Why You Should Take the Onionhead Religion Seriously

Some employers emphasize neutral values such as teamwork. Liberal-leaning firms accentuate diversity and multi-culturalism. Conservative employers stress religious values (reflected in rules about attire, drinking, cursing, or display of religious symbols at work). Increasingly, however, employers want their employees to share their world-view, which may be grounded in religion.

Last week, a federal jury in Brooklyn ordered a health insurance company to pay $5.1 million to 10 employees who said they were forced to follow the practices of an obscure religious belief system called “Onionhead.”

Linda “Denali” Jordan was a senior manager who was given the power to fire employees at United Health Plans. She is an adherent of Onionhead, which is also called Harnessing Happiness.

Under her direction, UHP employees were required to thank God for their employment, routinely tell each other “I love you,” and participate in prayer circles and meditation. And each day, they were asked to select cards containing "universal truths" and contemplate their meaning.

One of the workers was fired in 2012 for refusing to participate in Onionhead rituals. Others put up with a work culture that referred to God, Satan and “divine destinies,” and religious iconography, in Onionhead literature. Jordan, while wearing her senior management hat, referred to herself as a “spiritual adviser.”

The Brooklyn jury found that Onionhead was used as a religion in this workplace, and its value system was also used to discriminate against employees on the basis of their faiths (or lack thereof). 

Soon, the Supreme Court will decide if a private bakery may rely on a First Amendment right to religious freedom to deny service to a gay couple. Odds are the court will rule for the bakery, opening the question of how far a private company can impose it religious values on customers and employees. “Onionhead” is appealing this expensive judgment. Depending on how broadly the Supreme Court defines religious freedom, employees could lose their jobs for not toeing the religious line of Onionhead and more conventional religiously-oriented employers.

How to Plan a Concentration Camp in America

There are parallels between the Nazi concentration camp [pictured first, Bunzlau, in Bolesławiec, Poland] where my father was held and American concentration camps (also called internment camps or, in more Orwellian terms, relocation centers) [pictured second, at Lake Tule, CA].

A geographer, Prof. Robert Wilson (Syracuse), set about to explain how the War Relocation Authority picked sites for these camps. 

The story begins with the federal government’s efforts to irrigate semi-arid high deserts in parts of California, Oregon, and Washington. The point was to boost agricultural production. To accomplish this, the government had to make unproductive land fertile—and also provide homesteads (free land) to new settlers. At this time—roughly, during World War I— western states passed laws that made it illegal for Japanese immigrants (and their American-born children) to own land. As Wilson notes, “Through hard work and the support of a willing federal government, the settlers had developed a landscape where white settlers could prosper.”

Two months after Pearl Harbor, FDR ordered approximately 117,000 Japanese-Americans to be “evacuated.” Like my father’s family, Japanese Americans lost their businesses, homes, and employment.

Initially, three large camps were sited on unclaimed land that was newly irrigated. The land was unclaimed because of extreme weather, isolation, and lack of any amenities—in short, ideal for an American concentration camp where innocent Japanese could be punished for their nationality and race.

Wilson explains as follows:

“Bureau of Reclamation irrigation projects had a number of qualities that made them attractive to the WRA. Bureau projects were based away from the coasts where most Japanese Americans lived and they were outside the exclusion zones. Because unhomesteaded project land was federally owned, the WRA did not need to purchase land for the camps. 

Although isolated by some standards, federal reclamation projects were near railways or highways, which were essential to transport Japanese Americans to the camps and to supply them with provisions.

Most important, however, the internees were expected to produce vegetables, grain, meat, and other agricultural products to help support thousands of others in the camps. The WRA believed that self-sufficiency was essential so that the camps did not become a drain on the war effort. The agency also wanted to keep the internees occupied with productive work. 

In the intermountain West, farming was largely impossible without irrigation water. Bureau of Reclamation projects offered the necessary infrastructure of canals and ditches to supply water to camp farms. Given that the WRA wanted to secure building sites as quickly as possible, it was no surprise that the agency chose the Reclamation Bureau’s projects. They were relatively isolated, federally owned, and suitable for irrigation.”

Suburban Bus Company: The New Separate but Equal

The Illinois Attorney General is suing Suburban Bus Company for violating the civil rights of Chinese and Jewish students (click here for complaint, http://www.illinoisattorneygeneral.gov/pressroom/2018_04/Filed_SE_Complaint.pdf).

A post-Civil War law prohibits a person from depriving others of equal rights, including the right to travel on public highways. The bus company refuses to make stops in areas with predominantly Jewish zip codes, and regularly insults Chinese people in ads (see picture above).

Suburban Bus does not literally put Chinese and Jews in the back of the bus—but they deny service based on religion by deliberately avoiding Jewish areas and by creating a humiliating atmosphere for Chinese patrons (mostly students).

In 1890, Louisiana passed the Separate Car Act, which required separate accommodations for blacks and whites on railroads. A group of prominent black, creole, and white New Orleans residents challenged the law. To do this, Homer Plessy, an “octoroon” under law (being seven-eighths European descent and one-eighth African descent), boarded the white car. He was ordered to the “colored” car. When he refused, he was arrested and later convicted.

In one of the worst Supreme Court cases, Plessy v. Ferguson held that the Separate Car Act did not violate the equal protection clause of the Constitution. The reasoning? As long as blacks had a rail car of equal physical quality, mandatory racial separation did not render the service as discriminatory—in short, the separate but equal doctrine. Brown v. Bd. of Education overturned "separate but equal." In a sign of our troubled times, a court will now be put in the position of deciding whether Plessy (never formally overruled) or Brown applies to this case.

Learning from America’s (Possibly) First Gay Justice

No U.S. Supreme Court justice is—or has been— openly gay. However, a biographer and contemporaries believe that Justice Frank Murphy—who served from 1940-1949—was probably gay.

Why is this relevant today? Because this week, the Supreme Court will hear oral arguments on President Trump’s travel ban/Muslim ban.

Trump’s attorneys will argue that the precedent of Korematsu v. U.S. applies to this ban. They make a good point. That case involved FDR’s Executive Order 9066 that led to the internment of 117,000 Japanese residents and citizens in “relocation centers.” The Court upheld the validity of the executive order, citing national security concerns. The point of the majority ruling was that presidents have awesome constitutional powers to protect the nation from external threats.

The Court has never overruled Korematsu, even though liberal and conservative justices alike agree that the case was wrongly decided and is a blight on the Supreme Court’s record (exceeded only by Dred Scott, ruling that a slave is property, not a person).

The opponents of the travel ban will argue that it is, in reality, a Muslim ban (citing Trump's numerous tweets promising a total ban against Muslims); and that no president has constitutional authority to base any order on religious animus (hatred).

They will surely argue from Justice Murphy’s brave dissenting opinion in Korematsu. There he said that the exclusion of Japanese "falls into the ugly abyss of racism," and resembles "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy."

In stunningly blunt language, Justice Murphy also stated:

I dissent, therefore, 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. 

While serving as a justice, Frank Murphy led the effort to form the National Committee Against Nazi Persecution and Extermination of the Jews. Serving as committee chair, he declared that it was created to combat Nazi propaganda “breeding the germs of hatred against Jews.”

In other cases, he staked out path-breaking legal positions in support of African Americans, aliens, criminals, dissenters, Jehovah's Witnesses, Native Americans, women, workers and other “outsiders.”

Justice Murphy had a 40-year relationship with Edward G. Kemp. The men worked together for many years, lived together, and were bachelors.  Murphy’s biographer, historian Sidney Fine, found support in the personal letters of Frank Murphy that the two men had an intimate relationship.

The point? Homosexuals were the subject of prolonged, intense legal discrimination. Their private intimacy was criminalized. They could not serve in the military. They could not marry. The list goes on. Frank Murphy likely experienced this intensely personal form of legalized ostracism and denial of basic rights. He could not change the law for the LGBT community—but he laid the foundation for ruling that a travel ban against Muslims is unconstitutional.

Could Supreme Court Be Majority Immigrant?

Jacqueline Hong-Ngoc Nguyen, born in 1965 in Viet Nam

Is it possible to imagine a Supreme Court composed of a majority of immigrant judges by the year 2024? Yes, even if it’s improbable.

Let’s begin with a key fact: The Court has already had six foreign-born justices: one from Scotland (James Wilson, 1789-1798); two from England (James Iredell, 1790-1799 and George Sutherland, 1922-1939);  one from Ireland (William Paterson, 1793-1806); one from Turkey (David Brewer, born to missionaries in Turkey, 1889-1910); and one from Austria (Felix Frankfurter,  1939-1962). 
The Constitution says nothing about citizenship for federal judges.

Srikanth "Sri" Srinivasan, born in 1967 in Chandigarh, India is already seated on the most important U.S. appeals court, the D.C. Circuit Court of Appeals. Appointed by President Obama, he was confirmed by a 97-0 vote. He has argued 25 cases before the high court, an unusually high number.

Jacqueline Hong-Ngoc Nguyen, born in 1965 in Viet Nam, is seated on the powerful United States Court of Appeals for the Ninth Circuit. The daughter of a South Vietnamese army major who had worked closely with U.S. intelligence officials, she lived in a tent on Camp Pendleton for months after her family arrived from Viet Nam. The Senate confirmed Nguyen to the Ninth Circuit in a 91-3 vote on May 7, 2012.

Luis Felipe Restrepo, born in 1959 in Medellin, Columbia, is seated on the United States Court of Appeals for the Third Circuit. He was sworn in as a United States citizen on September 7, 1993. On January 11, 2016, the Senate voted to approve his nomination, 82-6.

Denny Chin, born in 1954 in Hong Kong, came to the U.S. in 1956. On October 6, 2009, President Obama nominated Chin to the United States Court of Appeals for the Second Circuit. The Senate confirmed his nomination by a 98–0 vote on April 22, 2010. Judge Chin presided over the criminal trial of Bernie Madoff. He is remembered for concluding that Madoff's crimes were "extraordinary evil" and wanted the sentence to have a strong deterrent effect.

Marina Garcia Marmolejo, born in 1971 in Nuevo Laredo, Mexico, is a naturalized U.S. citizen. She is currently a federal judge in the Southern District of Texas. Democrats from the Texas House delegation and Republican Senators John Cornyn and Kay Bailey Hutchinson agreed to recommend Marmolejo for a Laredo vacancy on the Southern District of Texas.

Will President Trump Pardon People Convicted of Marital “Race-Mixing”?

The President tweeted this afternoon that he is strongly considering pardoning the black legendary boxer, Jack Johnson, who was convicted in 1913 by an all-white jury of transporting a woman across state lines for “immoral purposes.” Johnson was convicted under the Mann Act, a federal law. Thus, the president has the power to pardon, even posthumously.

This a moment to think about a sea of racial laws that criminalized interactions—particularly marriages— between whites and people of other races.

Here is simply one of many cases that show the depravity America’s race laws: In State v. Jackson (1883), a Cape Girardeau white woman was indicted for having intermarried with Dennis Jackson, a person having “more than one-eighth part of negro blood.” 
The Missouri Supreme Court ruled that the indictment was valid because the criminal statute did not violate the Constitution. The court offered this despicable reasoning:

Nor is it one of the natural rights of man to marry whom he may choose. Under the Jewish dispensation persons nearly related by ties of blood intermarried, but in no Christian land are such marriages tolerated. The right to regulate marriage, the age at which persons may enter into that relation, the manner in which the rites may be celebrated, and the persons between whom it may be contracted, has been assumed and exercised by every civilized and Christian nation; and the condition of a community, moral, mental and physical, which would tolerate indiscriminate intermarriage for several generations, would demonstrate the wisdom of laws which regulate marriage and forbid the intermarriage of those nearly related in blood.

It is stated as a well authenticated fact that if the issue (children) of a black man and a white woman, and a white man and a black woman, intermarry, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites, laying out of view other sufficient grounds for such enactments.

President Trump cannot pardon Mr. and Mrs. Jackson because they were convicted by a state court under state law. But while he scores a point by pardoning Jack Johnson, he can rehabilitate his tattered reputation for racist tweets and incitements-- for example, by retracting his racist "breeding" tweet from earlier this week (below, using a common animal metaphor for race-mixing laws, i.e., referring to non-white reproduction as "breeding").

Little Rock, Arkansas protest to keep anti-miscegenation laws on the books. Photo courtesy of Wikimedia.Commons) Photo at top shows a protest at the Arkansas statehouse in 1953 to keep in place a criminal law to prohibit "race mixing."

The Customer Is Not Always Right

The two men arrested in a Starbucks store for the apparent offense of being black while waiting for a friend illustrates a common experience of discrimination against minority customers.

What about cases where customers harass a company’s employees? These situations are also common—and employers don't take action because employees do not speak up.
A growing number of cases involve white customers who refuse service by black or immigrant employees. This is not uncommon in hospitals. 

In 2013, a white man with a swastika tattoo insisted that black nurses not be allowed to touch his newborn. That led several black nurses to sue the Michigan hospital, claiming it bowed to his illegal demands, and a rapid settlement in one of their lawsuits.
Perhaps the most common situation, however, is when male customers harass female employees. 
Kelly Andersson was serving six men drinks in a bar in Oregon when one of the men ran his hand up her leg and under her skirt. She recounts the episode: “First time I just gave him the death glare. Second time I told him (a bit loudly) that if he put his hand under my skirt again I’d pour a drink over his head. Next trip back, OF COURSE, he does it. I plucked a strawberry daiquiri from my tray and dumped it gracefully on top of his head and smirked as it ran down onto his nice cream-colored turtleneck sweater.’’ Apparently, she did not report the problem to her employer.

Caitlyn Collins, also a waitress, recalled: “I’ve had countless men use predatory language, grab me inappropriately and suggest that I sleep with them. If I play along and smile, they always tip well, and they always come back. As emotionally draining as it is, the trade-off is worth it because I don’t have to deal with these men outside of work, and their money allows me to pay for my education and save for my future.” Apparently, she did not report the problem to her employer. (New York Times, Harassment and Tipping in Restaurants: Your Stories (March 18, 2018)).

But employers are liable for customer harassment of workers if the employee notifies supervisors and no remedial action occurs.

In 2016, a federal jury awarded $250,000 in compensatory damages to a former employee of Costco Wholesale, Inc. who was harassed and stalked by a customer. The company failed to take measures to protect a female worker in Glenview, Illinois after she complained that a male customer harassed and stalked her.

In a different case (Crist v. Focus Homes), patients in a residential care facility groped a female nurse. After she complained to her employer, nothing changed: the employer took no action, and the groping continued. The federal appeals court, ruling for the nurse, said that an employee does not assume the risk of harassment.

In Lockard v. Pizza Hut, the restaurant took no action to protect the plaintiff waitress, despite her reports of increasingly abusive behavior by some of the customers. The Court wrote: ‘‘An employer who condones or tolerates the creation of such an environment should be held liable’’ even if a non-employee creates that environment.

The Starbucks case, and customer harassment cases, point to a need for companies to eliminate discrimination by employees against customers, and customers against employees— but it is easier said than done. 

“We’re not in Kansas anymore”: Remembering the Oklahoma City Bombing, April 19th

It started in Grand Junction, Kansas. A white man, seething with hate and addicted to gun shows, blended in when he rented a Ryder truck. He packed the large van with 4,000 pounds of explosives, drove a short distance to Oklahoma City, and blew the Alfred P. Murrah federal building to smithereens. That was April 19^th. The year was 1995.

Timothy McVeigh is the deadliest American terrorist, having killed 168 people.

In an interview conducted by an SMU journalism student, Michelle Rausch, outside the Waco Compound in 1993, McVeigh said a crazy thing that could pass for a Breitbart editorial today: “The government is afraid of the guns people have because they have to have control of the people at all times. Once you take away the guns, you can do anything to the people. You give them an inch and they take a mile. I believe we are slowly turning into a socialist government. The government is continually growing bigger and more powerful, and the people need to prepare to defend themselves against government control.”

Fast forward to Kansas on April 18, 2018.

Three white men from Dodge City were convicted in federal court of trying to blow up a local apartment building where Somali immigrants lived. The leader called himself the Orkin man, and referred to Muslims as cockroaches.

Later yesterday, another federal court held in contempt Kansas Secretary of State Kris Kobach— the person whom Donald Trump named to lead the so-called national voter fraud commission. Kobach imposed unconstitutional requirements that Kansas voters appear with a passport or birth certificate to prove that they are American citizens. He’s refusing to back down. Will the president pardon him?

Maybe Dorothy from the Wizard of Oz was right. We're not in Kansas anymore. We’re in a strange land where a small man blusters behind a Praetorian guard and a curtain to stir fear throughout the land.

White Terrorism, or “We All Have the Right to Hate”?

The term white terrorism is mentioned too little, probably because few whites are Muslims— and that form of terrorism is heavily distorted as a threat to public safety in America. In reality, white terrorism is the far greater threat.

A month ago, four men in Ford County Illinois were arrested on terror-related charges in connection with bombing the Dar Al-Farooq Islamic Center outside Minneapolis. They await trial. (Photo below of white terror group leader.)

Today, a federal jury in Wichita, Kansas convicted three men (pictured above) of plotting to bomb an apartment complex where Somali immigrants lived and worshiped in Garden City, Kan., giving prosecutors a victory at a time when threats against religious and racial minorities are rising nationally.

“These defendants conspired to build a bomb, blow up a building and murder every single man, woman and child inside,” Tony Mattivi, a federal prosecutor, told jurors during closing statements.

The defense team—playing to political themes that resonate in America’s heartland— made the following non-legal, highly political arguments. Quoting now from the New York Times reporter at the trial:

“Defense lawyers tried to convince jurors that their clients were manipulated by the F.B.I., and had been unfairly targeted for exercising their rights to own guns and speak freely. “He was a member of a militia. He loved his guns. This was a lifestyle,” Melody Brannon, a lawyer for Mr. Allen, told the mostly white jurors….

“It is not morally right to hold such hate, but it is not legally wrong,” said James Pratt, a lawyer for Mr. Stein, who acknowledged that his client referred to Muslims as ‘cockroaches.’ Mr. Stein referred to himself, the recordings showed, as an ‘Orkin man,’ referencing the pest extermination company. “We all have the right to hate,” Mr. Pratt added."
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Note to Mr. Pratt: There is no right to act on hate-- and you know that. What an appalling defense.

Female Pilot Heroically Lands with Full Engine Failure: Vindication of Diversity

Meet Tammie Jo Shults, shown here with a passenger yesterday in Philadelphia. No, she is not a flight attendant. She is the Southwest pilot who was the captain during yesterday’s tragic and deadly flight. A veteran Navy jet pilot, she is described by passengers as having “nerves of steel.”

What does research say about gender differences among experienced pilots? Susan Baker et al., "Characteristics of General Aviation Crashes Involving Mature Male and Female Pilots," Aviation, Space, and Environmental Medicine (2001) reports this summary:

 Methods: 144 female pilots were compared to 287 male pilots, all of whom were pilots during an aviation crash.

Results: Male Pilots: Mechanical failure, gear up landings, improper IFR approaches, and collisions with wires or poles were more common for men than women.

Female Pilots: Loss of control on landing/takeoff was more common in crashes of female pilots. Mishandling aircraft kinetics was the most common error of pilots of both genders and was noted more often in female pilots’ crashes (81% vs. 48%).

Males’ crashes were more likely to involve flawed decisions (29% vs. 19% of females' crashes) or inattention (32% vs. 19%).

Older pilots made fewer errors: among males age 55-63, 26% of crashes has no pilot error compared with only 7% at age 40-49.

 Editorial Comment: When FDR integrated blacks into the military, there was fierce pushback by people who believed that these service members would be inferior to whites.

When West Point admitted its first female class in 1976, there was strong pushback. Women were stereotyped in several denigrating ways—too weak, too timid, too interested in finding a husband, and so on.

When President Clinton initiated the “Don’t Ask, Don’t Tell” directive to prohibit military discharges on grounds of homosexuality, some people pushed back with the stereotype that these service members would be blackmailed or engage in predatory behaviors in private quarters.

And just recently—not once, but twice— President Trump has pandered to the same ugly stereotypes about transgender service people, depriving the U.S. of a fully representative population in our nation’s military.

Thankfully, an experienced female pilot with nerves of steel was at the controls yesterday. Thankfully, too, diversity was vindicated over stereotypes.

Gorsuch’s Swing Vote— A Stunner— Blocks Hasty Deportations

Justice Neil Gorsuch broke a 4-4 tie between liberal and conservative justices today in a major immigration ruling.

Any alien who is convicted of a violent felony is automatically removable.

But suppose someone is convicted of a “crime of violence,” where no violence actually occurs. 

As Republicans have pushed sensible law-and-order laws to extreme reaches, they have passed laws such the Armed Career Criminal Act. The law has a long list of potentially violent crimes.

Take the case of James Garcia Dimaya, from the Philippines. He was admitted to the United States in 1992 as a lawful permanent resident. In 2007 and 2009, he was convicted twice of breaking and entering a residence. He served two years for each crime for a total of four years.

Under a section of the Immigration and Nationality Act, Republicans had successfully incorporated the language from the Armed Career Criminal Act to widen the sweep of aliens who could be automatically deported.

In 2015, the Supreme Court struck down the Armed Career Criminal Act because it was unconstitutionally vague. Its list of crimes did not enumerate actual violence, nor use of a weapon in commission of a non-violent crime. It simply said that crimes, such as breaking and entering, had so much potential for armed violence that the law would categorically treat simple breaking and entering as a violent crime.

Today, the same question was presented, only with this difference: Was the same language unconstitutionally vague when it is embedded in the nation’s immigration law?

 Four conservatives said there’s no constitutional problem here; four liberal justices said the law should be struck down under the Johnson precedent. 

Justice Gorsuch agreed with the liberal justices.

What does this mean?

First, it will slow down a large tributary of deportation cases that the Trump administration has been rushing to use.

Does this mean Justice Gorsuch will be a moderate? No one knows, but here is some research for perspective. Prof. Andrew D. Martin (University of Michigan) and Kevin Quinn (Cal-Berkeley) have tracked voting patterns among justices.

They find that—contrary to public perception and conservative lore— Justice Antonin Scalia peaked as a conservative vote in 2000; thereafter, he became noticeably more moderate. See this chart:

By the time he died, Justice Scalia was a solid conservative but his overall voting pattern put him in range to side with liberals on a fair number of cases. The most conservative justice is Thomas, followed by Alito.

I think that describes Justice Gorsuch’s probable trajectory—a solid conservative vote who will occasionally cross over to vote with liberals.

It is a good day for America’s constitutional system.

Does a Monkey Have a Right to Sue Over His Selfie?

The macaque in this photo grabbed David Slater’s camera and snapped some selfies (see photo). Slater saw an opportunity to peddle the picture for money. As the “monkey selfie” grew in popularity, and was part of a book, PETA (People for the Ethical Treatment of Animals) sued. They claimed that the macaque, named Naruto, had the same authorship rights to the photo as any human would, meaning Slater infringed those copyrights by republishing it in a book about the infamous photo.

So, PETA sued Slater and Slater’s book company for Naruto’s share of the proceeds. PETA intended for the money to benefit the preserve where Naruto lives, so there was a real economic objective behind the lawsuit.

Seven months later, PETA and Slater settled: Slater agreed to pay 25% of the proceeds to the Indonesian preserve that Naruto calls home.

Next, PETA and Slater moved to dismiss the lawsuit—and here’s where the case takes a legal twist.

This week, the court refused to dismiss the matter. The Ninth Circuit said, “this case has been fully briefed and argued by both sides, and the court has expended considerable resources. ... Denying the motion to dismiss ensures that ‘the investment of public resources already devoted to this litigation will have some return.’”

What the court meant was that dismissing the lawsuit would deprive courts the opportunity to develop precedent over the basic issue of whether an animal has standing to sue in federal court.
What makes this case interesting from a legal standpoint is that Naruto created this picture-- not the human being named david Slater-- and Naruto smiled in an especially appealing manner, as if this macaque were human. 
Where the animal creates value independent and apart from human intervention, should the animal share in the rights? 

Silly though the case seems, it also has real ramifications for animals whose very existence is threatened by reckless human beings. Courts are struggling to figure out how to draw the line—or even if they should draw a line—where an animal sues for a specific court remedy (this is not the first animal standing case). 
Naruto’s selfie may, over time, evolve into a “groupie” for other animals.  
The other possible implication involves Bill O'Reilly and other MeToo lawsuits. If a wealthy party offers enough money to "kill" a lawsuit, the public interest in policing misconduct is lost in the process.
For the past 30 years, this has been a growing problem in sexual harassment and assault cases. Perhaps these settlements have lulled bad actors into a sense of being above the law. 
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Photo Credit: David J. Slater and Naruto (this blog site does not charge, advertise, or otherwise exploit images for compensation of any kind. Slater's book, available for purchase, is Wildlife Personalities on Amazon, https://www.amazon.com/WILDLIFE-PERSONALITIES-David-J-Slater/dp/1320262961).  

I Beg Your Pardon, Could Trump Be “President for Life”?

President Trump has raised the specter of two dangerous warps to the U.S. Constitution: abuse of the pardon power, and the suggestion that he could be president for life.

The first problem looks more serious for now. There is no limit on the president’s pardon powers. Under Article II, Section 2 of the United States Constitution states that the president “shall have power to grant reprieves and pardons for offenses against the United States.” President Trump has turned this power into a political device. He pardoned Sheriff Joe Arpaio and now has pardoned Scooter Libby. He has also hinted at pardoning anyone convicted by the Mueller investigation. (The president cannot be indicted or convicted of a crime while in office, so he cannot pardon himself.)

What does this mean for the future? Possibly, an amendment to limit this power (other constitutions require a recommendation for pardon from government ministers). English monarchs were prone to abuse this power, as noted by Prof. David Gray Adler: “the pardon was not so much an act of grace as it was a tool of pecuniary and political aggrandizement. From the outset, the pardon was abused for personal gain.” Parliament has, from time to time, limited the pardon power.

But lest you dismiss the president-for-life line from President Trump, it probably wasn’t a joke. In early March, upon hearing that China’s President Xi engineered a constitutional coup that made him “president for life,” President Trump "joked", “I think it’s great.” (See picture.)

But wait, you say—he can’t do that because the 22nd Amendment limits a president to two terms or ten years.

True, but this does not unambiguously block his path to a longer reign in office. 
In 1804, the 12^th Amendment was enacted to provide the current form of electing a president and vice president. The 22^nd Amendment (ratified in 1951) would bar President Trump from running for a third term or serving more than 10 years.

That limit does not apply to a vice president. Now suppose after two terms President Trump runs for vice president behind a pliable puppet presidential nominee. After the election, if the puppet president resigned, Trump would become president.
The point is that these two amendments, enacted about 150 years apart, allow this significant loophole. Only a despotic president could contemplate being president for life. But in this bizarre scenario, Trump would be serving the term of the elected president-- someone other than him.

Anyway, you say, such a thing would never happen! 

A version of it did take place-- in Russia. Reaching his two-term limit in 2007, President Putin announced that Dmitri Medvedev was his preferred successor. Medvedev served out his term, and supported Putin for president—and Putin thereby circumvented the two term ban (there is no ten year limit in Russia). 

With some adaptations here and there, Trump could run the table on the 22^nd Amendment and serve beyond the constitutional limit.

Surprises in My Meeting with NFL Union Leader

Yesterday, I sat in on a conversation with the Executive Director of the NFL players union, DeMaurice Smith.

Here are some brief impressions and surprises.

He acknowledged it’s very hard to get players even to contemplate a strike. That likely means that Roger Goodell, the NFL Commissioner, has the same sense. That puts the union at a significant disadvantage in bargaining its next labor agreement. The surprise is that he openly acknowledged this reality.

Smith also said that NFL locker rooms are filled with players who are more interested in lowering their taxes than thinking like a union brother. That’s not too surprising since most of these players don’t come from union households where they might develop working class values. The surprise is Smith’s characterization of many of his members as tax-conscious Republicans.

Smith said that because of this mindset, the union is somewhat limited in taking on broad social justice causes. The kneeling protest is an exception, along with its embedded message of racial injustice. But this is not a union geared to supporting Fight for $15 for low-wage workers, and Smith implied as much. The surprise is that Smith said that his union has formally rejoined the AFL-CIO, and he on the AFL-CIO executive board. This means that Smith is trying to broaden the support for his union within the ranks of labor.

The biggest surprise was Smith’s extended discussion about the possibility of removing all player agents from the apparatus of player-team dealings. Instead, he’d like to hire a cadre of agents and subsume all player bargaining within the union. Smith makes two points here: first, players would save lots of money that they now spend on agents, and second, if the union had control over negotiations, no one would sign a contract that isn’t 100% guaranteed. That would be a very big deal because most players, even stars, rarely receive fully guaranteed contracts. By the way, there is ample Supreme Court authority to allow the union to take agents entirely out of the picture.

Smith didn’t comment at all on Colin Kaepernick. Perhaps he did at another point in the meeting after I stepped out. His union is not representing Kaepernick. The quarterback has hired outside counsel. But all of this is a tell-tale sign that there is some friction within player ranks and the players union about Kaepernick.

Smith added this mildly surprising analysis about Donald Trump’s insertion into the kneeling protest, stating that Trump’s use of the term son-of-bitches inflamed many players because they heard it in such deeply personal ways. Many players were raised in a single parent home. They heard Trump calling their moms “bitches.” Those are fighting words.

And in the final surprise of the meeting, Smith said that NFL locker rooms and practice fields are largely devoid of cursing. Few, if any coaches, swear at players. Times have changed. The players and the coaches co-manage an environment that is very public, where egos and reputations are very important. Cursing doesn’t fit anymore. In contrast, the current president finds occasions to curse in public (e.g., “sons of bitches” and “shithole” nations).

Two Girls: The Holocaust

I’ve handed you the front- and back-cover of a “book” (they are actually slides from a presentation I do for elementary students). I’m not writing this “book” to tell you how think about this. I invite you to think for yourself.

The Nazi girl is the creation of Hitler’s propaganda apparatus. She is collecting money for a youth hostel.

The other girl is Gabriella Lefkovits. She is my aunt, my father’s little sister in Nyermada, Hungary. She is shown as an 8 year old in a family portrait taken within a year of her death at Auschwitz.

Today, I asked 4^th grade students to compare similarities and differences between these girls. They had a lot to say.

The more you notice similarities and differences, the more you understand the Holocaust. (Click on each photo for more detail.)

Feel free to share your thoughts on FB, or privately with me at mhl@illinois.edu.

Grant’s Expulsion of Jews: What Does It Mean Today?

On December 17, 1862, during the Civil War, Ulysses S. Grant issued General Order No. 11. The order threw out all Jews in his western division of the Union Army. Grant gave Jews 24 hours notice to pack up and leave.  
A month before, Grant sent an order to Major-General Stephen A. Hurlbut: “Refuse all permits to come south of Jackson for the present. The Israelites especially should be kept out.” A day later, he instructed General Joseph Dana Webster: “Give orders to all the conductors on the [rail]road that no Jews are to be permitted to travel on the railroad southward from any point. They may go north and be encouraged in it; but they are such an intolerable nuisance that the department must be purged of them.” 
How was the order enforced? Clearly, some degree of physical stereotyping would be required to effectuate it. 
Later, Grant wrote to General Sherman that he needed to issue the expulsion order because “of the total disregard and evasion of orders by Jews.”

What set Grant off? The immediate cause was a Union embargo on the cotton trade. In his words, the underground market for cotton was run “mostly by Jews and other unprincipled traders.” 

This religious libel trafficked in the long-running stereotype of Jews as greedy, selfish actors. William Shakespeare's The Merchant of Venice and Charles Dickens's Oliver Twist reinforced the stereotype of the crooked Jew. 
Essentially, Gen. Grant charged all Jews as being corrupt.

Jewish community leaders spoke out. By January 4, 1863—a year after the expulsion took effect— President Abraham Lincoln revoked the General Order on January 4, 1863.

Reading the text of the order is also instructive:

“The Jews, as a class violating every regulation of trade established by the Treasury Department and also department orders, are hereby expelled from the Department [of the Tennessee] within twenty-four hours from the receipt of this order.”

This week, Jews and all people of conscience commemorate the Holocaust.

Grant’s bigotry against Jews offers some timely comparisons.

Candidate Donald Trump promised voters a “total and complete shutdown of Muslims entering the United States.” See this news story from December 7, 2015—11 months before the election (https://www.washingtonpost.com/news/post-politics/wp/2015/12/07/donald-trump-calls-for-total-and-complete-shutdown-of-muslims-entering-the-united-states/?utm_term=.8efa85df421b). This amounted to a total exclusion based on Grant’s similar thinking about Jews.

On July 26, 2017, President Trump announced that transgender people would no longer be allowed to serve in the U.S. military—a total exclusion based on Grant’s similar thinking about Jews (as of October 2017, 20 countries allow transgender service members, as varied as France and Germany to Cuba and Thailand).

On August 31, 2016, candidate Trump specifically libeled Mexicans as a categorical group, saying:  “They're bringing drugs. They’re bringing crime. They’re rapists.”

The destruction of most of European Jewry was built on the type of despicable group libel communicated by Gen. Grant and Donald Trump. 

***

There is a noteworthy postscript to Grant. He changed. After the Civil War, he was the primary commander for leading troops into Southern states to root out the Ku Klux Klan. 

By 1875, the Klan was crushed due in no small part to Grant’s relentless military and political efforts (by supporting law-abiding sheriffs and elected politicians, and working for elections free of Klan intimidation). 
Later, as president he appointed more Jews to office than any previous president. He condemned atrocities against Jews in Europe, putting human rights on the American diplomatic agenda. Grant was also the first president to attend a dedication of Jewish synagogue.

I welcome FB post, and your privately communicated thoughts to mhl@illinois.edu. Surely, I have only scratched the surface. Thanks to a wise friend who alerted me to Grant’s order.

How Red and Blue States Hold Employers Hostage for Immigration Problems

Suppose you work for a company that does business in Arizona and California. For simplicity, let’s say your company is the large grocery chain, Albertson’s.

In Arizona, your entire company is subject to a “death penalty” law if you knowingly hire unauthorized aliens on two different occasions. The law in question is called the Lawful Arizona Workers Act. A sharply divided Supreme Court, split in a 5-4 vote, ruled that the state law did not interfere with federal immigration law. 
Liberal dissenters argued that the ruling undermined one, uniform set of immigration laws as they relate to employment. Federal law fines employers who violate the law by hiring undocumented workers; only if there is a pattern of violations does the law allow for criminal fines and up to six months in jail. The dissenters’ point: It’s overkill to put an entire company out of business in a state for two violations of immigration law.

Other liberals were upset by the ruling. 
But now they have turned the tables in California.

California recently enacted Assembly Bill 405. AB 405 applies to private employers—in my example, Albertson’s. 
The law bars employers from admitting ICE inspectors to “nonpublic” areas of a jobsite unless the inspectors have “a subpoena or court order,” thus impeding ICE’s surprise workplace raids. 
It also requires employers to notify their workers when ICE asks to inspect a company’s employment records—records that may reveal that some employees are in the U.S. without permission. Finally, it provides that employers (who must by federal law verify a worker’s eligibility to work at the beginning of employment) may not re-verify the same worker later. 
Violators are subject to a $5,000 fine for the first offense, and $10,000 for each subsequent offense. It’s not the death penalty, as in Arizona, but it, too, has a degree of overkill. For more, click here: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB450

Whatever is an optimal immigration policy, holding private employers hostage to severe consequences for hiring undocumented workers (Arizona) or allowing ICE on the their property (California) is blaming the wrong person—the employer—for a much bigger problem created by forces far beyond their control. Sad to say, other red states are copying Arizona, and blue states are copying California.

PHOTO CREDIT: PAUL FELL, ARTIZAN SYNDICATE

Thank God for Chinese Americans and Mormons

My wife sent me this photo today from Kentucky. It's a stunning reminder that America has turned its clock back about 150 years. 

In 1875, under the pretext that we “exist in a free, enlightened, and Christian country,” President Ulysses S. Grant urged Congress to root out polygamy, a practice embraced by Mormons in Utah. In the next paragraph, he had the same type of Christian logic-leap as President Trump: “While this is being done [outlawing polygamy], I invite the attention of Congress to another, though perhaps no less an evil— the importation of Chinese women, but few of whom are brought to our shores to pursue honorable or useful occupations.” Translation: Women from China are innate prostitutes —but in reality, many women from China came to America to find a Chinese husband and raise a family.

Thus, in 1875 Congress enacted a law that devastated the Chinese American community for nearly a century. 

The Page Act required any “Asiatic woman” to travel to the Consul Office in Hong Kong for an interview and visa to enter the U.S. A few women—136—were able to prove to the Consul in 1882 that they were married to a Chinese man who was in the U.S. All other women were turned back.

The Page Act had severe consequences for suppressing Chinese American families. George Anthony Peffer, in a 1986 study, concluded that “although the Exclusion Act transformed Chinese Americans into a declining immigrant group, it was the Page Law that exacerbated the problem of life without families in America’s Chinatowns.” Stanford Lyman, in his book Chinese Americans (1974) concluded that the Page Act meant that for nearly 100 years, American Chinatowns contained very few families—and it was not until the 1970s that a gender balance began to emerge between Chinese American men and women.

It’s hard to see how Christian values could lead to a legal attack on a peaceful religious minority, and also cause family suppression on grounds of race. Today, these two groups achieve well above the norm for Americans in academic and professional success. It's no thanks, however, to the Christian values that were funneled through politics.