Judge Thomas Hardiman: Mainstream Conservative Judge on Immigration, Employment

Law360 interviewed me about Judge Thomas Hardiman, an appellate judge from the Third Circuit Court of Appeals (Philadelpha). I share my assessment.

My assessment of Judge Hardiman is limited to employment and immigration cases (i.e., not reproductive rights). Judge Hardiman’s decisions are well explained and written in a neutral tone. They lack Justice Scalia’s tart, expansive, know-it-all prose. His decisions don’t appear to stray beyond the facts, as Justice Alito is prone to do when he engages in dicta to signal the bar to advance Justice Alito’s thinly veiled agenda.

On to some cases.

On immigration, Judge Hardiman’s record is what one would expect from a competent appellate judge. The grounds for reviewing orders from immigration judges are extremely narrow. The fact that Judge Hardiman frequently denies appeals by petitioners for asylum is entirely consistent with how federal appellate judges rule.

Two cases are worth mentioning, however.

In Gjonomadhi v. Attorney General of U.S., 310 Fed.Appx. 495 (3d Cir. 2009), Judge Hardiman disagreed with the immigration judge’s conclusion that an asylum petitioner from Albania had not suffered political persecution. He ruled, “we find that the IJ's conclusion that there is ‘in the record no compelling evidence that the respondent suffered past persecution’ cannot stand.” The point of this case is that Judge Hardiman doesn’t rubber stamp immigration appeals from aliens who have lost deportation cases before immigration judges.

Kwee v. Attorney General U.S., 269 Fed.Appx. 147 (3d Cir. 2008) is another interesting case. Here, Judge Hardiman— who was educated in Catholic universities— upheld a ruling from an immigration judge who ordered removal of a petitioner who alleged a pattern of persecution of ethnic Chinese Catholics in Indonesia. If Judge Hardiman had any personal sympathies for this alien on shared religious beliefs, he nevertheless stuck to the law.

In employment cases, he is a standard issue conservative judge who tends to rule for employers; but in doing so, his rulings stick closely to the law and facts. In EEOC v. Allstate Insurance Co., 778 F.3d 444 (3d Cir. 2015), Judge Hardiman wrote the opinion and ruling that affirmed a district court dismissal of discrimination claims brought by a class 6,200 insurance agents. The plaintiffs claimed that All-State unlawfully converted their status from employment to independent contracting with a discriminatory and coercive waiver. He rejected these theories, stating: “It is hornbook law that employers can require terminated employees to release claims in exchange for benefits to which they would not otherwise be entitled.” Allstate had offered four different options to the plaintiffs. The decision is a mainstream ruling that pushed back against the EEOC’s more expansive theory of discrimination—but notably, the decision did not overturn precedent.

Introducing Dr. Abdulkader Dahhan, MD (Harlan, Kentucky)

My work takes me several times a year to the heart of Appalachia. It is Trump country. Harlan County, for example, voted 84.9% for the president. They likely share his nativist views.

When I visit Harlan, I am struck by this contrast: the population is almost entirely white; but many of their doctors have names that suggest that these professionals are aliens. 

Often, these doctors work here on an H-1B visa. It has stringent requirements—the gist is a professional degree at an accredited university overseas, plus a license in the U.S. to practice medicine. 

Only then is the doctor given permission to travel to the U.S. to be a doctor.

At that, the visa lasts only three years, though it can readily be extended another three years. Many of these doctors love America. They petition for “green card” status, a lengthy and expensive process.

Dr. Dahhan is an MD who lists his pulmonary practice online. I know nothing particular about Dr. Dahhan; but his name suggests the possibility that he is in America on a temporary work visa.
These H-1B visas, by the way, are very common-- and key to note, even with Trump's clarification, H-1B physicians cannot leave the U.S. and regain entry if they are from a nation on the list.

.....

Here is a review from a patient of Dr. Dahhan:

Jan 07, 2016

He is a hometown friendly doctor. He not only treats the patient, but also takes into account if they can afford the prescribed treatment and meds. He and his staff try to help, anyway they can. He is very blunt, but cares deeply. Very intelligent, hands down the smartest doctor around.

Who wouldn’t want Dr. Dahhan as their doctor? If he is from Iran, Iraq or one of five other Muslim nations in the ban, the answer is Donald Trump wants to bar his entry—and bar the entry of any family member of Dr. Dahhan’s in those Muslim nations.

The 84.9% of voters for Trump in Harlan, Kentucky are about to see their medical choices significantly constrained by this ill-considered, bigoted executive order.

The “Racial Storm in 1943”: The Case of Japanese Fishermen

Unlike today, when not a single person from the banned seven Muslim nations has harmed an American on U.S. soil, Japan unleashed a devastating attack on Pearl Harbor.

Many Americans had prejudicial views of Japanese for decades before the attack. The war intensified these feelings.

Japanese citizens and permanent residents were forced out of their homes and into detention camps. During their absence, California passed a law to bar all Japanese from obtaining a commercial fishing license. Bear in mind that commercial fishing was a leading occupation for the Japanese.

The law was amended because some lawmakers feared their ban would be overturned as a violation of the Constitution’s Equal Protection Clause. The discrimination was too obvious, they thought. The rewrite took out Japanese and substituted the term non-citizen. (Compare to today, where President Trump says his immigration ban is not anti-Muslim.)

Torao Takahashi, born in Japan, became a resident of California in 1907. Thirty-six years later—after living lawfully and peaceably in America as a legal, permanent resident (non-citizen), he lost his livelihood by this ban.

Once he sued, California offered the laughable defense that the ban was designed to conserve the fish in the Pacific Ocean to citizens, as though the Japanese were depleting fishing stocks.

The Supreme Court threw out the requirement of citizenship to fish for a living in California.

Here are brief excerpts (quoting):

The statute in question is but one more manifestation of the anti-Japanese fever which has been evident in California in varying degrees since the turn of the century. That fever, of course, is traceable to intolerance (and) unfounded accusations and innuendoes against Japanese fishing crews operating off the coast of California. These fishermen numbered about a thousand and most of them had long resided in that state. It was claimed that they were engaged not only in fishing but in espionage and other illicit activities on behalf of the Japanese Government.

More specifically, these accusations were used to secure the passage of discriminatory fishing legislation.… During the height of this racial storm in 1943, numerous anti-Japanese bills were considered by the California legislators. (The Court described how the law was changed from excluding Japanese to non-citizens)…

We should not blink at the fact that section 990, as now written, is a discriminatory piece of legislation having no relation whatever to any constitutionally cognizable interest of California. It was drawn against a background of racial and economic tension. It is directed in spirit and in effect solely against aliens of Japanese birth. It denies them commercial fishing rights not because they threaten the success of any conservation program, not because their fishing activities constitute a clear and present danger to the welfare of California or of the nation, but only because they are of Japanese stock, a stock which has had the misfortune to arouse antagonism among certain powerful interests. We need but unbutton the seemingly innocent words of section 990 to discover beneath them the very negation of all the ideals of the equal protection clause. No more is necessary to warrant a reversal of the judgment below.

Lessons from Our Chinese Exclusion Act

The U.S. is heading down a familiar path by banning entry from Muslim nations. In the 1870s, a growing tide of Americans turned against Chinese laborers. The Chinese were hated for taking American jobs—primarily gold mining and building a transcontinental railroad.
Like Americans today who won’t work in fruit and vegetable fields doing back-breaking work, most Americans in the 1870s wouldn’t work the jobs that the Chinese did (and did with vigor and gratitude). And they were hated for being so different-- different in language, appearance, diet, and customs.
So, in 1882, America passed a law that excluded ALL Chinese nationals. Like today, that meant that no one could enter from China—if they were on a boat that landed in San Francisco, for example, they were thrown in jail or kept in a brig on the ship until they boarded an outbound vessel. 
This exclusion included Chinese who were born in the U.S.-- people who were visiting China, often to find a wife or husband, before returning to the U.S. (Compare to yesterday when foreign nationals with "permanent legal status" were denied re-entry.)
For the Chinese who remained, they were required to register (see picture above).
That might be a next step for Muslims in America.
Interesting aside: Why do we see Chinese restaurants in so many small towns in America? The Chinese Exclusion Act also prohibited Chinese nationals from being employed. The concept here was to force Chinese to self-deport-- and many left.
However, if the Chinese owned a business, they were exempt. 
So, these industrious people opened two types of businesses all across America: restaurants and laundries. This spared them from deportation. And Americans supported these businesses, putting prejudice aside for a good meal and starched shirt.
Concluding Note: Who was the president who signed the Chinese Exclusion Act into law? He was very popular on that October date in 1882…. Chester Arthur.
How does history remember him? Far less than the people he victimized.
When did the Chinese Exclusion Act end? 1943, with passage of the Magnuson Act.

The law was promoted as the path to economic prosperity—but America suffered the Depression of 1893, a fact that we should remember as head down this path of exclusion.

Retire the Statue of Liberty: Trump’s Refugee Ban

President Trump’s executive order suspending entry to all refugees is a grave rejection of America’s commitment to liberty and sanctuary for the oppressed. 

How is a refugee defined? The U.S. State Department offers this explanation: “A refugee is someone who has fled from his or her home country and cannot return because he or she has a well-founded fear of persecution based on religion, race, nationality, political opinion or membership in a particular social group.”

Do refugees have legal status? Yes. There is a legal mechanism for making this judgment. By definition, refugees are not “illegals.”

How many refugees did the U.S. admit last year? In 2015, the last year for complete data, the total was 69,933. Compare that to the last year of President Bush’s administration: The total in 2008 was 60,091. Since 1975, the U.S. has admitted 3,252,493 refugees.

Is a refugee a citizen? No. There is a different legal process to adjust status to “citizen.”

Can a refugee vote? No.

Where do refugees come from? All over—not just Syria. In the 1990s, the U.S. admitted hundreds of thousands of refugees from the former-Soviet Union and Southeast Asia. With the implosion of Yugoslavia, the U.S. also admitted tens of thousands of refugees the Balkans— primarily Serbs, from Croatia and Bosnia who fled the genocide by the Croatian army. The refugee population shifted around 2000, when Africans fled various ongoing conflicts.

What does this change in policy mean? It means that our national identity has fundamentally changed from being a beacon of hope to the oppressed to an inward-looking, fearful nation. 

What we seem to fear, at the root of all this, is “otherness”—the refugee ban will apply far beyond the Syrian conflict, far beyond ISIS, and cover everyone (except Christians who are fleeing persecution— a group that certainly should be granted asylum, with others).

For statistics, see https://2009-2017.state.gov/j/prm/releases/statistics/251288.htm

The Music We Don’t Hear

A segment of Donald Trump’s support is deeply involved in White Power Music. Steve Bannon's prominence as a senior adviser suggests that this group is substantial in numbers.

To comprehend the deep connection between eugenic ideology and White Power Music, visit the website for National Socialist Punks (N.S.P.), Racial and Political Ideology, available in http://www.nazipunk.8k.com/ideology.html.

Their “Ideology” webpage (see above) is notable for extolling Hitler, Mussulini and other fascists.

I found two quotes apt for our times—both from Nazi leaders. I have emphasized the connections that seem to relate to the profound change we are witnessing—change that goes beyond reversing Obamacare and overhauling the tax code.

*********

"Revolutions are spiritual acts. They appear first in people, then in politics and the economy. New people form new structures. The transformation we want is first of all spiritual; that will necessarily change the way things are."

-Joseph Goebbels

"The universalists, the idealists, the Utopians all aim too high (now I understand why Michelle Obama’s speech missed the mark). They give promises of an unattainable paradise, and by doing so they deceive mankind. Whatever label they wear, whether they call themselves Christians, Communists, humanitarians, whether they are merely sincere but stupid or wire-pullers and cynics, they are all makers of slaves. I myself have always kept my eye fixed on a paradise which, in the nature of things, lies well within our reach."

-Adolf Hitler

Are You Into the “White Power Music Scene”?

Presidential advisor Steve Bannon said yesterday in the New York Times, “The elite media got it dead wrong, 100 percent dead wrong.” Bannon is on to something. Mainstream America doesn’t fully understand the wellsprings of hate and racial supremacy that helped Trump win.

My study on white identity groups in American workplaces has me learning the types of things that mainstream media doesn’t cover.

Here’s an example: There is a “White People Music (WPM) Scene.” It has been studied and reported in Robert Futrell, et al., “Understanding Music in Movements: The White Power Music Scene,” Sociological Quarterly (Vol 47), pp. 275-304 (2016).

Summarizing: The study analyzes how the Aryan music scene fosters a sense of purpose and belonging to people who practice racial exclusion. This study shows how participants develop strong feelings of dignity, pride, pleasure, love, kinship, and fellowship through WPM music events. WPM draws participants from the KKK, Christian Identity sects, neo-Nazis, and Aryan skinheads.

Now quoting:

Aryan music is one of the most pervasive means of racist expression among both veteran and newly recruited WPM activists across all branches. Many WPM gatherings include Aryan music produced by more than 100 U.S. white power bands and more than 200 bands in 22 countries.

Two of the most notorious white power organizations—The National Alliance and Hammerskin Nation—are closely tied to the two most prominent white power recording companies, Resistance Records and Free Your Mind Productions (formerly Panzerfaust Records). Their expressed goal is to create alternatives to mainstream music genres by producing music that articulates Aryan ideals and is linked to occasions and experiences in which the WPM is promoted.

There are many styles of white power music: rock, heavy metal, and country and western are the most common, but techno and Aryan folk genres are also emerging. While each genre claims specific stylistic distinctions, the lyrical themes in each reflect the fundamental doctrines common to most movement groups: Aryan nationalism, white power, race war, anti-Semitism, anti-immigration, anti-race-mixing, and white victimization. Examples of doctrinaire song titles and lyrics by two of the most popular white power bands include: Race and Nation by Skrewdriver  ….

(Lyrics)… I believe in the White race, A race apart, We've got a mile start, I believe in my country, It's where I belong, It's where I'll stay.
Chorus: For my race and nation, Race and nation, Race and nation, Race and nation. Hate Train Rolling by Bound for Glory, Bound for Glory. Hate Train Rolling.

Chorus: Hate Train Rolling on the rails of an insane world, Hate Train Rolling a non-stop collision undeterred, Hate Train Rolling leaving wreckage in our path, We're Bound for Glory, Hate Train Rolling, Built to forever last.

Tex-Tax: How Texas Consumers and Businesses Will Pay for Building the Wall

President Trump’s rash idea to slap a 20% tax on imports from Mexico will surely lead to a counter-tariff from Mexico. That’s how trade wars work.

The state with the largest exposure to a trade war with Mexico is, unsurprisingly, Texas. In 2012 (most recent figures I can find), Texas exported 26.4 billion dollars in goods and services to Mexico. That accounted for 35.4% of all U.S. export trade with Mexico. The number of jobs dependent on trade with Mexico— in Texas, alone— was 463,132 (again in 2012).

Texas is also the leading importer of Mexican goods. So, when President Trump announced this afternoon that he’d seek a 20% tax on Mexican goods, the Dallas News blared this headline to its readers:

Trump's 20 percent tax on Mexican imports would force U.S. consumers to pay for border wall

Here’s what this lead story says (quoting below):

WASHINGTON -- The White House floated the idea Thursday of imposing a 20 percent tax on Mexican imports, arguing that would be more than enough to pay for a controversial border wall.

Such a tariff on goods and services would be paid by U.S. consumers and businesses -- people buying anything from avocados and tequila to automobiles.

On its face, that doesn't appear to fulfill President Donald Trump's oft-repeated vow to force Mexico to pay for the barrier, which Mexican leaders have made clear they don't want and certainly won't agree to pay for.

Texas imported $84 billion from Mexico in 2015, suggesting that once the tariff was in place, Texas businesses and consumers would pay an extra $16.8 billion for the same goods and services.

The False God of “Tariff Prosperity”

Judge for yourself parallels between today and Herbert Hoover’s presidency.

Rejection of Globalism: In 1927, the League of Nations' World Economic Conference issued a report that was critical of protectionism in America and elsewhere. Its report stated that “the time has come to put an end to tariffs, and to move in the opposite direction.”

New Technology and Increased Productivity: In the 1920s, rural electrification sharply raised farm productivity (compare to internet applications and disruptions in businesses today). The over-supply of goods led to bad prices for producers in agricultural markets. Farmers were poor and angry.

Campaign Promise of Protectionism: In 1928, Herbert Hoover strongly appealed to Midwest farmers by promising to raise tariffs on agricultural products.

Proposed Law to Impose Tariffs on U.S. Trading Partners: Hoover won, and Republicans maintained comfortable majorities in the House and the Senate during 1928. Hoover then asked Congress for an increase of tariff rates for agricultural goods and a decrease of rates for industrial goods.

Two Republican leaders— Senator Reed Smoot and Representative Willis C. Hawley— proposed a law to raise U.S. tariffs on 20,000 imported goods. They wound up also imposing tariffs on factory-made goods, to the extreme dismay of Henry Ford and other captains of industry.

Experts' Warning against the Law: In May 1930, 1,028 economists signed a petition asking President Hoover to veto the Smoot-Hawley legislation, formally known as the Tariff Act of 1930. Congress and President Hoover ignored these experts.

Reaction to Smoot Hawley: Trading partners threatened to retaliate against the U.S. if the tariff law was enacted. America’s largest trading partner in 1930—Canada—retaliated by imposing new tariffs on 16 products that accounted altogether for around 30% of U.S. exports to Canada.

Canada developed close trade with the British Empire Economic Conference of 1932.

Effects of Tariff Law: By 1932, the U.S. was in a full-scale depression. Everyone was affected—but the impact was gravest for farmers and industrial workers. 
Sadly and ironically, these were the voters who demanded protectionism and got it.

Also in 1932, workers and farmers voted Sen. Smoot and Rep. Hawley out of office.

Toward a Biometric National ID?

Whether America gets there by fact or fancy, the surest way to secure voting against ID fraud is to use biometric data in a national registry. Technovelgy explains that “an iris scan also provides unique biometric data that is very difficult to duplicate and remains the same for a lifetime…. There are ways of encoding the iris scan biometric data in a way that it can be carried around securely in a 'barcode' format." See the picture (the technology converts your scan to a bar code but doesn't affect your eye).

Biometrics are already widely used (these include fingerprints, voice recognition, eye scans and other bio-markers). Examples include banking, university dorms, apartment buildings, workplaces, immigration fast lanes, personal computer security, convicts (probation) and prisoners (jails).

Jamaica uses finger scanning for voter registration.

For some readers, voter fraud might justify this type of national registration. But I disagree, and draw on Ken Sturlin’s law review study, “DNA Without Warrant: Decoding Privacy, Probable Cause and Personhood.” Sturlin concludes his detailed study by saying:

“When the state tinkers with human biology, it tinkers with privacy…. There is a matrix of biological and digital data that can all too easily be linked with a person, without a warrant or authentication….

Man's biological destiny encompasses the future of privacy and personhood. People are information containers with rights, data in being, and so society's expectations of privacy must grow alongside technological innovation and scientific discovery.”

I hope cooler heads prevail in thinking through the implications of dealing with “massive voter fraud.” We might be trading away personal freedoms and opening the gates to national monitoring of our personal movements once we “ID” ourselves. This much I assume: A technology to perfect against voter fraud, in the hands of government, will not stop at the voting booth. 

“President Trump”: My Deceased Mom Is Still Registered to Vote in Cook County … But No One Stole Her Identity to Vote

Until “President Trump” starts acting like a president, I will put his title and name in quotes. This message is directed at “President Trump’s” insane tweet this morning, "I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and ... even, those registered to vote who are dead (and many for a long time).”

To the best of my knowledge, I don’t think my Mom’s voter registration card has been pulled from Cook County records.

“President Trump,” do not dishonor my Mom’s memory by implicating her in massive voter fraud—to do so only magnifies the disgrace that you are. Finally, “President Trump,” just because my Mom is in this picture doesn’t mean that she is alive—nor does it mean I am lying or misleading anyone by posting her picture after she has passed.

Trump's Job Shell Game

President Trump met with CEOs of U.S. car makers. He pledged to cut many regulations—especially environmental regulations— but also pressed them to do more to increase production in the U.S.  

The CEOs all gave vague reassurances to build more in America.

But here’s the more concrete news from GM as reported by an Ohio news station on January 9, 2017:

“LORDSTOWN, Ohio– The General Motors plant in Lordstown is ending its third-shift production on Friday for the foreseeable future, a plant spokesman said on Thursday. The change affects 1,250 salary and hourly employees who work on the Chevrolet Cruze. The plant employs about 4,500 people.”

In a statement, GM said: ‘General Motors today announced initiatives to strengthen and align its production output at key U.S. manufacturing operations. The plans include investing more than $900 million in three facilities – Toledo Transmission Operations, Ohio; Lansing Grand River, Mich.; and Bedford Casting Operations, Ind. – to prepare the facilities for future product programs.

‘In addition, GM also announced plans to align production output with demand for cars built at the Lordstown, Ohio, and Lansing Grand River, Mich. assembly plants. As the customer shift from cars to crossovers and trucks is projected to continue, GM will suspend the 3rd shift of production at both assembly facilities in the first quarter of 2017.’”

Why E-Verify Isn’t a Simple or Free Solution to Illegal Immigration

Soon, the Trump administration is likely to require employers to use the “E-Verify” system, administered by the U.S. citizenship agency. If federal law follows Arizona law, an employer who knowingly refuses to use the system will face the “death penalty”— the loss of legal approval to do business (though this is now only a state power, exercised through charters and license granted by states).

The Cato Institute is a conservative, libertarian think tank—far from ”progressive.” Cato strongly opposes E-Verify. Here is a summary of arguments, by Alex Nowraseth, who takes issue with a policy paper that strongly promotes E-Verify. I now quote from Mr. Nowraseth (in bold):

A recent piece by Mark Krikorian, executive director of the Center for Immigration Studies (CIS), argued for mandatory E-Verify as “an important enforcement tool” and metaphorical “wall” that would prevent the hiring of illegal immigrants. Krikorian did not mention many of the problems with E-Verify so I will do that here after a brief description of the system.

An E-Verify mandate would add another lay on top of the I-9 whereby employers, after collecting I-9 those forms, would enter the information on the form into a government website.  The system compares these data with information held in the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases.  The employee is work authorized if the databases decide that the data are valid.  A flag raised by either database returns a “tentative non-confirmation,” requiring the employee and employer to sort out whatever error has been flagged. 

If the employee and employer cannot sort out the errors then the employer must terminate the new employee through a “final non-confirmation.”

First, Krikorian erroneously labels E-Verify as a “free online system.”  E-Verify is not a gift from heaven, it was created by the federal government and funded by taxpayers.  E-Verify is also not free because of the opportunity cost of the using the system.  The current I-9 form costs employers an estimated 13.48 million man-hours each year.  A national E-Verify mandate would add to that – perhaps substantially.  Those are a lot of hours that employers could otherwise spend on growing their businesses but instead must waste complying with government rules.

Most E-Verify checks do not take much time but 46.5 percent of contested cases in 2012 took DHS eight work days or more to resolve.  During that time, employers are justifiably reluctant to train new employees who might not be work authorized. 

Employers will likely avoid that cost by pre-screening job applicants and rejecting those who come back as tentative non-confirmations.  Workers could thus get rejected from every job they apply for but not know a simple and correctable error in the E-Verify database is the reason. 

Second, E-Verify is ineffective at detecting illegal immigrant workers. On top of that, E-Verify’s accuracy rates are notoriously difficult to judge.  An audit of the system by the firm Westat found that an estimated 54 percent of unauthorized workers were incorrectly found to be work authorized by E-Verify because of rampant document fraud.  E-Verify relies upon the documents presented by the workers themselves to their employer.  Frequently, identity information comes from deceased Americans – a loophole the government seems incapable of closing.  For instance, SSNs for roughly 6.5 million Americans who are 112 years old or older do not have a death date attached which means they can easily be used by illegal workers and nobody would complain.  An illegal worker using the SSN of a deceased American would likely end up work authorized.

Another gap in E-Verify’s wall is far more difficult to fill.  Many employers ignore E-Verify even when it’s mandated, just like they ignore other government immigration enforcement rules. Alabama, Arizona, Mississippi, and South Carolina all mandate usage at the state level, yet usage and enforcement have been lax.  In 2014, only 56 percent of employers in Alabama, 57 percent in Arizona, 43 percent in Mississippi, and 54 percent in South Carolina used E-Verify for new hires despite their state laws mandating that 100 percent of employers must use the system.  Since E-Verify isn’t enforced in states like Arizona currently, we can reasonably assume that there is no hope that it will be well-enforced nationwide.  E-Verify, like every enforcement system, must actually be enforced by people and these states show about as little interest in doing so as the federal government does in enforcing I-9 requirements.  Any of the proposed national E-Verify mandates will not change that dynamic.   

Third, some Americans would be kicked out of the labor market due to E-Verify.  E-Verify’s accuracy problems mean that Americans are and will continue to be barred from work due to false positives.  Roughly 0.15 percent of all E-Verify queries result in a false “final non-confirmation.”  While that is an admittedly small percentage, if applied nationwide to an American labor pool of roughly 125 million workers, it would result in 187,500 wrongly issued FNCs to American workers each year.

Fourth, E-Verify is supposed to help curb illegal immigration by turning off the jobs magnet.  In the real world, E-Verify barely affects the wages of suspected illegal immigrants. 

Fifth, … expanding E-Verify through the Legal Workforce Act would, per the CBO, cost the federal government $635 million from 2018 to 2023 while imposing $10 million in annual compliance costs on states and localities. The CBO also estimates a minimum $200 million cost to the private sector following passage, as employers are forced to verify an additional 50 million employees.  That’s a high price tag for a supposedly “free” program.

Sixth, government identity requirements for employment incentivize identity theft.  A huge cottage industry of forged identity documents sprung up after the government first mandated that employers check the identification of new hires in 1986. 

Seventh, E-Verify’s errors and loopholes mean that the system will be quickly rendered useless if it is ever mandated universally – which is the most positive thing I’ll say about E-Verify until it is significantly reformed.  The government will not react to E-Verify’s failure by throwing up their hands and calling it a day.  The government would then integrate other biometric information like fingerprints or perhaps even DNA into a national identity system to close the E-Verify loopholes in an attempt to make the system more effective.  

“This Little Piggy Went to Market … And This Little Piggy Cried Wee Wee Wee All the Way Home”

Midwest states delivered swing votes for Donald Trump. Today, with the formal end to U.S. participation in the Trans-Pacific Partnership (TPP), America is positioning itself to lose export markets for hog producers. Soon, NAFTA will be scrapped. Here, it is pertinent to note that Mexico is 83% of the U.S. export market for pork products, and Asian nations make up most of the rest.

According to “AgWeb,” here are the top 10 states for pork production (annualized export sales, 2015). All, except Illinois, voted for Trump.  

Iowa - $4.2 billion

Illinois - $1.54 billion

Minnesota - $1.47 billion

North Carolina - $1.46 billion

Indiana - $1.04 billion

Oklahoma - $952.7 million

Missouri - $791 million

Nebraska - $657.5 million

Wisconsin - $605.2 million

Ohio - $542.7 million

Tearing up flawed and imbalanced trade agreements feels good in the moment. However, the hog farmers who voted for Trump were winners in these trade deals. It will be interesting to see how they respond when their little piggies cry wee wee wee all the way home to rural America.

Did You March on Saturday? What Breitbart Says

These days, I am reading Breitbart along with the New York Times and Wall Street Journal to see who is telling the truth and who is telling lies.

In a lead Breitbart story today, “Senior Writer” Joel Pollak has a story titled, “FAKE NEWS: THREE MAINSTREAM MEDIA LIES ON TRUMP’S FIRST DAY.”

To begin, no mainstream journalist writes quotes in all capital letters. If you’re secure about the facts of your story, you don’t need to scream to people. 

But you would use all caps if you were insecure about the story you were telling, and if you were using your headline to bully your reader into believing you.

In the red below, I quote (with redactions):

Lie #1: President Trump was focused on the crowd size at the inauguration. He mentioned it in passing in his speech at the CIA, and Press Secretary Sean Spicer took the media to task for trying to downplay attendance figures….

Lie #2: President Trump insulted the CIA. Extending the faux outrage at Lie #1, the mainstream media criticized Trump for talking about crowd size in front of the CIA’s memorial wall for agents who have died in the course of their duties….

Lie #3: The anti-Trump protests in Washington, D.C. were important. The protests were nothing more than the venting of outrage at Trump’s election. For all the talk of “women’s rights,” there was nothing particular to point to that Trump had done about anything relating to women. The demonstration was large, but also disorganized, as well as vulgar, and protesters left heaps of trash over the various routes they took, including protest signs abandoned at Union Station as they left the capital.

I marched on Saturday in Champaign, Illinois. I can’t remember a more peaceful, uplifting public assembly.

Mr. Pollak, my family was nearly destroyed by a Nazi propaganda machine that would have been proud of your twisted work. But at the end of the war, Hitler’s elaborate “lie machinery” was thoroughly destroyed and discredited.

We will read your lies; and your lies will inspire us to act for goodness.

This story will be tweeted to Mr. Pollak on Twitter at @joelpollak.

We’re Running Out of TPP! What's Plan B?

TPP is the Trans-Pacific Partnership. It’s ready for ratification, but President Trump campaigned vigorously on opposing it. The trade agreement became so toxic that Hillary Clinton reversed her support of it.

Michael Froman is the now-retired U.S. Trade Representative who led negotiations for the U.S.

Here is a summary of his speech in June 2016 to the Council on Foreign Relations:

What is TPP? A trade agreement among 12 countries representing about 40 percent of the global economy.

What does TPP do? “The agreement eliminates traditional trade barriers, like tariffs—18,000 tariffs on American exports; completely eliminates tariffs on manufactured products; eliminates, or greatly reduces, or opens up markets to a wide range of agricultural trade as well.”

What does TPP do for labor and the environment? “The agreement raises labor and environmental standards around the world to the highest level ever, and these are fully enforceable standards; that it’s the first trade agreement to really take on the digital economy, issues around e-commerce and the free flow of data across borders; pushing back on new forms of digital protectionism, with countries trying to put walls around the internet or require companies to move their infrastructure to a country in order to serve that country. It takes a major step forward in putting disciplines on state-owned enterprises, so that when government-owned corporations compete with our private firms, they have to do so on a fair and level playing field or we can impose sanctions on that country."

Why is TPP important? “And so it’s very important because this region, the Asia-Pacific region, it’s currently about a billion middle-class consumers, expected to grow to 3 billion middle-class consumers by 2030, some of the largest, fastest growing economies in the world. We need to be part of those markets. And we want to make sure that the rules of the road for that region reflect our interests and our values, and that we’re not ceding that role to others, whether it’s China or others. And so that’s why it’s so important that we get it done, and that we get it done this year.”

In recent days, China has said it wishes to step in with these Asian nations and take America’s place as a TPP partner (with its own rules). China, under Obama’s leadership, had been excluded from TPP. This was Obama’s method for challenging China, rather than confronting the "One China" policy. 

What’s the Connection between Horse Manure and Freedom of Religion?

The Wall Street Journal reports on an interesting and serious controversy in Auburn, Kentucky. About a decade ago, an Amish community settled in the area. Friction developed over horse manure that was deposited on city streets. Recently, the town amended its animal waste ordinances (think dog poop here) to require horses on city streets to wear a shield that collects horse manure before it hits the ground.

Before we talk about the legalities, let’s clear up some points. 

The Amish carry pails to scoop up their horse manure. They’re not 100% successful, but they make an effort. 

More fundamentally, on religious grounds the Amish reject “worldly things.” They interpret this to mean they cannot use horse diapers. 

(As an aside, I wondered why a pail is not worldly but a diaper is … but in my faith, there are many illogical practices that are perfectly rational in a Jewish context.)

Another point: Some Amish have refused to pay fines and have served time in jail.

Legalities: The Religious Freedom and Restoration Act was passed in 1993. It was amended after Oregon denied unemployment compensation to two Native Americans who were fired for using peyote in a religious ceremony. Congress, therefore, broadened the law in 1997. The gist of the law is that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

For example: private employers, such as Hobby Lobby, have successfully used RFRA to block the ACA requirement to fund contraception. Hobby Lobby owners stressed that the health care law could not compel them as business operators to violate their religious tenets.

The law has widening applicability, and it frequently runs into boundaries over public laws against discrimination, as well as educational and health laws.

So, whatever we make of the horse manure case—and its resolution or lack thereof— it signifies future tensions between public and religious values. And that prediction is not BS.

"Family Values” Lawyer Barred from Federal Court for Vulgarity, Intimidation of Female Attorney

The attorney in this photo is Jason Craddock, Sr. According to the Chicago Tribune (source for this post), most of his practice involves "litigating pro-life, pro-Christian and pro-family values cases."

Courtney Lindbert is opposing counsel in an employment discrimination case involving Mr. Craddock. Addressing the court, she complained that Mr. Craddock missed several filing deadlines.

Away from court, Mr. Craddock sent Ms. Lindbert an email stating, “Cuntney Lindbitch … Your days of filing unnecessary, frivolous motions and abusing and harassing attorneys with disabilities will come to an end.” (Mr. Craddock told the court he could not comply with deadlines because he suffers from severe attention deficit hyperactivity disorder.)

Adding insult, his email signature also “referenced two Biblical passages: Proverbs 21:30, which reads "There is no wisdom, no insight, no plan that can succeed against the Lord," and John 3:3, a passage about being reborn through baptism in order to enter the kingdom of God (Chicago Tribune).”

Mr. Craddock has been suspended from practicing in federal court for a year, and instructed to seek anger management therapy. The penalty was imposed by a panel of federal judges. They weren’t being “PC.” Their judgment was that Mr. Craddock "intended to intimidate" opposing counsel in her representation of her client.

“Smart” ALEC?

A hidden swamp has come to light during the Trump campaign and transition. ALEC is the American Legislative Exchange Council. It is comprised of large corporate sponsors who fashion model legislation on a wide range of issues. 

Then, they promote their legislation in shadowy umbrella group called the State Policy Network. That network is organized as independent-sounding think tanks. 

Next, conservative lawmakers draw ideas from these “experts,” who are merely covering the tracks of the corporate sponsors.

Is that smart ALEC? 

Since this swampy arrangement has come to light, Ford, Enterprise, and Expedia have ended their participation in ALEC.

Here are some “smart ALEC” ideas:

Under the guise of “liberty,” redefine ethics legislation so that donors to political candidates do not have to be identified.

Under the guise of worker freedom, require every union to be re-certified in an annual election. Putting aside unions, how many employers would welcome the divisive nature of these annual elections?

Under the guise of privatizing education, require all public school districts to meet costly requirements for computerized education, with emphasis on substituting online lessons for actual teachers.

For more, see Mayor Steve Arnold’s article in truthout .Click on this.

And thank you, Janet, for suggesting this post! Picture Credit: Smart Aleck Academia

What Is Prejudice? “I Think It’s When Somebody’s Sick”

This quote is the signature lyric, set to a young child’s voice in "Abraham, Martin and John." This 1968 song is deeply melancholy, a tribute to Abraham Lincoln, Martin Luther King, Jr., John F. Kennedy and Robert F. Kennedy-- all victims of an assassin's bullet, and all icons of social change. The song weaves music and ethereal sound tracks from the turbulent 1960s.  

The song writer, Dick Holler (recording by Dion, produced by Tom Clay) was motivated by the nearly back-to-back assassinations of Martin Luther King Jr. and Robert F. Kennedy. Both were soaring figures for social and legal change that is now under assault. 

If you’re a child of the 1960s or earlier, you owe it to yourself to listen again and reflect. 

If you’re a child of the 1970s or later, you owe it to yourself to listen—perhaps for the first time— and reflect on the difficult time in the 1960s, which we, as a nation, endured. Click here to listen. 

How Employers Came to Be Main Source of Health Insurance: Time to Lower Their Burden

You probably have health insurance through your employer. How did that become a responsibility for employers? As I explain in a forthcoming research article (quoting for brevity): 

“The economy’s shift from hourly jobs to gigs has much deeper roots than mobile phone technology. The employment relationship began to erode in World War II with wage and strike controls. These government restraints, along with collective bargaining and tax incentives, caused employers to add fringe benefits to offset their inability to raise wages.  Thus began an inexorable rise in employer-paid benefits. Health insurance and pensions  were the most costly “fringes.” By the late 1980s, employers scaled back on these benefits because of spiraling costs.”

In other words, employers couldn’t give worker a raise—so that added “fringe benefits,” such as health insurance.

Today, that cost is so burdensome that it’s fundamentally eroding the basic employment relationship.

So, why not decrease the employer responsibility and put health insurance more on a risk model.

Consider this: “The American Diabetes Association recommends that people should avoid intake of sugar-sweetened beverages to help prevent diabetes.” 

Today, sugar taxes are popping up in some cities; but why not have a national sugar tax that is used for funding access to health insurance and use the money to decrease the employer burden?

Ditto high-fat foods. You want to eat this quintuple patty cheeseburger with fatty fries?

Go ahead—just pay as you go to fund the increased possibility that you will eventually need heart bypass, or blood pressure pills and the like. Or, stop the risky eating habit, improve your chances for being more healthy, and lower your risk for drawing on health insurance-- and avoid the tax.

And by the way, even with steep taxes on cirgarettes, the Centers for Disease Control (CDC) and Prevention noted in 2015, “The percentage of U.S. adults who smoke cigarettes declined from 20.9 percent in 2005 to 16.8 percent in 2014. Cigarette smoking was significantly lower in 2014 (16.8 percent) than in 2013 (17.8 percent).” 

That’s still a lot of smokers! Add another tax, please, and dedicate it to a national health insurance fund.

In other words: If employers don’t do anything to add to our risk for bad health and costly treatment, why are they always on the hook for health insurance? Pick a few risky behaviors that add up to a lot of costs; and let the people who enjoy these risky and purely voluntary behaviors begin to pay a greater share of the risk they are asking employers to subsidize.

Killing A Dream: The Racist Who Murdered MLK

Time Magazine

MLK Day is a time to remember the best ambitions of Dr. King’s leadership in the civil rights movement.

It is also a day to remember who killed him-- and why.

James Earl Ray assassinated Dr. King. A book written by George McMillan provides research into Ray and two other infamous assassins, Sirhan Sirhan and Lee Harvey Oswald.

Here is a brief except from Anthony Lewis’s book review, “How a leader was killed, an A‐bomb made, a corporation acquired,” New York Times (Oct. 31, 1876) (quoting in red).

A friend and sometime partner in crime, Walter Rife, told McMillan: “Jim … was unreasonable in his hatred for niggers. He hated to see them breathe. If you pressed it, he'd get violent in a conversation. He hated them!”

His feelings were not confined to blacks. During World War II he expressed admiration for the Nazis. His brother Jerry has said: ‘What appealed to Jimmy … about Hitler was that he would make the U.S. an all‐white country, no Jews or Negroes. He would be a strong leader who would just do what was right, and that was it. Not try to please everybody like Roosevelt.”

How Much Can Trump Silence the Press? “This is of the Essence of Censorship.”

Donald Trump attacked CNN as fake media, and is now considering ousting the press from its quarters in the White House. He can pick these fights; but when a Fox reporter came to CNN’s defense as legitimate news, that signaled the institutional nature of Trump’s assault on the media.

Will Trump and the Republican Congress consider broader restraints on free press? 

If so, they might revisit Near v. Minnesota, a case that broadened protections of free press but only by a 5-4 vote in 1931.

Jay Near published The Saturday Press. The paper had an anti-Semitic streak. It also published exposes against local politicians. The paper angered politicians and citizens.

The paper was silenced by a state law, known as the Minnesota Gag Law of 1925. It was also called the Public Nuisance Law.

The Near decision ruled that the state had no power to prohibit publication of the paper. The gag law violated the First Amendment.

Here is a quote from a key passage:

"If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter — in particular that the matter consists of charges against public officers of official dereliction — and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship.”

....

Here's hoping Trump doesn't go near this cornerstone of freedom.

How Do Frog Eyes Relate to Trump’s Russian Diplomacy?

Years ago, a colleague in biochemistry talked excitedly about his research here on frog eyes. I dismissed this until he explained that frogs have the most sensitive eye anatomy known to researchers. A frog’s eye can detect a single photon, the smallest unit of light. The implication? If we understand what makes a frog’s eye work, we might develop technologies to alleviate human blindness.

In the legal academy, Prof. Kevin M. Kearney published a seemingly obscure law review article, “Private Citizens in Foreign Affairs: A Constitutional Analysis," Emory Law Journal (1987). He studied the origins of the Logan Act, a 1799 law that makes it a criminal offense for a private citizen to conduct diplomacy for the United States. The point of the law is to ensure that private citizens do not negotiate deals that undermine our laws.

There is news today that retired-Gen. Mike Flynn communicated with a high level Russian official the day that President Obama imposed new sanctions for interfering with our election. Flynn and the Russian official don’t deny that they talked—they say they were merely exchanging Christmas and New Year’s best wishes. The timing and context suggest that they were possibly discussing removal of sanctions.

Like my biochemist colleague, Prof. Kearney’s somewhat obscure research on the Logan Act may help us see current events more clearly. And possibly, a special prosecutor will be named to see if Gen. Flynn— who is a private citizen until January 20^th— violated the Logan Act.

“To be white is to be a striver,” “Hail Trump,” … and More Hate from Richard Spencer

Who is Richard Spencer? A leader in the white identity movement, president of the National Policy Institute, a white nationalist think-tank.

Why should you watch this YouTube clip (below)? You’ll have to click to see why.

What do viewers think of his speech? There have been 2.4 million views; 20,046 disapprovals, 2,999 approvals.

What should you do? That’s up to you.

Click here to see.

The Next Big Labor Case for the Supreme Court

Have you signed an arbitration agreement with your employer? 

If you have, you didn’t negotiate it. The agreement requires you to go to arbitration, and waive your right to sue in court, over employment matters. The contract likely has a class-action waiver, too. That means if you and others have similar complaints, you can’t bundle them—like you can in court (if the court approves).

Why would you want a class action option? Trials often cost more than $50,000 in attorney’s fees.

But if your claim is bundled, attorneys are more likely to sue in your behalf. Often, they do this on a contingency fee basis. If you lose, they get nothing. If you win, they get 30% plus costs. That comes out of your “win” (judgment or settlement).

Three federal appeals courts have ruled on the validity of these mandatory class action waivers. Two say these agreements cannot be enforced. One says it can. The Supreme Court will decide this issue.

Picture Credit: Kentucky Law Journal

Tightest Knot Ever: Why Trump and Fox Should Value Science

President-elect Trump made “law and order” a centerpiece of his campaign, as well as the projection of American military power. How to achieve those goals is a matter of debate. At some point, however, the good guys—to use Trump’s terms— need better protection than the bad guys.

So, that means we’re talking about body armor. In today’s realm of combat, lightweight materials that are iron-clad are the best suited for some of these high-risk situations.

Enter scientists—the people who are ripped regularly by Fox News, and particularly Sean Hannity— for their “fake science.”

In Science—a prestigious academic journal— a team of chemists has published research showing how to manipulate molecules to create the tightest knot ever. It’s a huge advance in the field of “molecular weaving.” Among its most likely applications will be great improvements in body armor.

Other applications will be discovered, if the right stops with its steady beat-down of "fake science."

The Sad Truth About U.S. Manufacturing Jobs: They Stink

The picture you see is Honda’s immense, fairly new, glimmering auto plant in Greensburg, Indiana. It’s located on I-74, between Indianapolis and Cincinnati. It’s the jewel of every state’s corporate recruitment effort—and the type of jobs that “will make America great again.”

No, they won’t—and here’s an explanation.

First, let’s say you’re unemployed and want a job there. You cannot apply for work directly with Honda. 

Like most U.S. manufacturers, they source the hiring to staffing companies. Basically, these firms do the first cut in the labor market. 

You might actually work at Honda for years—but not as their employee. In the case of Honda, you’ll be working—if hired, at all— for Elwood Staffing.

Here’s how they are currently hiring:

Assembly Workers

Elwood Staffing - 650 reviews - Greensburg, IN

$14.75 an hour

Get your foot in the door at Honda in Greensburg. County within the state of Indiana or Hamilton, Butler or Preble. LOOKING FOR A CAREER OPPORTUNITY?...

Now, let’s go to Greensburg's own website that trumpets its economic statistics:

I quote below. The stats green show that Greensburg does better than the average for a U.S. city. The stats in red show that Greensburg does worse than the average for a city in the U.S.:

The unemployment rate in Greensburg, Indiana, is 3.80%, with job growth of 2.24%. Future job growth over the next ten years is predicted to be 40.68%.

Greensburg, Indiana Income and Salaries

The income per capita is $21,076, which includes all adults and children. The median household income is $45,363.

  ECONOMY                                        Greensburg, Indiana                      U.S.

  Unemployment Rate                  3.80%                                                    5.20%

  Recent Job Growth                       2.24%                                                    1.59%

  Income per Cap.                             $21,076                                 $28,555

  Household Income                       $45,363                                 $53,482

  Family Median Income               $50,808                                 $65,443

****

So, here’s the bottom line. If you want a large factory in your town, you’ll need to give the company a sweet tax and incentives deal to locate there because states and cities all over American will compete against you. 

You’ll have low unemployment—and your household income will lag far behind the average in the U.S. 

That’s not going to make America great again.

The Role of Compassion in the Law

Two important legal stories are buried in today’s news. 

One involves an Air Force ruling that changed the “undesirable” discharge of a gay sergeant— today, 91 years old— so that it now is an “honorable discharge.”

The other news story relates to a 32 year-old women who sought medical care at a hospital after attempting an at-home abortion in September 2015.

She was arrested and initially charged with attempted murder. Under an agreement reached with prosecutors, she pleaded guilty this week to attempted procurement of a miscarriage and was given credit for time served, a year in prison.

Here are synopses, quoting from the New York Times:

For more than half a century, Hubert Edward Spires has lived with the painful memory of being kicked out of the Air Force as a young gay sergeant in the 1940s. The word “undesirable” was printed on his discharge records. But now, at 91, Mr. Spires said he can finally be at peace with that part of his life. On Friday, he was awakened by a phone call to his Connecticut home and learned that the Air Force Board for the Correction of Military Records had agreed to change his status. This time, his discharge would be described as “honorable.” “It was a long haul,” Mr. Spires said on Tuesday in phone call from his home in Norwalk. “I got the confirmation that I had been looking for.” Click here for more.

…..

A Tennessee woman jailed for more than a year after trying to use a coat hanger to abort her 24-week-old fetus pleaded guilty on Monday to one felony count in exchange for her immediate release from jail. The woman, Anna Yocca, 32, sought medical care at a hospital after attempting the at-home abortion in September 2015, according to National Advocates for Pregnant Women, an advocacy group that helped with her defense. She was later arrested and was initially charged with attempted murder. Under an agreement reached with prosecutors, she pleaded guilty this week to attempted procurement of a miscarriage and was given credit for time served. Her case has alarmed abortion-rights advocates concerned by increasingly strict state abortion laws and the election of Donald J. Trump, who has expressed support for overturning Roe v. Wade and once said during the presidential campaign that women who have abortions should be punished.  Click here for more.

More Anti-Science: Trump Asks Anti-Vaxxer to Head New Panel on Vaccine Safety

You’re looking at a child who has smallpox. The disease has a 30% mortality rate. Those who survive have hideous health problems for the rest of their lives. 

The disease was eradicated in the 1970s by a worldwide vaccination program. Older readers of this post will likely have had a smallpox vaccine, and a small scar to show for it.

I researched the legalities of requiring first responders to be vaccinated for smallpox in my 2005 Emory Law Journal article, “Pox Americana? Vaccinating More Emergency Doctors for Smallpox: A Law and Economics Approach to Work Conditions.”

I was prompted to do this research because Al-Qaida had tried to acquire smallpox from a lab. There are only two labs in the world that keep the smallpox virus alive. One is in the U.S. off Long Isalnd.

The other … is located in Russia, “our friend,” according to Donald Trump.

The U.S. no longer allows for smallpox vaccination—and that’s the point of my research, to make the case at least for limited use of the vaccine to ensure that if there is a bio-terror attack, we have a first line of defense.

The U.S. will soon have a task force to recommend fewer vaccines (For Trump's outreach to Robert F. Kennedy, Jr., an anti-vaxxer, click here). And we have a complicated and tense relationship with Russia. The world is not becoming safer.

....

We also an incoming president who disregards the intelligence community.

Here is an excerpt from Dark Winter, a simulated smallpox attack conducted by our military and intelligence communities after 9/11. 

It could take days, or even weeks, for the symptoms of a biological agent to begin to manifest themselves. In the case of a BW [bio-weapon] attack, the first responder, the very tip of the spear, is likely to be a primary care physician, healthcare provider. . . . Given the unheralded nature of these silent killers, it would fall upon the public health and medical communities to detect the attack, contain the incident, and treat the victims. The delayed onset of symptoms, coupled with the fact that it is difficult to discern a deliberate BW attack like small pox from a naturally occurring infectious disease outbreak, makes attribution and identification of the perpetrators exceedingly difficult. Moreover, this type of attack can wreak havoc with the public, which must confront fear of the unknown.