Trump’s “Broken Glass” Problem: Why Jewish Cemeteries Matter

A group that tracks hate crimes reports today: “In a three-month period after Trump’s November election, the Southern Poverty Law Center recorded 1,372 bias incidents, including anonymous bomb threats being called in to Jewish Community Centers in 24 states.”

This post is for friends and neighbors who want to lighten up on President Trump for his timid condemnation of rising anti-Semitism.

Whether it’s the Holocaust, Russian pogroms, the Spanish Inquisition or other state-sanctioned attacks on Jews, there is a clear pattern. First, divide your nation into “us” and “them.” Second, allow attacks on Jewish property. Third— and it often takes years— isolate Jews. It has often grown much worse from there.

Kristallnacht was a key turning point in Nazi Germany’s assault on Jews.

It began with a deportation order: German authorities expelled thousands of Jews of Polish citizenship living in Germany. Herschel Grynszpan, a 17-year-old Polish Jew who lived in Paris, was aggrieved that his parents were deported to Poland—but Poland denied these Jews entry, so his parents were reduced to living in a squalid refugee camp on the border. He assassinated a German diplomat on November 7, 1938.

Joseph Goebbels—Hitler’s right-hand man for propaganda— suggested, without directly saying so, that a Jewish conspiracy led to the assassination. He then said: “the Führer has decided that … demonstrations should not be prepared or organized by the Party, but insofar as they erupt spontaneously, they are not to be hampered.”

Here is how the Holocaust Museum summarizes Kristallnacht, the Night of Broken Glass, which occurred after Goebbel’s “whistle”:

"On the night November 9 … rioters destroyed 267 synagogues throughout Germany, Austria, and the Sudetenland. Many synagogues burned throughout the night in full view of the public and of local firefighters, who had received orders to intervene only to prevent flames from spreading to nearby buildings. SA and Hitler Youth members across the country shattered the shop windows of an estimated 7,500 Jewish-owned commercial establishments and looted their wares. Jewish cemeteries became a particular object of desecration in many regions."

When a Jewish cemetery is desecrated, it sounds like a tornado siren to Jews. What makes America different from Germany is that people of all faiths and backgrounds are speaking out against this blind hatred. 

Here is hoping that at least one friend or neighbor sees Trump's meek approach to these developments in a new light.

Could President Trump Author this White Supremacy Flyer?

You decide: Could our president have authored this flyer left by a white supremacist group at an AT&T workplace? The case is Curry v. SBC Communications, Inc., 669 F.Supp.2d 805 (E.D.Mich. 2009). Here is the "flyer" displayed at work:

There are African Americans, 

Mexican Americans, 

Asian Americans, 

Arab Americans, 

Native Americans, etc.

... And then there are just—Americans.

You pass me on the street and sneer in my direction.

You Call me ‘White boy,’ ‘Cracker,’ ‘Honkey,’ ‘Whitey’ ‘Caveman,’

... And that's OK.

But when I call you Nigger, Kike, Towel head, Sand-nigger, Camel Jockey, Beaner, Gook, or, Chink,

... You call me a racist.

You say that whites commit a lot of violence against you, so why are the ghettos the most dangerous places to live?

...

If we had a White Pride Day

... You would call us racists.

...

You are proud to be black, brown, yellow and red, and you're not afraid to announce it.

But when we announce our white pride ... You call us racists!

You rob us, carjack us, and shoot at us.

But, when a white police officer shoots a black gang member or beats up a black drug-dealer who is running from the LAW and posing a threat to ALL of society

... You call him a racist.

I am proud .... But, you call me a racist.

Why is it that only whites can be racists?

*******

By the way, the “poem” was not the only incident of racial harassment. A noose was also hung in this workplace. The court allowed the black plaintiffs to proceed to a trial on the issue of racial harassment.

Amazon Mainstreams Skin Heads

In my continuing research on white identity in the American workplace, I came across this remarkable article from 1974, Mike Brake, "The Skinheads: An English Working Class Subculture," Youth and Society, Vol. 6.
Compare Brake’s observation of English skinheads from the late 1960s-- it sounds like our elections for 2016: “Immigrants became an easy scapegoat in an economic system where traditional industries are threatened, where a cheap pool of labour is part of the economy combined with a permanent pool of unemployment, and where the cost of living has risen beyond all expectation…. It is not surprising that a group of disenchanted youths from the poorest sections of society respond to racism and prejudice as an answer to their problems.”

Part of my research today uncovered these items for purchase on Amazon (pictures in this post). 

Verify here:  https://www.amazon.com/Skinhead-Working-Class-Proud-Music/dp/B010QWL5H8.

My take? Skin Heads have become more mainstreamed than I realized. Notice the fusion of work and racism. I understand better how we have a white nationalist as our president.

Teachers, Parents and Friends: Could We Pass the Citizenship Test for Naturalization?

A bill was introduced in early February to cut by half the number of immigrants who can be granted citizenship in the U.S. (the bill is the Reforming American Immigration for Strong Employment Act, otherwise known as the RAISE Act). Put together with mass deportation of unlawful aliens, the U.S. is on track to lose much of its immigrant population. These policies are built on fear and the false notion that employment for American citizens will improve.

How many of us could pass the citizenship test? I ask because the process for becoming a citizen is called naturalization. There are numerous requirements, including passing a “citizenship test.”

Here is the link to 100 test questions with correct answers. Ten questions are taken randomly from the test. An immigrant must answer six questions correctly. For teachers, parents and those of us (including me) who want a refresher exercise, click here for a great series of short, catchy slides!

Test, here:

https://www.uscis.gov/citizenship/learners/study-test/study-materials-civics-test/100-civics-questions-and-answers-mp3-audio-english-version

Flash cards, here: https://www.uscis.gov/sites/default/files/USCIS/Office%20of%20Citizenship/Citizenship%20Resource%20Center%20Site/Publications/PDFs/M-623_red_slides.pdf

“Donald J. Trump Statement on Preventing Muslim Immigration”: Why the Next Travel Ban May Also Be Ruled Unconstitutional

On December 7, 2015—the anniversary of Pearl Harbor— then-candidate Donald Trump issued the following campaign statement (red text). A federal court in Virginia ruled on Feb. 13, 2017 that the President’s “travel ban” is actually a form of religious discrimination.

- DECEMBER 07, 2015 -

​DONALD J. TRUMP STATEMENT ON PREVENTING MUSLIM IMMIGRATION

(New York, NY) December 7th, 2015, -- Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing "25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad" and 51% of those polled, "agreed that Muslims in America should have the choice of being governed according to Shariah." Shariah authorizes such atrocities as murder against non-believers who won't convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

Mr. Trump stated, "Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again." - Donald J. Trump
Verify here: https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration

********

Here is how Judge Leonie M. Brinkeman analyzed the religious dimensions of the travel ban/Muslim ban (she enjoined the ban):

“The ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered. See [Dkt. 61–12]. The president connected that policy to this EO when, asked last July if he had abandoned his plan for a Muslim ban, he responded ‘Call it whatever you want. We'll call it territories, OK?’ [Dkt. 61–22] at 10. Giuliani said two days after the EO was signed that Trump's desire for a Muslim ban was the impetus for this policy. [Dkt. 61–4] at 1. And on the same day that the president signed the EO, he lamented that under the old policy, ‘If you were a Muslim you could come in, but if you were a Christian, it was almost impossible,’ and said his administration was ‘going to help’ make persecuted Christians a priority. [Dkt. 61–6] at 2. Defendants have not denied any of these statements or produced any evidence, beyond the text of the EO itself, to support their contention that the EO was primarily motivated by national security concerns.

The 'specific sequence of events' leading to the adoption of the EO bolsters the Commonwealth's argument that the EO was not motivated by rational national security concerns.”
****
The bottom line: Donald Trump will have a challenging time running away from his naked religious prejudice.

Today’s Supreme Court Ruling Signals Sensitivity to Racism

Duane Buck was convicted of the 1995 murders of a former girlfriend and one of her friends. Under Texas law, the state can impose a death sentence only if prosecutors can show the defendant poses a future danger to society. At trial, evidence was admitted from a psychologist who testified that Buck’s race made him a danger to society. Specifically, the prosecutor asked: “You have determined that…the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?”  Dr. Quijano replied, “Yes.”

Today, on a remarkable 6-2 vote, the Supreme Court vacated the sentence.

What’s notable is that a conservative justice, Chief Justice John Roberts, authored the decision, where he said that the psychologist’s report “said, in effect, that the color of Buck’s skin made him more deserving of execution.”

Roberts continued: “Our law punishes people for what they do, not who they are,” Chief Justice Roberts wrote. “Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.” He added that this testimony “appealed to a powerful racial stereotype — that of black men as ‘violence prone.’”

The 6-2 vote is also remarkable. Justices are human and react to social and political change, albeit in a much slower, deliberate and cautious manner. But the unmistakable uptick in open racism, Islamophobia, anti-Semitism, and nativism may be causing two Republican justices— Roberts and Kennedy— to position themselves as centrists, in alignment with the liberal wing of the Court.
Today's ruling means that Buck will likely be sentenced to life in prison.
Photo Credit: Popularis

Why Do Judges Dissent?

In today’s employment law class, a student asked a remarkably thoughtful question: What’s the purpose or value of a dissenting opinion? I invite my readers to answer this question by considering key dissenting opinions in Supreme Court cases.

Plessy v. Ferguson (1896). Homer Plessy bought a rail ticket for a white-only coach car. He was 1/8 black, 7/8 European (making him “octoroon"). He was arrested for violating Louisiana’s “Separate Car Act.” The Supreme Court ruled, 7-1, that “separate but equal” satisfied the equal protection clause of the Constitution. Justice John Marshall Harlan dissented, stating: “The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens.”

Fifty-eight years later, his dissenting opinion became the basis for Brown v. Board of Education—the case that struck down the “separate but equal” justification for segregated schools.

Turning to today, Korematsu v. U.S. (1948) is of growing relevance. There, the U.S. ordered the detention of Japanese Americans. The Supreme Court found the detentions to be constitutional. There were two dissenting opinions. Justice Jackson said, in dissent: “A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens…”

Unlike Plessy—which was overturned— Korematsu is still “good law” (though a pernicious precedent). Will the current administration use the case as a precedent for requiring Muslims to register in a national database? This seems entirely possible. Some dissents—while spot-on— remain little more than powerful critiques of a misguided majority opinion.

Special thanks to my students! 

Photo Credit: Mike Keefe, Denver Post

Why Are Women Leaving the Work Force?

A smaller percentage of women are working today compared to 2000. Women were increasing their labor force participation from 1975-2000. The percentage of women at work peaked at 59.9% in 2000; but since then, it has been steadily falling. It’s at 56.7%-- a large drop when you factor in tens of millions of women.

Reasons? There is no clear answer or single answer.

Here are factors:

Retiring female baby boomers combined with women attending college and delaying entry in the labor force.

Less than half of women feel “engaged” in their jobs.

Here are other findings by Gallup (the survey firm) about women in the workplace:

“Pay is less of a factor than other workplace attributes are in women's employment decisions.

The economy is not the biggest reason women leave the workforce.

Men and women have different definitions of ‘full-time’ employment.

Outdated company cultures and policies affect women personally and professionally.

Women show greater intensity in certain relationship-building strengths compared with men.”

For more, see here: http://www.gallup.com/businessjournal/201719/dwindling-female-labor-force.aspx?g_source=BUSINESS&g_medium=topic&g_campaign=tiles

Photo Credit: Venngage

The Meaning of “True American”? Insights from Pew Study on National Identity

What does it mean to be a “true American”? Pew Research Foundation asked that question in the U.S. and other nations.

In the U.S., 32% of survey respondents said that being born in the U.S. is the essence of being a “true American.” 

Being a Christian is also a core element of being a “true American” according to 32% of respondents.

Sharing traditions and customs is what makes someone a “true American,” according to 45% of respondents.

Donald Trump’s support as a candidate and as president has essentially ranged from 38% to 46% over the past year. That range seems to reflect the 32% who perceive American identity in terms of birth in the U.S. and being a Christian.

To read more on Pew’s interesting study, visit http://www.pewglobal.org/2017/02/01/what-it-takes-to-truly-be-one-of-us/

Is Trump in Nixon’s Shadow?

David Greenberg’s biography, Nixon's Shadow: The History of an Image (Norton 2003), offers this interesting passage on Nixon’s relationship to the media—and to himself:

“Nixon’s hostility to the media surfaced in ways more troubling than his reclusiveness. Reporters saw sinister designs in Nixon’s efforts to monitor what was said about him and a threat to democracy in his use of power to suppress the news. Collectively, they concluded that these actions amounted to a war against them.

Nixon devoured the news. Each day, he plowed through his 'News Summaries.'… Nixon added his own usually intemperate marginalia. Although the White House said the summaries showed the administration’s efficiency, reporters wrote about them in a scandalized tone, as proof of Nixon’s image obsession and his unabating need to keep track of reporters to exact retribution (p. 153).”

The comparisons seem clear—the implications are not. Nixon did not survive intense media scrutiny that led to an independent prosecution of Watergate. It’s too early to draw any conclusion about our president’s fate.
Photo Credit: PennLive

What Would ... Prof. Gressman Say: On State-Approved Racism

In my last post, I incorrectly noted the Supreme Court Justice for whom Prof. Gressman clerked. He clerked for Justice Frank Murphy, from Prof. Gressman's home state of Michigan.

Justice Murphy penned an unforgettable dissent in Korematsu v. United States-- the case that ruled that the U.S. had a constitutional basis for internment of Japanese residents.

There is widespread speculation that Gene Gressman wrote-- or influenced Justice Murphy to write-- an especially stinging dissenting opinion. To be clear, take nothing away from Justice Murphy's brave and very unpopular dissent. The point is that few if any justices ever had spoken so openly about "racism" in America until that opinion was written. The Quaker sensibilities of Gene Gressman likely played a role in the tone of this dissent.

These words are more relevant than ever today:

"I dissent ... from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution."

A Valentine Remembrance of Prof. Gene Gressman

INS v. Chadha is a big case—again— in light of President Trump’s travel ban. My constitutional law professor at the University of North Carolina, Gene Gressman, argued the case to the Supreme Court in 1983. His client? The U.S. House of Representatives. 

Mr. Chada came from Kenya to study in the U.S. When his visa expired, he was to return home. The problem was that he was born to Indian parents in Kenya. Kenya would not let him return; India wouldn’t take him; nor would Great Britain, the nation in control of Kenya in 1963, when Chadha was born. So, he was a stateless man—truly a sympathetic figure.

Applying immigration law, the executive branch set out to deport him anyway. The Ninth Circuit—the same court that struck down Trump’s ban— struck down the deportation order. 

Next, the House of Representative passed a legislative veto of the Ninth Circuit’s ruling. Essentially, the House said that the court undercut immigration law by circumventing the student visa, albeit for humane purposes.

In other words, the House said this is a separation of powers problem—we, the Congress, make laws and the president only enforces our will.

Prof. Gressman—a leading authority on litigating before the Supreme Court—represented the House of Representatives. He lost. Chadha was allowed to stay (to which Prof. Gressman expressed relief on a personal basis).

Today, Chadha looms large if Trump takes his executive order to the Supreme Court. 

He’ll argue that the case is strong authority for the executive branch to administer immigration laws with a free hand. (Prof. Gressman would say, "You see, that's what I was afraid of, an unchecked president.")

Intriguingly, the State of Washington would make three "Chadha" arguments.

The case is authority for using immigration law to benefit stateless people (e.g., Syria). Second, because a stateless man such as Chadha won before the Supreme Court, "banned" travelers (i.e., outsiders) have standing to sue. Third, the president does not have unlimited power-- and that was Prof. Gressman's main point in taking the case. (We were only a decade past the Nixon years of "executive privilege" arguments-- the same arguments that are surfacing today).

....

So why the Valentine for my now-departed professor? On Valentine’s Day in 1985, he came to class dressed in a Pink Panther costume, head-to-toe. As the hour progressed, he began to take off parts of his elaborate costume. When he got down to his old-man t-shirt, we shouted, “That’s far enough—please don’t take off anything more!” He laughed and asked what took us so long—and wished us a happy Valentine’s Day.

Gene Gressman was a Quaker. He was granted conscientious objector status in WW II. He then spent six years as a law clerk for Justice Murphy. No one worked as a clerk longer than Gene Gressman—and Justice Murphy showed compassion by holding this job open for Gene. Later, Gene wrote the leading book on how to argue cases before the Supreme Court. A humble man, he told us that it is a professor’s fate to be an expert on arguing to the Supreme Court while losing your case there.

With love and enduring appreciation to Prof. Gressman—thank you for being a professor who touched our lives so deeply.

Happy Birthday, Honest Abe: A Contrast to Dishonest Donald

Happy birthday today to Abraham Lincoln, our nation’s first Republican president. He offers so many stark contrasts to our current Republican president. Lincoln said, “Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”  He also said, “I have always found that mercy bears richer fruits than strict justice.” And let’s not forget this:  “A house divided against itself cannot stand.” Photo Credit: Scampaign.

The Rasmussen Report: What It Shows and Why It Matters

RealClear Politics gives readers a daily rundown on polling data.

Through the primaries and general election, the one poll that stood out for showing more strength for Trump than all the others was Rasmussen. It turns out it was probably the most accurate poll—so that’s why I watch it.

It still shows more support for Trump than all the others.

But it shows a very sharp shift since Inauguration Day. That day, Trump’s approval rating was 56%. Today, it is down to 52%. Trump’s disapproval was 44% on January 20^th. Today, it is up to 48%.

That’s an 8 percentage point swing in about 20 days. Even a non-statistician can see this is a big problem for Trump and the GOP—and it may explain the sudden reversal in key policies.

Trump Nominee’s Excellent Idea: Report “Underemployment”

The Labor Department has measured unemployment for decades—but in different ways. Whether we have a Democratic or Republican president, the U-3 measure is always reported and emphasized. We call this the unemployment rate, but it’s a misleading term. It represents the number of people who are out of work entirely and actively seeking a job.

But the labor department measures other types of unemployment (six ways). They measure “discouraged workers”—people who have given up looking for a job. They’re not counted in the U-3 measure because technically they are no longer in the labor force.

Then we have “under-employed workers.” These are people who work part-time—some by choice, others because they cannot do better.

Steve Mnuchin—Trump’s nominee to head the Treasury Department (and a person with serious ethical questions to answer) is applauded here for stating: “currently, excessive influence appears to be placed by U.S. policy makers on one metric”—this headline U-3 unemployment rate—which, he noted, “fails to include discouraged workers or persons just marginally attached to the labor force.” He wants more focus on these truer measures of lack of employment.

The bottom line: the U-6 line for both discouraged workers and under-employed workers was 9.4% in January 2017. The U-3 figure for unemployment (see definition above) was 4.8%.

If policy makers and the public focus on broader measures of unemployment, we’ll see economic and social problems more clearly. (If you want to see the six rates, click here!).

Alternative Facts at the Novaky Labor Camp

February 11, 1945 is my father’s and uncles' liberation day. Russian soldiers freed Jews from Bunzlau concentration camp.

I can’t find any photo of the camp; but from photo archives in The Holocaust Museum, I’ve copied this incongruous photo of the Menzer family. The archive caption: “Record Type: Photograph/ Photograph #: 24584/ Caption: Prisoners put on a musical performance at the Novaky labor camp.

It’s a stunning propaganda show. The Menzers appear to be well fed—and happy. And remarkably, they are performing in black face. I doubt it was their idea. Labor camps weren't known for artistic license.

…

Here is how the library records the family history (note the mention of Bunzlau, where my Dad was a prisoner): “On January 9, 1945 Eduard Menzer was executed in Kremnica together with 747 people, 400 of which were Jews. At the end of March 1945 the Soviet Army liberated the area. Alfred Menzer, who was deported to Auschwitz and transferred to many camps in Germany, was liberated from Bunzlau. After the liberation the Menzer family reunited in Nitra and eventually moved to Palestine.”

….

The picture is great material for modern-day “denialists,”—and it (or similar images) probably had propaganda value in dissuading people in the U.S. that Nazis were perpetrating atrocities.

History doesn’t lie; but despots do. Here’s hoping that February 11, 2017 marks an end to “alternative facts.” It’s not too late for our president and his press secretaries to start telling the truth.

Ninth Circuit’s Flirtation with Justice Anthony Kennedy

On June 15, 2015— about six months before Justice Scalia’s death—he authored a 5-4 decision in a crucial immigration case, Kerry v. Din. 

It’s an easy case to understand. Fauzia Din petitioned to have her husband, Kanishka Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an “immediate relative” entitled to priority immigration status. Din's petition was approved, but Berashk's visa application was ultimately denied.

In other words, the wife was admitted to the U.S., but the State Department denied her husband entry.

She claimed to have a Due Process right to the reason for her husband’s rejection.

Justice Scalia, in a broadly-worded opinion, said that there is no such constitutional right.

Justice Kennedy was the key fifth vote—but he wrote a concurring opinion that effectively disagreed with Scalia’s broad reasoning.

He said that Ms. Din was told by consular officials that Berashk was inadmissible under Section 1182(a)(3)(B), which excludes aliens who have engaged in “terrorist activities.”

Bottom line: To paraphrase, Kennedy said, “Ms. Din, that’s the reason; now, you have been given due process, in effect if not by law.”

Today, the Ninth Circuit stayed President Trump’s ban. 

On p. 23, it is flirting for Justice Kennedy’s attention when the opinion says, “Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see …. Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment)."

In other words, Ms. Din was given an explanation: Her husband was determined to be a terrorist. Justice Kennedy agreed with that outcome, but he held open the question of what to do when someone is denied admission and not even the statute is cited. 

That’s the core of the Trump case: Why are 130 million people barred entry? Are there 130 million terrorists, such as Din’s husband? If not, do we have a Muslim ban?

Justice Kennedy will get to decide that question—the question he avoided in 2015-- very soon.

How Donald Trump Is Taking Food Off Your Table

Today’s New York Times has a distressing feature story, “California Farmers Backed Trump, but Now Fear Losing Field Workers.” Here’s the gist of the story from California’s Central Valley— the nation’s growing place for fruit and vegetable crops— summarized in a choice quote from a grower: “If you only have legal labor, certain parts of this industry and this region will not exist,” said Harold McClarty, a fourth-generation farmer in Kingsburg whose operation grows, packs and ships peaches, plums and grapes throughout the country. “If we sent all these people back, it would be a total disaster.”

The exodus of farm workers will proceed on different legal fronts, possibly with a compounding effect on food availability and prices:

Deportation of Illegals: Yesterday, President Trump successfully enlisted the support of the nation’s professional association of sheriffs to aid in rounding up “illegals”—the first step toward deportation.

From the NYT story: Jeff Marchini has a large business built around leafy vegetables. He voted for Trump. Now, he has second thoughts. Marchini said, “as a businessman, Mr. Trump would know that farmers had invested millions of dollars into produce that is growing right now, and that not being able to pick and sell those crops would represent huge losses for the state economy. I’m confident that he can grasp the magnitude and the anxiety of what’s happening now.”

Restrictions on/Elimination of H-2A Workers: This is the legal side of agricultural labor market. President Trump might expand the program, but that’s not been his drift. Trump’s affinity is reflected here: “Dan Stein, president of the Federation for American Immigration Reform, said that limiting the use of foreign labor would push more Americans into jobs that had primarily been performed by immigrants.” So far, in Arizona, where a highly restrictive immigration law was passed about nine years ago, American citizens have not filled in for the lost immigrant labor. True, wages have gone up.... but production has gone down in labor-dependent agriculture, with growers working smaller fields

Pull Out of NAFTA: Retaliation by Mexico would hurt growers in the Central Valley. Last year, California alone earned $21 billion from agricultural trade.

Summary Assessment: For now, consider the insights of John Krist, CEO of Farm Bureau of Ventura County: “If Trump were to follow through on a pledge to deport every person in the United States who is here illegally or without proper documentation, setting aside the logistics and civil rights nightmares that would be involved in deporting 11 million people, basically that would put California and Ventura County agriculture out of business overnight,” Krist said. “It varies and is hard to get solid figures (but) it’s no secret that as much as half to three-quarters of the California agriculture labor force lacks proper documentation. There’s not really any way to prepare for something like that; you just hope it doesn’t happen.”

The GOP’s Glass Walls for Women

“Glass ceiling” is a term that refers to an invisible barrier in a workplace that cuts off women from promotions to high-level positions. It’s very real; and it stems from stereotyping about women. Perhaps the biggest stereotype is that women are not as committed to their work as men because women have babies and are the main care-providers for children.

That brings us to “Obamacare”/ACA. Few people realize that this law also requires an employer to provide reasonable accommodations for nursing mothers to breast feed their babies or to express milk for them (I’ve copied the regulation below).

So, the “repeal” movement also takes aim at this important but little mentioned law. If that law is repealed, that’ll make it harder for nursing moms to juggle a job and take the best care of her baby. That’s a glass wall, not a ceiling, because some women may decide to leave work due to lack of nursing accommodations.

Here are other emerging glass walls:

Government-Mandated Paid Maternity Leave: During the Republican National Convention, Trump had Ivanka introduce the campaign promise of six weeks of paid leave for moms after the birth of a child. That regulation would cost employers about 90% of the minimum requirement for employer paid health insurance under the ACA. If that campaign promise becomes a reality, it’ll be a surprise. The glass wall part is this: For any woman who factored this promise into her vote for Trump, she’ll see the promise over there behind the glass—but she won’t actually enjoy the benefit.

The Public Silencing of Sen Elizabeth Warren: Women are told to shut up at work (and probably elsewhere) with some regularity. In EEOC v. Café Acapulco (2000), a female waitress complained to her supervisor after the kitchen staff subjected her and female co-workers to offensive comments on a daily basis, including (i) asking Quinones, “Do you want me to fuck you? I'll fuck you, and give you some ninos,” “When are we going to go out?” and “I think what you need is a good fuck”; and telling this waitress that he “wanted to flip his dick out and hit her with it and sling her across the restaurant.” When she complained, her boss “told her to shut up and that he didn’t want to hear about it.” The GOP just sent a green light of approval for men to shut-up women who complain at work (as Sen. Warren was doing). Being told to “shut up” in another way of creating a glass wall for women at work.

….

Here is the nursing regulation:

Section 7(r) of the Fair Labor Standards Act – Break Time for Nursing Mothers Provision

Effective March 23, 2010, the Patient Protection and Affordable Care Act amended the FLSA to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. The amendment also requires that employers provide a place for an employee to express breast milk.

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:

(r)(1)

An employer shall provide—

a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and

a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

               

(2)

An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

               

(3)

An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

               

(4)

Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

Kudos, Respect and Thanks to Judge Neil Gorsuch, Supreme Court Nominee

Today, Judge Neil Gorsuch confirmed his private comments to Sen. Richard Blumenthal (D. Conn.): The judge said that President Donald Trump’s recent attacks on the judiciary are “demoralizing and disheartening.”

Judge Gorsuch— billed as a constitutional originalist— is living up to his reputation.

Our Constitution faced very strong opposition when it was proposed as a replacement to the Articles of Confederation. 

A series of published papers—sort of like a blog— explained the new Constitution to the American people. In Federalist No. 78, Alexander Hamilton both explained and justified the judicial branch. He said it holds a check on the Congress and president—but to be successful, the judiciary needs the respect of the executive branch.

Here is what Hamilton said on May 28, 1788:

“The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

American Gothic: Iowa in 2020

The Des Moines Register— the paper that Americans read in presidential primaries—headlines this story: Republicans, without notice or discussion, sneaked a 68-page bill that guts public sector unions on to the legislative floor. This happened the same day that Sen. Leader Mitch McConnell disciplined Sen. Elizabeth Warren for “impugning” a fellow senator by reading a critical letter from Coretta Scott King.

Iowa is also a major story in a Wall Street Journal special report, titled “The Next American Farm Bust Is Upon Us.” Here’s a surprising except: “Russia, meanwhile, has swung over the past quarter-century from the world’s largest wheat importer to the biggest exporter, said Dan Basse, president of Chicago-based research firm AgResource Co. Farmers there planted even more wheat last year to take advantage of the U.S. dollar’s recent climb against many currencies. That encourages Russian farmers to export as much wheat as possible for dollars, which convert to about twice the number of rubles they did three years ago.”https://www.wsj.com/articles/the-next-american-farm-bust-is-upon-us-1486572488 

It’s likely to get worse, assuming that Tea Party Republicans have their say on the federal budget. Bloomberg’s Aug. 16, 2016 article, “Farmer Get Biggest Subsidy Check as Prices Drop,” (https://www.bloomberg.com/news/articles/2016-04-11/farmers-get-biggest-u-s-subsidy-check-in-decade-as-prices-drop) published this chart:

What does this chart say? In 2016, U.S. farmers had 26% of their income from federal price support programs. If these farmers lived in “Shee-cago,” that would be called welfare.

That was before President Trump announced a 20% tariff on Mexican products—a move that will likely result in harmful counter-tariffs aimed at U.S. exports. And, it was before Trump cancelled U.S. participation in TPP.

Iowa exported exported $13.2 billion in goods in 2015, with about 12 percent coming from farms. http://www.desmoinesregister.com/story/money/business/2017/01/26/iowa-uneasy-over-trumps-proposed-imports-tax-mexico/97082370/

There is more. Today, the president is urging county sheriffs to help federal immigration officers round-up illegal aliens. Where will these people be detained in Iowa? Not a federal facility-- no, in Iowa county jails. Who will pay for the upkeep? Iowans. 

Under normal circumstances, it takes months to process detainees for deportation hearings. It’s anyone’s guess how long the process will be delayed if the system is swamped (it’s already above capacity because of too few federal immigration judges); but there is a bill in Iowa to prohibit counties from detaining illegal aliens. The rationale is partly sympathy for immigrants, and partly a pragmatic consideration of cost—as well as law enforcement priorities.

America might be great again, but Iowa is looking like it’s heading for the poor house—not just it’s government units, but its citizens. Just as Iowa led the way for the Trump revolt, it might lead a different way in the future.

More Charter Schools? Let’s Have an Illinois “Sunshine” Law

A charter school is a private school that operates with public money. In Illinois, there don’t appear to be laws that regulate the ethics of running a private business with taxpayer money-- i.e., financial disclosures made by owners and operators of schools, enforced by criminal penalties. There should be this type of "sunshine” (transparency) law.

Gov. Rauner should know. He was on the Board of Directors of the SUPES Academy in Wilmette. SUPES bills itself as an expert on training principals how to manage and lead better in schools. This private "academy" got a $23 million no-bid contract to train principals in Chicago Public Schools in 2013. At the time, Gov. Rauner was on the SUPES Board.

SUPES got the bid by bribing a Chicago Public School administrator, Barbara Byrd Bennett. Here’s how the deal worked: If she got SUPES the contract, SUPES would pay her about $2.3 million under the table.

SUPES is not a charter school—but it shows what can go terribly wrong when private educators try to gain access to public money. At this point, Byrd-Bennett and the two SUPES owners have pleaded guilty to criminal charges and are awaiting sentencing.

In April 2015, Gov. Rauner faced some tough questioning from a Chicago Tribune reporter.

This post closes with a quote from Kim Geiger, Juan Perez, and John Chase’s article in the Chicago Tribune (April 20, 2015) (http://www.chicagotribune.com/ct-cps-contract-emanuel-rauner-met-0421-20150420-story.html).

On Monday, Rauner was asked about his views on the role private foundations should play in public education policy, given the federal investigation into the SUPES contract. At first Rauner said the education fund wasn't involved in bringing SUPES to CPS.

"That particular group, which I don't know anything about, was brought in, I believe, by the CEO of the schools. It wasn't brought in by the fund, by the foundation. I don't know," Rauner said during an appearance before an education writers group at a River North hotel.

When a questioner pointed out that the education fund he was part of was involved with SUPES, Rauner tried another tack.

"My experience with the public education fund has been mostly good. Although I will say this, the fund didn't make many of its own decisions as much as it was a facilitator for what the mayor or the schools or the leadership wanted to do," the governor said. "It was a little bit more of a support group rather than a truly independent group. And that was a source of frustration for me over time."

But records show that Rauner was a key player in the group and that the group played a key role in bringing the executive training program to the public schools.

Rauner's family foundation gave the Chicago Public Education Fund $500,000 in 2012, according to federal tax records, and Rauner said Monday that he and his wife have given the fund "many millions of dollars" over the years. Rauner also was chairman of the nonprofit for a time and said he served on the board for at least 10 years.

Under-Reported? White Terrorism in America

The following terror attacks were covered by news outlets. What has been missing is a broad recognition of patterns in these events. They’re often portrayed as “extremist” attacks, which is true—but what is under-reported is the white separatist/ white supremacy identity and attachments of these cold-bolded killers. Also under-reported is how racialist attitudes fuel the rage of these killers. Here’s a quick and incomplete list.

Timothy McVeigh, white supremacist. McVeigh killed 168 people when he blew up the Alfred P. Murrah Building in Oklahoma City in 1995.

James Von Brunn, white supremacist and Holocaust denier, open fired at the Holocaust Museum in Washington D.C., in 2010, killing an African-American security guard.

Jared Loughner, killer of six people when he tried to assassinate Congresswoman Gabrielle Giffords in 2011. He is a fan of far right talk show host, Alex Jones.

Wade Michael Page, white supremacist used a semiautomatic weapon to murder six people during an attack on a Sikh temple in Oak Creek, Wisconsin on Aug. 5, 2012.

Eric Rudolph, the Centennial Olympic Park bomber (July 27, 1996), whose bombing killed Alice Hawthorne and wounded 111 others.

Dylan Roof, mass murderer and white supremacist convicted of perpetrating the June 17, 2015, Charleston church shooting. During a prayer service at Emanuel African Methodist Episcopal Church, Roof killed nine people, all African Americans.

Dylan Klebold and Eric Harris, Hitler-saluting teenagers who used Hitler’s birthday to kill 12 students and one teacher and injure another 21 students on April 20, 1999, at Columbine High School near Littleton, Colorado.

Neo-Nazi Benjamin Nathaniel Smith kills black basketball coach Ricky Byrdsong and a Korean graduate student and wounds nine other non-white victims in a three-day shooting spree in Urbana and Evanston, Illinois.

Frazier Glenn Miller, a 73-year-old with a long history of KKK activity, kills three people in the area of a Jewish community center and Jewish community in Overland Park, Kansas on April 13, 2014.

Richard Andrew Poplawski, a frequent poster on the white supremacist Stormfront website who apparently believes a national "gun ban" is imminent, kills three Pittsburgh police officers on April 4, 2009.

Beware What You Wish (Right-to-Work, Obamacare, Seat Belt Laws, and My Damn HOA!)

Today, Missouri became the 28^th state to abolish mandatory union dues.

In the following parable, I speak for a fictional person who supported the Missouri law in 2017 but had a change of heart in 2018.

….

Crystal's Story

My 2017 started out great! In early February, we finally got a law in Missouri that made payment of dues purely voluntary. I went to HR immediately and tore up my payroll deduction form for union dues. I told my co-workers to do the same. Most told me they were planning to do it already. 

It felt great to save $1,200 a year in union dues because I make only $52,000 at the factory in St. Louis.

The year got better for me when Obamacare was repealed on July 4, 2017. It was hugely expensive and my policy had high deductibles. States were given authority to set up their own insurance systems. I wasn’t sure what Missouri had, but I know that my take-home pay increased by $650 a month!

In August, I got together with some of my neighbors and attended the annual condo association meeting. We told the officers that our $300 annual fee was too high—and we demanded that our fees be cut to $100. We won!

By the end of 2017, I saved $1,200 in dues, $200 in condo fees, and about $3,600 in health insurance payroll deductions.

Things changed for me in 2018. 

On January 20^th, we had a three inch snowfall. As I was driving a block from my home, my pick-up skidded into the back of a car. It wasn’t a big deal, but my bumper was damaged and so was the bumper of the car I hit. I was upset, however, because the damn street wasn’t plowed.

I went to the emergency room because I had a bad headache. 

I don’t wear seat belts—I don’t care what the law says, seatbelts are too uncomfortable. 

I found out that I am uninsured. The ER said I’d be treated anyway, and they were right. They got to me after I was sitting there for four hours.

I was so disoriented from the accident that I forgot to call ahead to work.

When I showed up at work, I was told to report to HR. 

These jerks assessed me three points under the company’s damn “point system.” I got one point for an absence. I told HR you can’t give me a point for missing work when I have an accident. They said I get a point anytime I’m absent—they call it a no fault system because they got sick and tired of reading doctor’s excuses they thought were bogus reasons to get out of work.

The real kicker was they gave me two full points for being a no-call, no-show. “That’s crazy! How can you do that to people in an accident?” 

“We had to call in a replacement for you. The line couldn’t start for an hour. We had to pay that person overtime because they were above 40 hours for the week. Your no-call, no-show cost us money.”

That took me from three points to six points—and automatic termination.

“You can’t fire me like that!”

….

Yes, they can. It’s called employment-at-will. 

Her union? They filed papers to de-authorize their status as the bargaining representative for her workplace due to lack of funding.
If they were at Crystal's workplace they'd be able to file a grievance take her case to an arbitrator. 

The $200 she saved on her HOA?
Crystal's HOA dropped its plowing contract—it relies only on city services, and since the condo is on a secondary street, it doesn't  get salted or plowed for a day. 

The bumper on Crystal's truck? She didn’t repair it because of the $2,000 deductible-- but she had to pay for the other lady’s bumper to avoid a lawsuit. 

Now, about the health insurance. Crystal was billed $600 for the ER visit. They checked her vitals, ran a concussion test, said she had a mild concussion, and sent her home with some meds. She still has headaches but can’t see a doctor because she's not insured.

Her job? She doesn't have one. And Crystal's state senator just introduced a bill to limit unemployment from 26 weeks in a year to 10 weeks. He says it will cause more employers to locate in Missouri.

Tech Companies and the Ban: Beyond the Headlines

Ninety-seven high-tech companies filed a “friend of the court” brief in the Washington case involving the (travel) (Muslim) ban. I’ve used parentheses here because this post is not an opinion piece—it is meant to be informational. Trump calls it a travel ban; many others say it is a religious ban.

The roster of companies appears below. Apple, Google, Uber—even Twitter— are together on this brief.

The essence of their argument is in the quoted red text.

My prediction? The Ninth Circuit will affirm the district court, meaning that the order will be stayed. The Supreme Court will expedite the review process. My very uncertain prediction is a 5-3 vote to overturn parts of the executive order—likely on procedural grounds. I think the Court will avoid a sweeping ruling that green-lights or red-lights President Trump. I am guessing (that’s all it is) that Justice Kennedy will be the key vote.

One more point: Win or lose, these tech companies are deeply troubled by the anti-immigration rhetoric and stance of Donald Trump, Steve Bannon and the administration. They will begin the process of relocating parts of their physically-sited headquarters and locations to other nations, e.g., Canada, Germany, and Australia.

Now, their legal arguments and names:

The Executive Order Is Unlawful;

The Order discriminates on the basis of nationality

The Order exercises discretion arbitrarily.

The Order represents a significant departure from the principles of fairness and predictability that have governed the immigration system of the United States for more than fifty years—and the Order inflicts significant harm on American business, innovation, and growth as a result.

The Order makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees.

It disrupts ongoing business operations. And it threatens companies’ ability to attract talent, business, and investment to the United States.

AdRoll, Inc.

Aeris Communications, Inc.

Airbnb, Inc.

AltSchool, PBC

Ancestry.com, LLC 


Appboy, Inc. 


Apple Inc. 


AppNexus Inc. 


Asana, Inc. 


Atlassian Corp Plc 


Autodesk, Inc. 


Automattic Inc. 


Box, Inc. 


Brightcove Inc. 


Brit + Co 


CareZone Inc. 


Castlight Health 


Checkr, Inc. 


Chobani, LLC 


Citrix Systems, Inc. 


Cloudera, Inc. 


Cloudflare, Inc. 


Copia Institute 


DocuSign, Inc. 


DoorDash, Inc. 


Dropbox, Inc. 


Dynatrace LLC 


eBay Inc. 


Engine Advocacy 


Etsy Inc. 


Facebook, Inc. 


Fastly, Inc. 


Flipboard, Inc. 


Foursquare Labs, Inc. 


Fuze, Inc. 


General Assembly 


GitHub 


Glassdoor, Inc. 


Google Inc. 


GoPro, Inc. 


Harmonic Inc. 


Hipmunk, Inc. 


Indiegogo, Inc. 


Intel Corporation 


JAND, Inc. d/b/a Warby Parker 


Kargo Global, Inc. 


Kickstarter, PBC 


KIND, LLC 


Knotel 


Levi Strauss & Co. 


LinkedIn Corporation 


Lithium Technologies, Inc. 


Lyft, Inc. 


Mapbox, Inc. 


Maplebear Inc. d/b/a Instacart 


Marin Software Incorporated 


Medallia, Inc. 


A Medium Corporation 


Meetup, Inc. 


Microsoft Corporation 


Motivate International Inc. 


Mozilla Corporation 


Netflix, Inc. 


NETGEAR, Inc. 


NewsCred, Inc. 


Patreon, Inc. 


PayPal Holdings, Inc. 


Pinterest, Inc. 


Quora, Inc. 


Reddit, Inc. 


Rocket Fuel Inc. 


SaaStr Inc. 


Salesforce.com, Inc. 


Scopely, Inc. 


Shutterstock, Inc. 


Snap Inc. 


Spokeo, Inc. 


Spotify USA Inc. 


Square, Inc. 


Squarespace, Inc. 


Strava, Inc. 


Stripe, Inc. 


SurveyMonkey Inc. 


TaskRabbit, Inc 


Tech:NYC 


Thumbtack, Inc. 


Turn Inc. 


Twilio Inc. 


Twitter Inc. 


Turn Inc. 


Uber Technologies, Inc. 


Via 


Wikimedia Foundation, Inc. 


Workday 


Y Combinator Management, LLC 


Yelp Inc. 


Zynga Inc. 
 MG