an Evangelical Christian couple.69 In a now-defunct blog, Jennifer Brackeen described religious inspiration for wanting to foster and adopt, and when it looked as though A.L.M. would be placed with a Navajo non-relative, Jennifer Brackeen wrote about how her family offered the boy access to their culture, which “he would not have had in his biological family.” By contrast, Sarah Kastelic, executive director of the National Indian Child Welfare Association, has said, “For a long time, non-Native people have been trying to ‘save’ Native children who don’t need saving.” Based on these quotes, consider the following question:
    1. Does having a religious motivation strengthen either party’s case? Why or why not?
  6. If you had final legal authority to determine the custody of now-four-year-old Y.R.J., how would you assign custody? To her great aunt of Navajo descent, to the Brackeens who adopted her half-brother, or to someone else? Would you prioritize any sort of shared custody? What factors most determined your decision?
  7. How concerned are you that this case could impact other laws about Native Americans? Why?
  8. Angelique EagleWoman, the director of the Native American Law and Sovereignty Institute at the Mitchell Hamline School of Law, refers to the ICWA as “a remedial statute because it has been the U.S. government’s policy for hundreds of years to destroy the Native American family.”70
    1. Do you think Congress should pass laws aimed at remedying past historical injustices? Why or why not?
    2. Do you think the Constitution should be read as “color-blind,” even if that disadvantages groups that some laws, like the ICWA, were historically created to protect? Why or why not?

Additional Resources

WATCH the Brackeens and Mary Kathryn Nagle (a Cherokee lawyer) comment on the case.

LISTEN to the Supreme Court hearing of Haaland v. Brackeen and consolidated cases.

WATCH “Blood Memory: A Story of Removal and Return,” an episode of “America ReFramed.”71  It presents an in-depth, first-hand account of a woman who was removed from her tribe in the Indian Adoption era and sought out her Native American culture as an adult. For a preview, watch the trailer here.

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: Shuran Huang for The Texas Tribune
[1] SCOTUSblog:
Texas Tribune:
[2] The Hill:
Washington Post:
[3] Equal Justice Initiative:
The Guardian:
Texas Tribune:
[4] Texas Tribune:
[5] The Hill:
[6] Washington Post:
[7] The Economist:
[8] ABA Journal:
Cornell Law School Legal Information Institute:
[9] Fox News:
[10] The Hill:
Native American Rights Fund:
Texas Tribune:
Washington Post:
[11] Cornell Law School Legal Information Institute:
[12] Ibid.
[13] The Economist:
The Guardian:
[14] Fox News:
The Guardian:
[15] Deseret News:
Fox News:
[16] Deseret News:
Fox News:
[17] Deseret News:
[18] Associated Press:
[19] NPR:
[20] Oyez:
Cornell Law School Legal Information Institute:
[21] SCOTUSblog:
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Cornell Law School Legal Information Institute:
Cornell Law School Legal Information Institute:
[27] Texas Tribune:
[28] Fox News:
[29] Texas Tribune:
[30] Fox News:
[31] Ibid.
[32] The Hill:
[33] Associated Press:
[34] Deseret News:
[35] Fox News:
Supreme Court of the United States:
USA Today:
[36] NPR:
[37] SCOTUSblog:
[38] Ibid.
[39] The Hill:
[40] SCOTUSblog:
[41] Washington Post:
[42] USA Today:
Washington Post:
[43] SCOTUSblog:
[44] Texas Tribune:
[45] Bloomberg Law:
Washington Post:
[46] Washington Post:
[47] Ibid.
[48] The Hill:
[49] Texas Tribune:
[50] Ibid.
[51] Bloomberg Law:
[52] New York Times:
[53] SCOTUSblog:
[54] Ibid.
[55] Ibid.
[56] Bloomberg Law:
[57] Ibid.
[58] Ibid.
[59] Ibid.
[60] Associated Press:
Deseret News:
The Guardian:
Source New Mexico:
Texas Tribune:
U.S. Senate Committee on Indian Affairs:
[61] Texas Tribune:
[62] Ibid.
[63] New York Times:
Washington Post:
[64] New York Times:
Texas Tribune:
USA Today:
[65] USA Today:
[66] Ibid.
[67] Fox News:
[68] New York Times:
[69] Texas Tribune:
[70] The Guardian:
[71] PBS:


Close Up’s Election Recap

By the end of the day on Election Day, 47 percent of eligible voters in the United States had cast a ballot in the 2022 midterm elections.1 After a week of waiting with several races still uncalled, heading to a runoff, or requiring a recount, it looks like Republicans will have a slim majority in the House of Representatives and Democrats will keep control of the Senate.2

Governing with a divided Congress generally means that legislation moves more slowly, as a highly polarized legislature must reach agreement over issues that deeply divide the nation before President Joe Biden can sign anything into law. While the current Congress is likely to pass funding the government by its December 16 deadline, things might be much more difficult next October when the time comes to find the government again. In addition, newly elected representatives and senators must work together to raise the debt ceiling or the United States will no longer be allowed to legally borrow money to fund federal programs.3

The two parties are starting to lay out their priorities for the new 118th Congress. Some House Republicans are hoping to investigate the president and his son, Hunter Biden, believing Hunter’s business dealings have compromised the White House.4 Senate Democrats will continue to prioritize filling vacancies in the judiciary by confirming judges nominated by President Biden.5

TRACK House Election Results on CNN 

Beyond the congressional races that took place nationwide, 36 states and three territories held gubernatorial elections on November 8.6 In four races, the party holding the governorship flipped, with Democrats gaining control in three states and Republicans gaining control in one. New milestones were marked, as the largest number of women governors will take office next year, two of whom are serving with lieutenant governors who are also women—the first time women hold both of those positions at the same time.7

Ballots in 37 states included a total of 132 measures for voters to consider.8 A diverse set of initiatives affected elections and voter identification, and most states rejected measures to enhance ID requirements or reduce early voting. Recreational cannabis use was legalized in Maryland and Missouri but rejected in North Dakota, South Dakota, and Arkansas.9 In the five states where abortion access was on the ballot, voters added protections for abortion or rejected additional restrictions.10

Many political pundits and journalists have expressed surprise regarding the midterm outcomes. Weeks before the election, these commentators told Americans to get ready for a “red wave” of Republican victories.11 There were reasons for this argument—inflation is high, the party in power usually loses seats, President Biden is unpopular, and past polls have overrepresented Democratic support. However, it turns out high-quality polls (conducted by professional polling companies that are unaffiliated with a political party) were quite accurate this year, with the only significant miss in Florida where Republican support was underestimated.12

Party officials are still examining what succeeded and what failed in their campaign strategies, but some trends have emerged. Abortion access was important to many voters this year.13 Candidates who campaigned on overturning the 2020 election results and those who placed doubt in election security tended to lose or do more poorly than expected.14 In some key states with close races, “split-ticket” voters were willing to vote for Republicans in some races and Democrats in others. For example, voters in both New Hampshire and Nevada elected a Republican governor and a Democratic senator.15

National and state elected officials are just getting ready to start their terms next year, but attention is already starting to aim toward 2024. The Senate map currently looks more challenging for Democrats, Donald Trump has announced he is running for president again, and Republican leadership is already assessing the best campaign strategies to use in two years.16 In the meantime, those in power face governing a public divided over issues such as climate, the economy, and individual rights.

Discussion Questions

  1. Did the results of the midterm elections surprise you? Why or why not?
  2. If you had been able to vote in this election, how would you have voted and why?
  3. Which issues are the most important for elected officials to address in the next two years? How, if at all, do your newly elected officials plan to solve these issues?
  4. Young voters (aged 18-29) are the age group least likely to vote. This time around, voter turnout among young people was at its second highest level for a midterm election in the last 30 years.17 Why do you think so many young people voted this year?

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: REUTERS/Marco Bello
[1] FiveThirtyEight:
[2] CNN:
[3] Vox:
[4] CBS News:
[5] Politico:
[6] National Governors Association:
[7] New York Times:
[8] New York Magazine:
[9] CBS News:
[10] CNN:
[11] Fox News:
[12] The New Yorker:
[13] The Hill:
[14] Business Insider:
[15] WBUR:
[16] The Hill:
[17] CIRCLE.