Fact Checking Joe Biden’s Address to Congress

President Joe Biden addressed a joint session of Congress last Wednesday. During his speech, the president made a number of misleading and inaccurate statements. Here’s a breakdown of Biden’s falsehoods:

While discussing the state of the economy, Biden took a moment to criticize the tax cuts passed by his predecessor, saying: “Look, the big tax cut of 2017. Remember, it was supposed to pay for itself—that was how it was sold—and generate vast economic growth. Instead, it added $2 trillion to the deficit. It was a huge windfall for corporate America and those at the very top. Instead of using the tax saving to raise wages and invest in research and development, it poured billions of dollars into the pockets of C.E.O.s.”

The Congressional Budget Office did estimate that the Tax Cuts and Jobs Act of 2017 would add $1.9 trillion to the deficit over the next 10 years. But Biden is incorrect to say that the tax cuts helped only“corporate America and those at the very top.” The Tax Policy Center—a non-partisan think tank—found that while the tax cuts did benefit the wealthy, it “would reduce taxes on average for all income groups.” In fact, according to their analysis 80.4 percent of taxpayers experienced a tax cut thanks to the bill, with those in the lower quintile—with an income of less than $25,000—receiving an average cut of $60 (0.4 percent of after-tax income), in the middle quintile—$49,000 to $86,000—receiving an average cut of $900 (1.6 percent of after-tax income), and in the upper quintile—$308,000 to $733,000—receiving an average cut of $13,500 (4.1 percent of after-tax income). The Tax Policy Center’s report on the matter estimated that, “Taxpayers in the top 1 percent of the income distribution (those with income more than $733,000) would receive an average cut of $51,000,or 3.4 percent of after-tax income.” As Manhattan Institute senior fellow Brian Riedl has noted, this isn’t very surprising: Any broad tax reform is going to disproportionately affect the highest earners as they pay a larger share of their income in taxes and, consequently, a large percentage of tax revenue. Even as the rich benefited, so too did most other Americans. As the New York Timesreported in 2019, these projections bore out. “The vast majority of people did get a tax cut,” said Nathan Rigney, an analyst at H&R Block’s Tax Institute told the Times.

Biden further claimed: “Twenty million Americans lost their job in the pandemic, working- and middle-class Americans. At the same time, roughly 650 billionaires in America saw their net worth increase by more than $1 trillion, in the same exact period. Let me say it again: 650 people increased their wealth by more than $1 trillion during this pandemic and they’re now worth more than $4 trillion.” Biden is correct that 20 million Americans lost jobs at the pandemic’s worst point, though the job market has improved since then. But Biden’s claim about billionaire wealth is deeply misleading: while their wealth has increased during the pandemic, Biden fails to take into account the losses they took at the start of the pandemic. According to analysis by the Americans for Tax Fairness and Institute for Policy Studies, American billionaires’ wealth increased by $1 trillion from mid-March 2020. The stock market dropped by 944 points between February 20, 2020 and March 17, 2020. The estimate that produces the $1 trillion number begins on March 18, 2020. When looking at increases over the past two years instead of the past year, billionaire wealth has increased by $974 billion, an increase, certainly, but onespread out over a time period twice as long as Biden claimed. 

In a passage about how the “wealthiest” Americans should “pay their fair share,” Biden mentioned that: “A recent study shows that 55 of the nation’s biggest corporations paid zero federal tax last year. Those 55 corporations made in excess of $40 billion in profit.”

A study from the Institute on Taxation and Economic Policy, which describes itself as a “non-profit, nonpartisan tax policy organization,” did report that 55 corporations, such as Nike, FedEx, and Salesforcee did not pay federal income tax last year. 

The study’s authors, Matthew Gardner and Steve Wamhoff also noted that: “The 55 corporations would have paid a collective total of $8.5 billion for the year had they paid that rate on their 2020 income. Instead, they received $3.5 billion in tax rebates.”

While it’s true that a study did state that 55 larger corporations didn’t pay anything in federal tax last year, Douglas Holtz-Eakin, president of the American Action Forum (AAF), told The Dispatch Fact Check that the study itself is “a very misleading presentation.” He noted that the report is based not on tax returns, which are given to the Internal Revenue Service, but instead on financial accounts given to the Securities and Exchange Commission, which he says “are different accounting frameworks and one shouldn’t be used for the other.” 

In a more thorough explanation published on the American Action Forum website, Holtz-Eakin explained the limitations of the study: “The ITEP report is not based on tax returns. Instead, it is an attempt to analyze the Securities and Exchange Commission filings of public U.S. firms and pretend to do their taxes. That’s a tricky thing as financial reports adhere to Generally Accepted Accounting Principles (GAAP) as set forth by the Financial Accounting Standards Board. GAAP or ‘book’ income departs substantially from taxable income on returns.”

Biden also noted that women have suffered particularly high job losses during the coronavirus pandemic: “Two million women have dropped out of the workforce during this pandemic. Two million. And too often, because they couldn’t get the care they needed to care for their child or care for an elderly parent who needs help.” Data from the U.S. Bureau of Labor Statistics shows that figure is actually higher. In February 2020, there were 56,415,000 women over the age of 16 not in the workforce. In March 2021, that number was 59,067,000, meaning despite the gains in employment that have been made in the past few months, there are still 2.65 million fewer women in the workforce than there were pre-pandemic.

Biden claimed at one point that he had “traveled over 17,000 miles with [President Xi Jinping].” This isn’t the first time Biden has made this claim: Glenn Kessler of the Washington Postdebunked it back in February, noting that Biden has met with Xi several times, traveling to China in 2011 and 2013. Xi also came to America in 2012 and 2015 and met with Biden on those occasions. However, the pair have not traveled together. A White House official told Kessler that “This was a reference to the total travel back and forth—both internally in the U.S. and China, and as well as internationally—for meetings they held together. Some travel was in parallel, some was separately to joint destinations.” But even with this math, their time traveling together doesn’t come close to 17,000, with Kessler estimating that number was 3,300 miles if one is generous.

In discussing climate change, Biden stated that “The United States accounts, as all of you know, for less than 15 percent of carbon emissions. The rest of the world accounts for 85 percent.” This is correct, though the lack of detail makes it slightly misleading: While one might assume the United States is the largest emitter in the world, that title actually falls to China, which is responsible for about 30 percent of global carbon emissions. 

Later, during a segment on gun reform, Biden said “[A]nd no amendment to the Constitution is absolute. You can’t yell ‘Fire!’ in a crowded theater.”

First things first: The claim that one cannot yell ‘fire’ in a crowded theater is mostly false.

The origins of this claim come from the Supreme Court decision Schenck v. United States, wherein the court affirmed the conviction of Charles Schenck and Elizabeth Baer for violation of the Espionage Act. Schenck was the secretary of the Socialist Party of America and had distributed pamphlets that publicized his opposition to the World War I draft. 

Justice Oliver Wendell Holmes used the “fire in a theater” remark as an analogy, saying: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic…The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

In an email to The Dispatch Fact Check, Timothy Zick, law professor at William & Mary Law School, explained the use of this metaphor: “The ‘falsely’ part is often omitted. If the theater is on fire, one presumably should yell ‘fire!’ The metaphor was used by Justice Holmes, writing for the court in Schenck v. U.S. (1919), not as a free speech rule or limitation but rather a suggestion that public safety may limit what one can say in certain contexts.” Zick further explained that “[T]hose contexts have since been defined by the Supreme Court as extremely narrow - far narrower than the limits the Court recognized in 1919, when speakers were jailed for opposing the draft. Today you will see the metaphor misquoted and misapplied - to suggest that there are broad limits on freedom of speech. As one commentator has described it, it's something of a ‘lazy cheat.’”

For some additional context it’s worth mentioning that in 1919, in the similar case of Abrams vs. United States Holmes questioned the government’s right to limit speech, as explained by the National Constitution Center. Instead of using “the clear and present danger” standard, he said the state had the ability to limit speech that is “intended to produce clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.”

In Brandenburg v. Ohio in 1969, the “clear and present danger” standard was replaced with the “imminent lawless action,” meaning the state can limit only speech that causes “imminent lawless action,” per the National Constitution Center.

In an interview with The Dispatch Fact Check, Duke University law professor Sarah Ludington explained that circumstances that can foreseeably lead to crisis and panic, may result in legal consequences, but there are many circumstances where you can shout fire in a crowded theater without consequences, legal or otherwise. “The idea of falsely shouting fire in a public theater is that you’re doing something in circumstances where you can foresee that your speech is going to cause people to lead to injury of some sort,” she said. “But in Brandenberg the Supreme Court tightened up that requirement and said that to punish the speaker in that situation, they have to be intending to incite people to take immediate lawless action.” Ludington also reiterated that simply standing up and shouting “fire” in a crowded theater does not meet this standard. 

As for the other part of Biden’s claim that no amendment to the Constitution is absolute, 

Zick added that Biden’s use of the theater metaphor was “unnecessary” to “support the position that the Second Amendment confers no absolute right--the Supreme Court said as much in D.C. v. Heller (2008).”

While talking about firearms, Biden also said: “In the 1990s, we passed universal background checks and a ban on assault weapons and high—capacity magazines that hold 100 rounds that can be fired in seconds. We beat the NRA. Mass shootings and gun violence declined. But in the early 2000s, that law expired and we’ve seen the daily bloodshed since.” Biden is referring to the federal assault weapons bn, which expired in 2004. Contrary to Biden’s suggestion, gun violence did not explode after 2004—in fact the number of firearm murders continued to decline for 10 years afterward, only beginning to increase again in 2014. Biden is correct, however, that mass shootings have occurred more regularly since 2004. Using the FBI’s statistics on active shooter incidents—defined as “as one or more individuals actively engaged in killing or attempting to kill people in a populated area”—there has been a steady increase in mass shootings since 2004, going from four such incidents in 2004 to 20 in 2014 to 27 in 2018. 

Biden also made several claims about immigration. At one point he referred to  “over 11 million undocumented folks, the vast majority who are here overstaying visas.”

Biden overestimated the number of undocumented immigrants who are “overstaying visas.” According to a study from the Center For Migration Studies, a New York-based think tank, published in February 2020, the undocumented population in 2018 was about 10.6 million and about 4 million of those people, who resided in the U.S. in 2018, came between 2010 to 2018. Within that population, the study noted, 2.6 million or 66 percent, overstayed their temporary visas and 1.3 million came into the country legally. The study also noted that “each year since 2010, about two-thirds of all arrivals have been visa overstays.”

Around 5.7 million, or 54 percent of the 10.6 million illegal immigrant population as of 2018, entered across the border and 4.9 million or 46 percent entered with a temporary visa and overstayed that visa. 

In another statement on migration, Biden made a false claim about Trump and “U.S. Strategy for Engagement in Central America:” “When I was vice president, the president asked me to focus on providing the help needed to address the root causes of migration.  And it helped keep people in their own countries instead of being forced to leave. The plan was working, but the last administration decided it was not worth it.”

Much of this statement is false. While it’s true that funding for the “U.S. Strategy for Engagement in Central America” declined under Trump, the plan did not end during the Trump administration. According to the Congressional Research Service from 2016 to 2021, Congress spent $3.6 billion “to implement the U.S. Strategy for Engagement in Central America.” 

Further, according to the Congressional Research Service, Trump temporarily  suspended most foriegn aid to Guatemala, Honduras, and El Salvador in March 2019 because of a “northward flow” of migrants into the area. Per the Congressional Research Service: “The Trump Administration reprogrammed approximately $396 million that Congress had appropriated for Central America in FY2018, reallocating the funds to other foreign policy priorities.The Administration withheld much of the remaining assistance for the Northern Triangle countries for more than a year as it negotiated a series of migration agreements with the Northern Triangle governments.”

Then, however, in October 2019, the Trump administration said that it would once again provide aid to Guatemala, Honduras, and El Salvador, and by June 2020 all aid had been restored. In 2021, Congress appropriated $505.9 million for Central American aid, which as noted by the Congressional Research Service, is $129 million more than Trump had requested.  

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