State of the Union Address (Legal Edition)

‘Let’s finish the job’

Tonight, I’m sharing some observations from the 2023 State of the Union address, as it touched on legal issues. Well, for the most part. Because it was such an incredible speech, for those of you who didn’t see it, that there’s a lot to discuss!

Marty Walsh, the departing Labor Secretary, was the designated survivor. He’s leaving to join the National Hockey League Players’ Association. Other than Walsh, all of President Biden’s original cabinet picks remain in place. That’s something of a remarkable record, especially heading into an era of investigations and impeachments. Biden has the support of his cabinet.

Two retired justices came in behind current members of the Court, Stephen Breyer and Anthony Kennedy. That’s unusual. But no Alito, Thomas, Sotomayor, or Gorsuch. Alito last attended the State of the Union address during the Obama presidency, where he was captured on camera shaking his head no and mouthing “That’s not true” in response to President Obama’s entirely accurate characterization of the 2010 Citizens United decision, which inserted dark money into politics, giving corporations and special interest groups the ability to spend nearly unlimited funds on election campaigns. (For more on Citizens United, read here.)

Biden looked to the Republican side of the aisle as the speech began and said, “You can smile, it’s okay.” He followed up by telling Speaker Kevin McCarthy he did not want to ruin his reputation but was looking forward to working with him. Those comments were the precursor to a rollicking speech in which Biden’s energy never ebbed and he constantly one-upped the Republican side of the chamber. It was as though he’d taken all of the “Dark Brandon rising” memes to heart.

Biden turned serious, with a warning for members of Congress who have threatened to overturn the Inflation Reduction Act. (Read the details of the Act here.) “As my coach used to say,” he told them, “ ‘Good luck in your senior year’ … If you pass a bill, I will veto it.” He moved on to make the case for making corporations and the wealthy pay a fair share of taxes—a billionaire tax. Billionaires, Biden said, should not pay less in taxes than firefighters or schoolteachers, approaching the issue with common sense and without rhetoric. “Let’s finish the job. There’s more to do.”

He also touted his $1.7 trillion reduction in national debt. His “predecessor,” he said, racked up increases four years in a row, adding nearly 25% of the total national debt from its inception. “Check it out,” Biden said to clamoring Republicans, calling on them to pass an increase to the debt ceiling without conditions, as they did repeatedly for the former guy. Biden set some context for the battle over increasing the debt ceiling that’s coming. But he did something even more important, refusing to be cowed by the shouts coming from Republicans.

And then, it happened.

Something completely unexpected, as Biden neared the 50-minute mark. Biden, who drew jeers from Republicans for suggesting they opposed continuing Medicare and Social Security, turned it back on them and said he appreciated their support. “We’ve got unanimity,” he quipped. He then summoned an impressive swath of the Congress to its feet to show support for seniors. “Apparently it’s not going to be a problem,” he said. For those who have suggested Biden has lost a step, it was remarkable and reassuring evidence that they are wrong. Biden was nimble, displaying a political acumen born of decades in the Senate and, now, a decade in the White House. He didn’t miss a beat. It was the kind of spontaneous moment most politicians can only dream of having. For Biden, it came during the State of the Union address.

Biden spoke to the Covid crisis, as expected. But he devoted some time at the end of that section of his speech to a highly substantive proposal. He called for a reinvigoration of the Inspector General authority and other resources so the government can “double down on prosecuting criminals who stole relief money that was meant to help” Americans. Perhaps one of the least-remarked moments in the speech, it resonated strongly with me, because as a U.S. Attorney, I led a zero-tolerance approach for fraud following the Deepwater Horizon oil spill in the Gulf of Mexico, as we saw fraudsters siphon off money meant to help people and businesses that were truly hurting. Biden understands the problem, calling for a crackdown on “criminal syndicates stealing billions of dollars from the American people.”

We knew in advance of the speech that Tyre Nichols’s parents would be there. I was enormously impressed with his mother’s poise and courage when she spoke during his funeral. It seems almost unthinkable that she should have to be in Washington barely two weeks later. If we are ultimately able to make progress on the issue of police violence, it will be because of Black women who stood for justice, from Emmet Till’s mother to Ms. Nichols and so many others.

Biden said that she told him she has faith that “something good will come of this.” He spoke about the commitment most police officers make to their communities but concluded that “equal protection is a covenant we have with each other in America” and that just like law enforcement has a right to go home safely, so do brown and Black children. “When police departments violate the public trust, they must be held accountable,” he said, calling on Congress “to rise to this moment” and saying “we can’t turn away.” Biden name-checked his executive order, which banned the use of chokeholds and no-knock warrants by federal law enforcement, while saying there was more to be done. Of course, the backdrop to this is the 117th Congress’s failure to pass the George Floyd Act to reform policing. There was no specific mention of re-upping that bill, suggesting that Biden does not have confidence it can pass in this new Congress either. (More on what is included in Biden’s executive order, here.)

The black pins reading “1870” that were sported on the lapels of members of the Congressional Black Caucus commemorate the first death of an unarmed, free Black man at the hands of police in our country. That happened the same year that Black men first got the right to vote. None of what we are seeing today is a new phenomenon.

Biden was restrained and surprisingly low-key when he discussed the Supreme Court’s decision and the Republican Party’s ongoing commitment to taking away women’s rights to control their own bodies and make their own decisions, free of government interference. It was almost with resignation, an acknowledgment that the worst had happened, that was very sobering. Here, there wasn’t fire, only resolve. “Congress must restore the right that was taken away,” he said, referring to the Dobbs decision that reversed Roe v. Wade. “If Congress passes a national ban, I will veto it.”

Near the end of the speech, Biden shared a story from a father who lost his 20-year-old daughter to a fentanyl overdose and wants to “start a journey towards American recovery.” A shout of “It’s your fault” marred the moment, prompting even Speaker McCarthy to shush the outburst. Again, Biden handled it flawlessly, smiling patiently with a bless-your-heart look on his face, pausing a shade longer than necessary before he continued, without so much as a word to dignify the interruption.

Joe Biden does not deliver his speeches with the same oratory, the meter and timing of a Barack Obama. But then, who does? The speech was still a wow. It was just over an hour and 20 minutes of challenge and fire, and moral certainty, and competence and optimism. This was a powerful speech from the heart, one that exceeded expectations. Yes, Biden cares about bringing back infrastructure and making insulin affordable. He is also unafraid to say the difficult things that too many people want to gloss over in this era of Trump fatigue and demand that the country come along with him on the mission. “Uphold rule of law.” “No safe harbor for extremism.” “Democracy must not be a partisan issue. It’s an American issue.” This is the moment when our generation has to defend democracy, Biden told the audience: “We are not bystanders.”

One hopes Biden’s optimism about Americans will be infectious. While State of the Union speeches are often forgotten the moment people leave the chamber, Biden brought the chamber to its feet one last time, saying, “We’re good people.” An interesting choice, he delayed the traditional opening phrase of the speech for its end: “Because the soul of this nation is strong, because the backbone of this nation is strong, because the people of this nation are strong, the State of the Union is strong.”

“I’m not new to this place,” he said, looking out on the chamber, but he expressed optimism and repeated what he’s often said—we’re the U.S. of A. and there’s nothing we can’t do.

In a word, this was Joe Biden at his finest. The Democrats clearly loved it, and as the cameras cut to the Republican members of Congress, there appeared to be begrudging admiration, even on the faces of Biden’s staunch opponents like Ted Cruz. Republicans (even if they decline to concede certain elections) know when they’ve been beaten, and they knew it tonight. Of course, this is only an early skirmish in the prolonged fight for 2024.

Nonetheless, even with the State of the Union speech in the offing, Democrats continued to march forward. Barely an hour and a half before Biden began speaking, the Senate advanced the nomination of South Carolina Judge DeAndrea Benjamin to serve on the 4th Circuit Court of Appeals, which hears appeals from the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia. She'll be the 12th Black woman confirmed to a federal circuit court since Biden took office. By comparison, during Trump’s time in office, he did not nominate a single Black person to a circuit court. Democrats continue to walk the walk.

It was a good night.

We’re in this together,

Joyce