The United States is arguably the world’s oldest existing democracy. Its people benefit from a vibrant political system, a strong rule-of-law tradition, robust freedoms of expression and religious belief, and a wide array of other civil liberties. However, in recent years its democratic institutions have suffered erosion, as reflected in partisan manipulation of the electoral process, bias and dysfunction in the criminal justice system, flawed new policies on immigration and asylum seekers, and growing disparities in wealth, economic opportunity, and political influence.
The opposition Democratic Party took control of the lower house of Congress in November elections, which also featured contests for one-third of the Senate and numerous state-level offices. Turnout was the highest for midterm elections since 1914, and spending was the highest ever for US midterm elections.
Among numerous other judicial appointments, President Donald Trump secured his second appointment to the Supreme Court in October, when the Senate narrowly approved Judge Brett Kavanaugh to succeed retiring justice Anthony Kennedy after a tempestuous hearing process in which Kavanaugh was accused of past sexual abuse.
The administration took several steps aimed at tightening control over immigration that ran afoul of due process standards and both US and international law. They included an attempt to block asylum applications for those who cross the border outside official ports of entry, though that and other policies were being contested in the courts at year’s end.
The investigation into Russian interference in the 2016 presidential election made significant progress during the year, resulting in criminal charges against multiple Russian nationals and guilty pleas from several Americans associated with Trump’s campaign.
POLITICAL RIGHTS: 33 / 40
A. ELECTORAL PROCESS: 10 / 12
A1. Was the current head of government or other chief national authority elected through free and fair elections? 3 / 4
The United States is a presidential republic, with the president serving as both head of state and head of government. Cabinet secretaries and other key officials are nominated by the president and confirmed by the Senate, the upper house of the bicameral Congress. Presidential elections are decided by an Electoral College, with electors apportioned to each state based on the size of its congressional representation. In most cases, all of the electors in a particular state cast their ballots for the candidate who won the statewide popular vote, regardless of the margin. Two states, Maine and Nebraska, have chosen to divide their electoral votes between the candidates based on their popular-vote performance in each congressional district. The Electoral College makes it possible for a candidate to win the presidency while losing the national popular vote, an outcome that took place in the presidential elections of 2000 and 2016. In 2016, Trump won the Electoral College vote, 304 to 227, while finishing nearly three million votes behind Democratic Party nominee Hillary Clinton in the popular ballot.
Unlike previous presidential elections, the 2016 contest featured a significant amount of interference from a foreign power. The US intelligence community has concluded that the Russian leadership carried out a broad campaign to undermine public faith in the democratic process, denigrate Clinton, and aid Trump’s election chances. It included hacking of multiple targets, such as both major political parties and some electoral boards, as well as exploitation of leading social media platforms to spread divisive and misleading messages among US voters. Two 2018 reports commissioned by a Senate committee reinforced the intelligence findings, describing a massive Russian disinformation campaign designed to enhance the Trump candidacy and depress voting and other political engagement by Democratic-leaning constituencies.
Throughout 2017 and 2018, the Justice Department investigated the possibility that the Trump campaign had conspired or coordinated with the Russian government. The probe was overseen by Federal Bureau of Investigation (FBI) director James Comey until Trump fired him in May 2017. It was then taken up by Robert Mueller, the special counsel appointed by Deputy Attorney General Rod Rosenstein; Attorney General Jeff Sessions had recused himself from the matter due to his own involvement in the Trump campaign. Immediately after the November 2018 elections, Trump forced Sessions to resign, replacing him on an interim basis with Matthew Whitaker, the attorney general’s chief of staff. The move raised concerns about fresh attempts to interfere with the probe, as Whitaker had criticized it before his appointment. Whitaker declined to recuse himself, but Rosenstein reportedly continued to oversee the investigation. The Senate was expected to consider Trump’s nominee for a new attorney general in early 2019.
The White House repeatedly denounced the investigation as a baseless and politicized “witch hunt” during 2018, though the special counsel’s team obtained indictments against more than two dozen Russian nationals for their alleged role in the 2016 interference, as well as guilty pleas from several Trump campaign associates for crimes such as attempting to obstruct justice and lying to the FBI—often to hide their contacts with Russians. Trump’s former personal attorney, Michael Cohen, pleaded guilty to lying to Congress about a Moscow real-estate project that Trump’s company pursued well into 2016, and in a parallel case, Cohen pleaded guilty to campaign finance violations related to payments he had arranged to silence two women who claimed to have had affairs with Trump years earlier. He told the court that he had arranged the payments at Trump’s direction in late 2016 in order to protect his presidential candidacy.
A2. Were the current national legislative representatives elected through free and fair elections? 4 / 4
The Senate consists of 100 members—two from each of the 50 states regardless of population—serving six-year terms, with one-third coming up for election every two years. The lower chamber, the House of Representatives, consists of 435 members serving two-year terms. All national legislators are elected directly by voters in the districts or states that they represent.
The capital district, Puerto Rico, and four overseas US territories are each represented by an elected delegate in the House who can perform most legislative functions but cannot participate in floor votes.
Congressional elections are generally free and competitive, though partisan gerrymandering of House districts is a growing concern. In the 2018 midterm elections, the Republican Party retained control of the Senate with 53 seats, a gain of one. Democrats were left with 45 Senate seats, and there are two independent senators who generally vote with the Democrats. In the House, the Democrats gained 41 seats, winning a solid majority of 235 and reducing the Republicans to 199. Turnout exceeded 49 percent of the voter-eligible population, the highest percentage for midterm elections since 1914.
The quality of the voting and counting processes varied, as elections are administered by a patchwork of state and local authorities, but evidence of deliberate fraud was rare. One House race in North Carolina remained unresolved at year’s end, as the ostensible winner, a Republican, allegedly benefited from a fraud scheme involving absentee ballots.
In response to the problems with security and foreign interference in the 2016 elections, a number of measures were taken to safeguard the integrity of the process in 2018. With some assistance from the Homeland Security Department, states attempted to upgrade voting equipment and monitor their systems for potential hacking. Social media companies, which had been criticized for failing to prevent foreign actors from using their platforms to fraudulently influence the political process, made an effort to delete fake accounts and otherwise thwart disinformation campaigns. However, many analysts argued that election security provisions remained inadequate, and foreign influence efforts reportedly continued during the election period.
A3. Are the electoral laws and framework fair, and are they implemented impartially by the relevant election management bodies? 3 / 4
Critics have argued that the Electoral College system for presidential elections is undemocratic, as it violates the principle that each citizen’s vote should carry equal weight. Similar complaints have been made regarding the Senate, which grants each state two seats regardless of population. Defenders of these systems argue that they are fundamental to the United States’ federal structure, in which the states enjoy a substantial degree of autonomy, and that they ensure due political attention to all parts of the country’s territory.
While state borders are permanent, the borders of House districts are redrawn regularly—typically after each decennial census. In a practice known as gerrymandering, House districts, and those for state legislatures, are often crafted to maximize the advantage of the party in power in a given state. The redistricting system varies by state, but in most cases it is overseen by elected officials, and observers have expressed alarm at the growing strategic and technical sophistication of partisan efforts to capture state legislatures, control redistricting processes, and apply the latest data analysis to redraw maps. In 2018, the Supreme Court heard some cases on district maps but again declined to rule on the constitutionality of partisan gerrymandering. Meanwhile, voters in five states approved ballot measures that will place the redistricting process under the control of nonpartisan entities.
The midterm elections drew fresh attention to the fact that voting in many states is administered by elected, partisan officials who may be running for office themselves. The top election official in Georgia, Republican secretary of state Brian Kemp, made a successful run for governor, while Kansas secretary of state Kris Kobach, also a Republican, was defeated in his gubernatorial bid.
In January 2018, Trump disbanded the Presidential Advisory Commission on Electoral Integrity, of which Kobach had been the vice chair and de facto leader. The commission was established by executive order in May 2017, with a mandate to study and report on the registration and voting processes used in federal elections—particularly those that could lead to improper or fraudulent voting. The commission, which was not tasked with examining issues such as foreign interference or gerrymandering, was widely seen as an effort to follow up on Trump’s unsubstantiated assertion that between three and five million votes were cast illegally in the 2016 elections, costing him the popular vote. The panel failed to produce any credible evidence of widespread fraud and was criticized for withholding information from its Democratic members.
B. POLITICAL PLURALISM AND PARTICIPATION: 14 / 16
B1. Do the people have the right to organize in different political parties or other competitive political groupings of their choice, and is the system free of undue obstacles to the rise and fall of these competing parties or groupings? 4 / 4
The intensely competitive US political environment is dominated by two major parties, the right-leaning Republicans and the left-leaning Democrats. The country’s “first past the post” or majoritarian electoral system discourages the emergence of additional parties, as do a number of specific legal and other hurdles. However, the two parties’ primary elections allow for a broad array of views and candidates to enter the political system. The 2018 midterm elections featured participation by ideologically diverse candidates across the country.
A number of independent or third-party candidates have influenced presidential races or won statewide office, and small parties—such as the Libertarian Party and the Green Party—have also modestly affected state and local politics in recent years.
B2. Is there a realistic opportunity for the opposition to increase its support or gain power through elections? 4 / 4
Power changes hands regularly at the federal level, and while certain states and localities are seen as strongholds of one party or the other, even they are subject to stiff competition and power transfers over time. After the 2018 elections, the Democrats held 23 state governorships, while Republicans were reduced to 27; Republicans retained control over a larger majority of state legislatures, though the Democrats made gains.
In an unusual development, outgoing Republican-led legislatures in Michigan and Wisconsin attempted to strip powers from executive offices that had just been captured by Democrats in the midterm elections. The efforts largely failed in Michigan, due in part to vetoes by the outgoing Republican governor, but the relevant measures were adopted in Wisconsin, where Democrats were set to become governor and attorney general. The Republican-controlled legislature in North Carolina had pioneered such moves after a Democrat won the governorship in 2016, leading to court battles that were ongoing in 2018.
B3. Are the people’s political choices free from domination by the military, foreign powers, religious hierarchies, economic oligarchies, or any other powerful group that is not democratically accountable? 3 / 4
The influence of traditional party leadership bodies has steadily declined in recent decades, while various interest groups have come to play a potent role in the nominating process for president and members of Congress. This is partly because the expense and length of political campaigns places a premium on candidates’ ability to raise large amounts of funds from major donors, especially at the early stages of a race. While there have been a number of attempts to restrict the role of money in political campaigning, most have been thwarted or watered down as a result of political opposition, lobbying by interest groups, and court decisions that protect political donations as a form of free speech.
Estimates for the cost of the 2018 elections easily surpassed $3.9 billion, making them the most expensive midterms ever, and the final total was expected to exceed $5 billion. As in other recent elections, much of the spending was routed through special “political action committees,” or PACs, and other vehicles designed to minimize restrictions on donor anonymity and on the size and sources of contributions. Small donations made up an increasingly important share of candidates’ fundraising, but a few extremely wealthy contributors played an outsized role in overall spending, with the top 10 individual donors accounting for more than $400 million.
Concerns about undue influence have also focused on lobbyists and other figures working for foreign governments who associate themselves with political campaigns. The Mueller investigation uncovered a number of cases of undisclosed consultant work for foreign powers and led to increased enforcement of the Foreign Agents Registration Act (FARA). Former Trump campaign chairman Paul Manafort and former Trump national security adviser Michael Flynn, who also worked with the campaign, are among those who have admitted to FARA-related violations since the probe began. Manafort had represented the interests of former Ukrainian president Viktor Yanukovych as well as Russian figures with ties to President Vladimir Putin prior to 2016, while Flynn worked on behalf of the Turkish government during 2016. Separately, one of Trump’s personal lawyers, Rudolph Giuliani, continued to work as a consultant for various foreign interests in 2018 even as he represented the president in the Mueller inquiry.
B4. Do various segments of the population (including ethnic, religious, gender, LGBT, and other relevant groups) have full political rights and electoral opportunities? 3 / 4
A number of important laws are designed to ensure the political rights of racial and ethnic minorities. However, in 2013 the Supreme Court invalidated portions of the Voting Rights Act of 1965, a measure adopted to deal with racial discrimination in voting procedures. As a result, certain states that previously had to submit legal changes for preclearance by federal authorities were able to adopt election laws without prior review. A number of states, including some that were never subject to the preclearance rule, have rolled back innovations like early voting that contributed to higher rates of minority participation, or altered polling locations in ways that could disproportionately harm minority voters. Some have also enacted laws requiring voters to present specific forms of identification that may be cumbersome or costly to obtain—a provision that disproportionately affects minorities, elderly people, and those with disabilities.
Various state election-management policies in 2018 were criticized for having a disparate impact on minority voters. Under Kemp in Georgia, for example, the registrations of some 53,000 voters—most of them black—were stalled due to applicant information that did not exactly match government records, and hundreds of thousands of other voters had been purged from the rolls for failing to vote in recent elections. However, some states took steps to remove barriers that disproportionately affected minorities. Voters in Florida approved a constitutional change that restored suffrage rights to felons who had completed their prison terms, probation, or parole and were not convicted of murder or sex offenses, benefiting up to 1.4 million people.
The 2018 elections also demonstrated increased participation by women and minority candidates. The new Congress was set to include the first Native American women members, the first Muslim women, and record numbers of black, Hispanic, Asian American and Pacific Islander, and women lawmakers.
In a possible threat to the political rights of immigrant communities and their native-born relatives and neighbors, the Commerce Department announced in March that it would add a question on citizenship status to the 2020 census, despite expert warnings that the change would deter participation by many households. An undercount would have a range of negative effects, including a distortion of congressional reapportionment and of the allocation of government resources. Lawsuits aimed at blocking the added question were ongoing at year’s end. Separately, the president said in October that he was considering an executive order to end “birthright citizenship,” the right to automatic citizenship for all those born in the United States, but this would likely require a constitutional amendment.
C. FUNCTIONING OF GOVERNMENT: 9 / 12
C1. Do the freely elected head of government and national legislative representatives determine the policies of the government? 3 / 4
Hampered by partisan infighting and polarization, Congress has struggled in recent years to perform its various duties, particularly drafting and passing the government’s annual appropriations bills. Instead it has frequently relied on short-term, stopgap spending measures to maintain government operations. After two brief shutdowns in early 2018, lawmakers made some progress, adopting five of the 12 appropriations bills using normal procedures. However, lack of agreement on the final seven in late December led to a partial government shutdown that was ongoing at year’s end. President Trump refused to sign a stopgap bill unless it included sufficient funding to build a wall along the border with Mexico, his signature 2016 campaign promise.
The executive branch also continued to experience some dysfunction during the year. The Trump administration has been unusually slow in filling vacant positions across the higher levels of government departments and agencies, making it difficult for them to operate as intended by law. More than 250 of about 700 key posts requiring Senate confirmation remained without a nominee at year’s end. The problem was exacerbated by an unusually high number of departures by senior officials. Those who announced their resignations or were dismissed by the president in 2018 alone included the secretary of state, secretary of defense, national security adviser, attorney general, UN ambassador, White House counsel, and White House chief of staff.
C2. Are safeguards against official corruption strong and effective? 3 / 4
The United States benefits from a number of strong safeguards against official corruption, including a largely independent law enforcement system, a free and vigorous press, and an active civil society sector. A variety of regulations and oversight institutions within government are designed to curb conflicts of interest and prevent other situations that could lead to malfeasance.
Since 2017, the Trump administration has presented a number of new challenges to existing norms of government ethics and probity. Anticorruption watchdogs criticized President Trump for shifting management of his real-estate development empire to his children rather than divesting ownership or establishing a stronger structural barrier between himself and his businesses. This lack of separation raised concerns that the president was using his office for personal enrichment, or that his official decisions were influenced by his private business interests; lawsuits that were ongoing in 2018 focused on a constitutional rule that forbids officeholders from receiving compensation, or “emoluments,” from foreign governments, which Trump was accused of doing through his businesses. The president, his staff, and special interest groups of foreign and domestic origin all frequently visited and held events at Trump-branded properties in the United States during his first two years in office, generating publicity and income. Trump’s decision to appoint his daughter and son-in-law as presidential advisers prompted similar concerns about their own business interests, as well as accusations of nepotism.
The Trump administration also notably undercut conflict-of-interest restrictions for White House and executive branch appointees. Although the president issued an executive order in 2017 that limited appointees’ ability to shift to lobbying work after leaving government, the same order eased restrictions on lobbyists moving into government, and the administration initially resisted efforts to disclose waivers allowing appointees to skirt the rules that remained. In practice, many Trump nominees received such waivers. Journalistic and congressional investigations have routinely found conflicts of interest and other ethical violations among nominees and appointees, and key officials including the administrator of the Environmental Protection Agency (EPA) and the secretary of the interior stepped down amid ethics scandals during 2018.
C3. Does the government operate with openness and transparency? 3 / 4
The United States was the first country to adopt a Freedom of Information Act (FOIA) over 50 years ago, and the law is actively used by journalists, civil society groups, researchers, and members of the public. Government agencies’ performance in responding to FOIA requests has been problematic in recent years, and a 2016 reform law was designed to ease disclosures. However, the Associated Press reported in March 2018 that responsiveness had declined during the 2017 fiscal year, which ended in September 2017, with applicants receiving either no records or redacted materials in response to 78 percent of requests.
The executive branch includes a substantial number of auditing and investigative agencies that are independent of political influence; such bodies are often spurred to action by the investigative work of journalists. Several inspector general posts across government remained vacant during 2018, though the offices continued to function under acting leaders.
Since assuming office, President Trump and members of his administration have frequently made statements that were either misleading or untrue, and typically failed to correct the record when such statements were challenged by the press and others. The Washington Post calculated that Trump himself had averaged more than 15 erroneous claims per day during 2018, for a total of more than 7,600 since he took office. The administration has also been criticized for operating with greater opacity than its immediate predecessors, for example by making policy and other decisions without meaningful input from relevant agencies and their career civil servants, removing information on certain issues—such as climate change—from government websites, and denying public access to logs of White House visitors. In a break with presidential tradition, Trump continued to refrain from releasing his personal tax records.
CIVIL LIBERTIES: 53 / 60
D. FREEDOM OF EXPRESSION AND BELIEF: 16 / 16
D1. Are there free and independent media? 4 / 4
The United States has a free, diverse, and constitutionally protected press. The media environment retains a high degree of pluralism, with newspapers, newsmagazines, traditional broadcasters, cable television networks, and news websites competing for readers and audiences. Internet access is widespread and unrestricted. While many larger outlets have prospered, independent local sources of news have struggled to keep up with technology-driven changes in news consumption and advertising, contributing to significant ownership consolidation in some sectors. News coverage has also grown more polarized, with certain outlets and their star commentators providing a consistently right- or left-leaning perspective. The cable network Fox News in particular has grown unusually close to the Trump administration, with several prominent on-air personalities and executives migrating to government jobs since 2017, and key hosts openly endorsing Republican candidates or participating in campaign rallies ahead of the 2018 elections. Separately, major tabloid publisher American Media Inc. confirmed that it had participated in the scheme to suppress news of Trump’s alleged extramarital affairs ahead of the 2016 election.
Since the 2016 presidential campaign, Trump has been harshly critical of the mainstream media, routinely using inflammatory language to accuse them of bias and mendacity. He has maintained a drumbeat of attacks on individual journalists and established outlets, describing them as—among other things—“fake news” and the “enemy of the American people.” As of 2018 he had not followed through on past threats to strengthen libel laws or review certain outlets’ broadcast licenses.
Despite increased hostility from political figures and their supporters on social media, the mainstream media—including national television networks and major newspapers—have devoted considerable resources to independent coverage of national politics. Outlets like the New York Times, the Washington Post, and CNN have conducted investigations into the business affairs of Trump and his associates, closely examined alleged contacts between the Trump presidential campaign and the Russian government, and regularly assessed the accuracy of the administration’s claims.
A growing number of Americans look to social media and other online sources for political news, increasing their exposure to disinformation and propagandistic content of both foreign and domestic origin. The larger platforms have struggled to control false or hateful material without harming freedom of expression or their own business interests. During 2018, a series of major social media and streaming services decided to ban content from far-right conspiracy theorist Alex Jones and his InfoWars website, citing policies that prohibited hate speech and abusive behavior. Facebook and Twitter announced the deletion of hundreds of accounts linked to Russia and Iran that had apparently been used for fraudulent public manipulation efforts.
Serious cases of violence against journalists in the United States are unusual. In June 2018, however, five employees of the Capital Gazette in Annapolis, Maryland, were shot and killed by a man with a personal grudge against the newspaper. The gunman was in pretrial detention at year’s end.
D2. Are individuals free to practice and express their religious faith or nonbelief in public and private? 4 / 4
The United States has a long tradition of religious freedom. The constitution protects the free exercise of religion while barring any official endorsement of a religious faith, and there are no direct government subsidies to houses of worship. The debate over the role of religion in public life is ongoing, however, and religious groups often mobilize to influence political discussions on the diverse issues in which they take an interest. The Supreme Court regularly adjudicates difficult cases involving the relationship between religion and the state.
Hate crimes and assaults based on religion are generally prosecuted vigorously by law enforcement authorities. FBI statistics have shown sharp increases in hate crimes linked to religious bias in recent years, with the bulk of incidents directed against Jews and Muslims. In an October 2018 attack, a man shot and killed 11 worshippers at a synagogue in Pittsburgh, Pennsylvania. The assailant, who was arrested, had a history of posting white supremacist and antisemitic messages on social media.
D3. Is there academic freedom, and is the educational system free from extensive political indoctrination? 4 / 4
The academic sphere has long featured a high level of intellectual freedom. While it remains quite robust by global standards, this liberty has come under some pressure in recent years. University students at a number of campuses have obstructed guest speakers whose views they find objectionable by shouting them down or holding strident and at times violent protests. In the most highly publicized cases, students and nonstudent activists have physically prevented presentations by controversial speakers, especially those known for their views on race, gender, immigration, and other sensitive issues. University faculty have also reported instances of harassment—including on social media—related to curriculum content, textbooks, or statements that some students strongly disagreed with. As a consequence, some professors have allegedly engaged in self-censorship. Separately, the American Association of University Professors has complained that the politicization of climate change and other scientific topics is contributing to a more hostile environment for those working in related fields, including instances of harassment.
D4. Are individuals free to express their personal views on political or other sensitive topics without fear of surveillance or retribution? 4 / 4
Americans generally enjoy open and free private discussion, including on the internet, though a number of threats to this freedom have gained prominence in recent years. Civil libertarians, many lawmakers, and other observers have pointed to the real and potential effects of National Security Agency (NSA) collection of communications data and other forms of intelligence-related monitoring on the rights of US citizens. A related debate about the need for and dangers of government restrictions on encryption technology remains unresolved. However, ongoing concerns about state surveillance have been partly displaced by new attention on foreign hacking, the sale or theft of personal data, and user intimidation on social media.
E. ASSOCIATIONAL AND ORGANIZATIONAL RIGHTS: 11 / 12 (+1)
E1. Is there freedom of assembly? 4 / 4 (+1)
In general, officials respect the constitutional right to public assembly. Demonstrations against government policies are frequently held in Washington, New York, and other major cities. In response to acts of violence committed in the course of some past demonstrations, local authorities often place restrictions on the location or duration of large protests. In August 2018, the National Park Service proposed charging fees and imposing other new rules for protests in Washington, DC. The plan was criticized by civil liberties groups and remained under consideration at year’s end.
Protest activity was robust during 2018, with the Crowd Counting Consortium reporting over 1,700 events with up to 4.6 million participants in June alone. Large demonstrations were organized on topics including women’s rights, immigration, and mass shootings at schools. The sorts of violent incidents that marred protests in 2016 and 2017, most notably the clashes between white supremacist marchers and counterprotesters in Virginia in 2017, were largely absent in 2018.
Score Change: The score improved from 3 to 4 because protests and demonstrations during 2018 featured less violence and fewer restrictions from the authorities than in the previous two years.
E2. Is there freedom for nongovernmental organizations, particularly those that are engaged in human rights– and governance-related work? 4 / 4
US laws and practices give wide freedom to nongovernmental organizations and activists to pursue their civic or policy agendas. Organizations committed to the protection of civil liberties, immigrants’ rights, equality for women and minority groups, and freedom of speech have become more active since Trump’s election, mounting campaigns and filing lawsuits to block actions by the administration that they considered harmful. A number of privately supported projects have also been established in recent years to address deficiencies in the electoral and criminal justice systems.
E3. Is there freedom for trade unions and similar professional or labor organizations? 3 / 4
Federal law guarantees trade unions the right to organize and engage in collective bargaining. The right to strike is also guaranteed, though many public employees are prohibited from striking. Over the years, the strength of organized labor has declined, and just 6.4 percent of the private-sector workforce belonged to unions in 2018. While public-sector unions have higher rates of membership, with 33.9 percent, they have come under pressure from officials concerned about the cost of compensation and pensions to states and municipalities. The overall unionization rate in the United States is 10.5 percent. The country’s labor code and decisions by the National Labor Relations Board (NLRB) during Republican presidencies have been regarded as impediments to organizing efforts. Union organizing is also hampered by resistance from private employers.
In June 2018, public-sector unions were dealt a major setback when the Supreme Court, by a 5–4 majority, ruled that government employees cannot be required to contribute to unions that represent them in collective bargaining. The decision was expected to lead to further losses of union revenue and membership. Organized labor did score a modest victory when referendum voters in Missouri overturned a 2017 law that would have similarly allowed private-sector workers who benefit from union bargaining to opt out of paying union dues or fees. That left 27 states with such “right-to-work” legislation in place. The year also featured teachers’ strikes over low pay and education funding in several states, with most winning modest concessions from state governments.
F. RULE OF LAW: 11 / 16 (−1)
F1. Is there an independent judiciary? 3 / 4
The American judiciary is largely independent. The courts have regularly demonstrated their autonomy during the Trump presidency by blocking or limiting executive actions. However, Trump has responded in some cases by verbally attacking the judges and courts responsible and accusing them of political bias. In November 2018, the president excoriated a federal judge at the Ninth Circuit Court of Appeals over an unfavorable ruling on asylum policy, and persisted in his public remarks despite a rare rebuke from Chief Justice John Roberts. Trump has also used his pardon power in a politicized fashion, overturning the convictions of several individuals whose cases were championed by conservatives, and has publicly discussed pardoning himself or other individuals caught up in the Mueller investigation.
Judicial appointments under Trump have raised further questions about politicization. Republican leaders in the Senate had stalled many federal judicial nominations in the final years of Barack Obama’s presidency, resulting in an unusually large number of vacancies at the beginning of 2017. The most prominent was a seat on the Supreme Court that the Senate had held open during 2016 by refusing to hold hearings on Obama’s nominee. In 2017, the Senate confirmed Trump’s nominee for the position, Neil Gorsuch, but only after the Republican leadership changed Senate rules that had required a supermajority to end debate on Supreme Court nominations, allowing the confirmation to proceed with a simple-majority vote. By the end of 2018, Trump had filled 83 vacancies on federal appellate and district courts as well, a record for the modern era; this meant that one in six sitting federal appeals court judges were Trump appointees.
The president filled a second vacancy on the Supreme Court that was created by Justice Kennedy’s retirement in July 2018. Trump’s nominee, federal appellate court judge Brett Kavanaugh, faced a bitter confirmation battle after a woman came forward to accuse him of having sexually abused her while both were in high school. Kavanaugh denied that and subsequent allegations and was confirmed in October, with just one Senate Democrat joining Republicans to vote in his favor. During the confirmation hearings, the judge angrily denounced the campaign against him as a “political hit” orchestrated by “left-wing opposition groups,” fueling doubts about his future impartiality on the bench.
In many states, judges are chosen through either partisan or nonpartisan elections, and a rise in campaign fundraising for such elections over the last two decades has increased the threat of bias and favoritism in state courts. In addition, executive and legislative officials in a few states have attempted to increase their control over state supreme courts, including through impeachments and constitutional changes.
F2. Does due process prevail in civil and criminal matters? 3 / 4
While the United States has a strong rule-of-law tradition, the criminal justice system has been criticized for a number of chronic weaknesses. Media reports and analyses in recent years have drawn new attention to the extensive use of plea bargaining in criminal cases, with prosecutors employing the threat of harsh sentences to avoid trial and effectively reducing the role of the judiciary; deficiencies in the parole system; long-standing funding shortages for public defenders, who represent low-income criminal defendants; and the practice of imposing court fees or fines for minor offenses as a means of raising local budget revenues, which can lead to jail terms for those who are unable to pay.
These problems and evolving enforcement and sentencing policies have contributed to major increases in incarceration over time. The population of sentenced state and federal prisoners soared from about 200,000 in 1970 to some 1.5 million as of 2016. The incarceration rate based on such counts rose from around 100 per 100,000 people in 1970 to a peak of more than 500 in the 2000s, then slipped to 450 as of 2016. There are also hundreds of thousands of pretrial detainees behind bars. Black and Hispanic inmates account for a majority of the prison population, despite representing around a third of the US population combined. Researchers and criminal justice professionals have reached a broad consensus that this level of incarceration is not needed to preserve public safety. Civil liberties organizations and other groups have also argued that prison sentences are often excessive and that too many people are incarcerated for minor drug offenses.
In December 2018, under pressure from a bipartisan coalition advocating for reforms to curb mass incarceration, Congress passed and the president signed a law that eased federal mandatory-minimum sentencing rules, among other modest changes. A majority of states have also passed laws in recent years to reduce sentences for certain crimes, decriminalize minor drug offenses, and combat recidivism.
F3. Is there protection from the illegitimate use of physical force and freedom from war and insurgencies? 3 / 4
Mass shootings remained a concern during 2018, though the overall US homicide rate, 5.3 per 100,000 inhabitants as of 2017, is relatively low by regional and historical standards, and crime rates generally have been in decline since the 1990s. Among the year’s deadliest shootings were a rampage at a California bar that killed 13 people in November and two high school attacks that killed 10 people in Santa Fe, Texas, in May, and 17 people in Parkland, Florida, in February. In October, a Florida man was arrested for allegedly sending pipe bombs through the mail to a group of prominent critics of President Trump. None of the devices detonated.
The increased policy focus on the criminal justice system in recent years has coincided with a series of widely publicized incidents in which police actions led to the deaths of suspects, many of whom belonged to racial and ethnic minorities. When officers involved in fatal shootings have been brought to trial, the cases have typically ended in acquittals or sentences on reduced charges. In 2018, however, former police officers in Dallas and Chicago were convicted of murder for the killing of black men while on duty. The Trump administration has pulled back from previous Justice Department policies aimed at imposing reforms on troubled local police departments through court-approved agreements. Then attorney general Sessions argued that federal interventions in local crime-fighting efforts could harm police morale and safety.
Use of the death penalty has declined significantly in recent years. There were 25 executions across eight states in 2018—up from 23 in 2017 but down from a peak of 98 in 1999. The death penalty has been formally abolished by 20 states; in another 17 states where it remains on the books, executions have not been carried out for the past five years or more. In 2018, the Supreme Court of Washington State found that the death penalty violated the state constitution. The most recent federal execution was in 2003. Of particular importance in this downward trend have been the exoneration of some death-row inmates based on new DNA testing, states’ inability to obtain chemicals used in lethal injections due to objections from producers, and legal challenges to the constitutionality of the prevailing methods of lethal injection. The US Supreme Court has effectively ruled out the death penalty for crimes other than murder and in cases where the perpetrator is a juvenile or mentally disabled, among other restrictions.
F4. Do laws, policies, and practices guarantee equal treatment of various segments of the population? 2 / 4 (−1)
An array of policies and programs are designed to protect the rights of individuals against discrimination based on race, ethnicity, gender, and other categories, including in the workplace. Women and some minority groups continue to suffer from disparities in various social indicators and overall economic standing. For example, although women constitute almost half of the US workforce and are well represented in many professions, the average compensation for female workers is roughly 80 percent of that for male workers, a gap that has remained relatively constant over the past several decades. Women also face other employment obstacles. A popular social media campaign that began in late 2017, dubbed the #MeToo movement, encouraged victims of sexual harassment and assault in the workplace—mainly women—to speak out about their experiences. The phenomenon has led to the sudden downfall of many powerful men in the worlds of politics, business, news, and entertainment, but it also underscored the scale of the problem in American society.
Federal antidiscrimination legislation does not explicitly include LGBT (lesbian, gay, bisexual, and transgender) people as a protected class, though many states have enacted such protections, and recent administrations have attempted to expand LGBT rights through administrative orders. For instance, the government bans discrimination based on sexual orientation or gender identity in federal employment and among federal contractors. The Trump administration reversed a 2016 guidance document that had directed schools to allow transgender students to use bathrooms and other facilities matching their gender identity, and has argued that existing legal protections against sex discrimination do not cover sexual orientation or gender identity, as some courts and government agencies have claimed. In 2017, Trump announced a ban on transgender people serving in the military, but it had not taken effect as of late 2018 due to challenges in federal court.
The Trump administration has made a series of decisions and proposals meant to reduce the number of asylum seekers, refugees, and undocumented immigrants entering and residing in the country, usually citing exaggerated security concerns as justification. The moves have in many cases been hasty, uncoordinated, and underfunded, leading to implementation problems as well as conflicts with existing laws, constitutional protections, and international human rights standards.
Beginning soon after his inauguration in January 2017, the president issued a series of three executive orders barring travel from a group of Muslim-majority countries on security grounds, twice revising the original order in response to lawsuits claiming that the bans were blatantly discriminatory. In June 2018, the Supreme Court upheld the third version, which banned most entries by citizens of Iran, Syria, Yemen, Libya, Somalia, and one non-Muslim country, North Korea. These orders, combined with other administration changes, helped to sharply reduce the number of refugees admitted to the United States for resettlement. The cap for the 2018 fiscal year was set at 45,000, the lowest since the resettlement program began in 1980, but fewer than 22,500 were admitted in practice. The cap for fiscal 2019 was set at 30,000. These reductions were accompanied by precipitous drops in both the number and percentage of admitted refugees who are Muslim; admissions of Middle Eastern Christian refugees also declined dramatically, even as the proportion of accepted refugees who are European rapidly increased.
The administration has sought to deter the growing number of Central Americans, often families with children, arriving at the southern border and applying for asylum in the United States. In 2018, US authorities pursued a “zero tolerance” policy of criminally prosecuting all adults who crossed the border irregularly, even if they were seeking asylum as permitted under US and international law. As a result, thousands of children were separated from their detained adult family members in a haphazard manner; after a public outcry and legal challenges, the president issued an order in June calling for such families to be kept together. Abrupt mass releases were later reported as family detention and shelter systems were overwhelmed. Meanwhile, children traveling alone were held in federal custody in record numbers and for longer periods, due in large part to a June policy requiring everyone in the household of a potential sponsor—usually a relative already in the United States—to be fingerprinted before a child was released to them. The policy was eased in December, by which time there were more than 14,000 children in government shelters. Separately, in June, the attorney general issued a ruling that asylum claims based on domestic violence or gang violence by nonstate actors should generally be considered invalid; a federal judge struck down the ruling in December. In November, a federal court blocked an administration attempt to automatically reject asylum bids by people who cross the border irregularly rather than applying at an official port of entry. Other government practices—including the “zero tolerance” prosecution policy and restrictions on the number of asylum seekers allowed to be processed at official entry points each day, known as “metering”—had already contributed to large backlogs of would-be applicants gathered in poor living conditions on the Mexican side of the border. In late December, the administration announced a plan to force asylum seekers to wait in Mexico until they received a ruling on their cases.
The administration has attempted to ramp up arrests and deportations of both undocumented immigrants, regardless of whether they had committed crimes, and legal immigrants or refugees who committed crimes in the United States, even if they had long since completed their sentences. The previous practice had been to focus deportation efforts on the most dangerous criminal aliens with the weakest ties to American communities. The new enforcement drive added to an existing backlog of cases in immigration courts; there were more than 800,000 pending cases as of November 2018, a 49 percent increase since Trump took office. The number of people in immigration detention was at record levels in 2018, with more than 40,000 people in custody at any given time. In August, a federal judge rejected an administration effort to end the Deferred Action for Childhood Arrivals (DACA) program, which prevents the deportation of undocumented immigrants who were brought to the United States as children.
Score Change: The score declined from 3 to 2 due to government policies and actions that improperly restricted the legal rights of asylum seekers, signs of discrimination in the acceptance of refugees for resettlement, and excessively harsh or haphazard immigration enforcement policies that resulted in the separation of children from adult family members, among other problematic outcomes.
G. PERSONAL AUTONOMY AND INDIVIDUAL RIGHTS: 15 / 16
G1. Do individuals enjoy freedom of movement, including the ability to change their place of residence, employment, or education? 4 / 4
There are no significant restrictions on freedom of movement within the United States, and residents are generally free to travel abroad without undue obstacles.
G2. Are individuals able to exercise the right to own property and establish private businesses without undue interference from state or nonstate actors? 4 / 4
Property rights are widely respected in the United States. The legal and political environments are supportive of entrepreneurial activity and business ownership, which have contributed to the relatively successful integration of immigrants into American society.
G3. Do individuals enjoy personal social freedoms, including choice of marriage partner and size of family, protection from domestic violence, and control over appearance? 4 / 4
Men and women generally enjoy equal rights in divorce and custody proceedings, and there are no undue restrictions on choice of marriage partner, particularly after a 2015 Supreme Court ruling that all states must allow same-sex marriage. The practice had already become legal in most states through court decisions, legislative action, or referendums. In recent years, a growing number of states have passed laws to eliminate exemptions that allow marriages of people under age 18 in certain circumstances. Rape and domestic violence remain serious problems, and the applicable laws vary somewhat by state, though spousal rape is a crime nationwide. Numerous government and nongovernmental programs are designed to combat such violence and assist victims. In the past several years, a series of new state laws have reduced women’s access to abortion without overtly breaching prior Supreme Court decisions on the issue, and some have survived judicial scrutiny, adding to state-by-state variation in access.
G4. Do individuals enjoy equality of opportunity and freedom from economic exploitation? 3 / 4
The “American dream”—the notion of a fair society in which hard work will bring economic and social advancement, regardless of the circumstances of one’s birth—is a core part of the country’s identity, and voters tend to favor government policies that enhance equality of opportunity. In recent decades, however, studies have shown a widening inequality in wealth and a narrowing of access to upward mobility. One key aspect of inequality is the growing economic gap between Americans with university degrees and those with a high school degree or less; the number of well-compensated jobs for the less-educated has fallen over time as manufacturing and other positions are lost to automation and foreign competition, and successive governments have failed to improve access to education and training in response. Many states and municipalities have enacted substantial hikes in the minimum wage, and this trend continued in 2018, but workers face a variety of obstacles to stable and remunerative employment, including inadequate public transportation, high costs of living in economically dynamic regions, and a preference among many companies for fragmented and unpredictable shift work. Inequality remained a major problem even as the national unemployment rate fell below 4 percent during the year, reaching its lowest levels in decades.