For Liberals: Is There Anything Encouraging About the Supreme Court?

Yes. But to be clear, much of this past term was very discouraging. Since this is widely reported—and grieved by liberals— let me point out two modest signs of encouragement.

I clearly recall when Anthony Kennedy was appointed by President Reagan. I was a recent law graduate. The appointment depressed me, much as his retirement does. Very strange, my change in attitude. 

For 17 years, he was a solid conservative vote. Suddenly, he started to be the fifth vote in major cases on gay rights and abortions.

He changed—somewhat—and it is the way he changed that liberals recall as he retires.

Chief Justice John Roberts is on a similar trajectory. Over the past 12 years, Roberts has moved steadily from the right to the center in his voting. Over the last two years, he has voted as often as Justice Kennedy as the “median justice”— a statistical measure of a justice’s vote compared to each other on a liberal-to-conservative scale.

If you are a liberal and think this is small comfort, you’re probably right. But keep in mind that Roberts was the key fifth vote to uphold the constitutionality of Obamacare (Affordable Care Act).

My hunch is that Roberts has accepted the fact that he can be a pivotal justice by siding with the remaining four liberals, just like Kennedy. What will be his issues? Will he move more to the center? Time will tell.

One other item of note: The Court this term issued only 59 signed opinions, the lowest number since 1858. 

Personally, I hope they continue on this trend to decide fewer cases—and I am serious. 

It’s time for Congress to stand up to the executive branch, whether the president is Trump, Obama, or the next person who governs by executive order. The nation will be better off with fewer major controversies settled by the Supreme Court (e.g., the Bush-Gore election of 2000).

Judge Brett Kavanaugh and Me: One of Us Is on the Short List

In 2009, Judge Brett Kavanaugh and I published research articles in Minnesota Law Review, a respected outlet for legal scholarship.

His article is titled "Separation of Powers During the Forty-Fourth Presidency and Beyond," is here, http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Kavanaugh_MLR.pdf).

In it, he makes the argument that a sitting president should never be required to sit for any type of investigative hearing, nor turn over documents. The constitutional framers, he argues, believed that impeachment was the only recourse against lawless behavior of a sitting president.

My article, “Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitrations: An Empirical Analysis,” (here, http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Leroy_mlr.pdf), argues that employers are incentivized to disregard sexual harassment because (a) they force so many women to take their claims to arbitration, instead of court, and (b) the financial consequences—which I measured—  made breaking the law more tolerable than eradicating harassment.

Kavanaugh’s research article (with its obvious appeal to President Trump) and well-earned conservative credentials make him an attractive finalist for Donald Trump’s nominee for the Supreme Court. He is a highly regarded judge.

The Nancy Pelosi Effect: Time for Union Leadership to Change?

(Nancy Pelsosi pictured with President John F. Kennedy republished by Business Insider)

Once a union elects someone as president, that person stays in power for 20 or more years. That was my finding in a research study in the 1980s—and its probably true today.

Let’s look at two prominent labor leaders, Randi Weingarten (president of teachers union) and Leo Girard (president of steelworkers union).

Weingarden was never a teacher. She was a labor lawyer who worked on contract negotiations and arbitrations and then transitioned to union politics.

She was first elected to a national leadership position in 1997. She remains in a position of power as president of a national teachers union.

In 2003, Weingarden reportedly sold the UFT’s headquarters at 260 Park Avenue South and two other buildings at 48 and 49 East 21st Street for $63.6 million and moved the union's offices to Lower Manhattan, purchasing a building at 50 Broadway for $53.75 million and leasing the building next to it, 52 Broadway, for 32 years. The UFT also financed a $40 million renovation of both buildings.

With yesterday’s Supreme Court ruling on unions dues, it seems like a good time to unwind the real estate holdings in lower Manhattan and move closer to teachers—closer in terms of how teachers work and live.

Leo W. Gerard was elected president of the United Steelworkers (USW) in 2001. He’s been president ever since.

The Democratic Party is stale. These union leaders are stale. Isn’t it time for a new generation of progressive leaders, people who are closer to their constituents in terms of life experiences?

Pack the Court: How Democrats Can Get Back the Stolen Supreme Court Seat

Senate Republicans stole a Supreme Court seat from President Barack Obama. Yes, it was lawful. But it will have long lasting consequences, including likely payback for Republicans.

For people who despair of Justice Kennedy’s retirement, the following history offers some solace.

In the late 1920s through mid-1930s, a conservative bloc of justices called the Four Horsemen struck down liberal Democratic laws. The Four Horsemen rode a car to work together to coordinate positions and arguments. They opposed New Deal policies for unemployment and economic recovery, and they invalidated state laws regulating labor and business relations.

The votes this term—for example, the anti-union 5-4 vote today in Janus v. AFSCME— resemble the votes of the Four Horsemen.

A fifth justice was a swing—but mostly conservative—vote. He was Owen Roberts. His role was similar to that of Justice Kennedy.

Public opinion reached a point of frustration with the Four Horsemen. They were blocking many progressive laws.

At that point, President Roosevelt proposed to “pack the Court” with his nominees.

To do that, he would need a statute from Congress to expand the Supreme Court from 9 to 15 justices. And here’s the interesting part: The number of justices on the Court is not set by the Constitution. It is set by a regular statute.

The Judiciary Act of 1789 set the number at six: a chief justice and five associate justices. In 1807, Congress increased the number of justices to seven; in 1837, the number increased to nine; and in 1863, it rose to 10. In 1866, Congress passed the Judicial Circuits Act, lowering the number of justices to seven. In 1869, Congress raised the number of justices to nine, where it has stood ever since.

Back to Justice Owens: He started to vote with liberals after FDR proposed the packing plan.

The implication? If Democrats run the table by electing a president and regaining control of the Senate, and House, they can amend the Judiciary Act and increase the Court to 10 or 11 (or another number). 
They could argue they are taking back the seat that Republicans stole, and adding another seat as a lesson—and punishment— for stealing Obama’s chance to name a justice.

It would add to the bitterness of our politics. But we’ve had it before.

How Jimmy Carter and Donald Trump Are Similar: Migrants on Military Bases

These two presidents couldn’t be more different, but they ordered migrants to be detained on military bases.

In the late 1970s, waves of “boat people” came ashore (or were rescued by the Coast Guard) in Florida from Haiti and Cuba. The public was divided. Many Floridians were outraged to see destitute brown and black people appear out of nowhere in their communities.

President Jimmy Carter resettled new migrants from Cuba and Haiti to a federal fort in Puerto Rico in Executive Order 12244. The order had an oblique quality. It designated Fort Allen in Puerto Rico as a place for the immediate relocation and temporary housing of Haitian and Cuban nationals. It also provided for the immediate relocation and temporary housing of Haitian and Cuban nationals in Florida; and suspended federal water safety and environmental laws for this purpose. Nothing in the title of the executive order suggested that it dealt with immigration.

The lessons?

One is that our immigration laws and procedures cannot handle a surge.

Second, both presidents bent to public pressure in local communities to remove unwanted immigrants.

Third, Carter put his order under a heading that dealt with sanitation standards. Trump, facing a similar challenge, incites Americans to hate on migrants.

Fourth: As noted by a blog reader, Carter did not separate children from families.
****
Postscript: Many of the Cubans and Haitians were granted asylum. Forty years later, they and their children are mostly an American success story.

Trump Falsely Claims U.S. Has No Merit-Based Immigration. We Do. Here Are Main Points

Whether you favor more immigration, the same, or less, let’s be clear: the U.S. already has a merit-based immigration system (separately, we have asylum and lottery visas). The public record on Melania’s entry to the U.S. is unclear. She came to the U.S. to work as an elite fashion model. She had a job here before she arrived (common for her skill level). Maybe she had an O-1 visa which is specifically for fashion models (downside: it’s temporary); or maybe she had an EB-1 visa is for “extraordinarily talented” people (hence, called the Einstein visa but commonly used for elite pro athletes). EB-1 is a permanent visa—a green card.

I’ve kept the descriptions for merit-based visas short in the hope that you’ll quickly read them.

When Trump says “skill based immigration” he means an English proficiency test. The following visas are based on occupation, skill, training, and education—but not an English proficiency test. 

TEMPORARY VISAS (FROM SEVERAL MONTHS TO THREE OR MORE YEARS)

H-1A - registered nurses

H-1B - workers with "specialty occupations" admitted on the basis of professional education, skills, and/or equivalent experience;

H-1C - registered nurses to work in areas with a shortage of health professionals under the Nursing Relief for Disadvantaged Areas Act of 1999;

H-2A - temporary agricultural workers coming to the United States to perform agricultural services or labor of a temporary or seasonal nature when authorized workers are unavailable in the United States;

H-2B - temporary non-agricultural workers (e.g., hotel maids) coming to the United States to perform temporary services or labor if unemployed persons capable of performing the service or labor cannot be found in the United States;

H-3 - aliens coming temporarily to the United States as trainees, other than to receive graduate medical education or training;

O-1, O-2, O-3 - temporary workers with extraordinary ability or achievement in the sciences, arts, education, business, or athletics; those entering solely for the purpose of accompanying and assisting such workers; and their spouses and children;

P-1, P-2, P-3, P-4 - athletes and entertainers at an internationally recognized level of performance; artists and entertainers under a reciprocal exchange program; artists and entertainers under a program that is "culturally unique"; and their spouses and children;

Q-1, Q-2, Q-3 - participants in international cultural exchange programs; participants in the Irish Peace Process Cultural and Training Program; and spouses and children of Irish Peace Process participants;

R-1, R-2 - temporary workers to perform work in religious occupations and their spouses and children.

See other sections of this Glossary for definitions of Exchange Visitor, Intracompany Transferee, and U.S.-Canada or North American Free-Trade Agreement classes of nonimmigrant admission.

PERMANENT VISAS (GREEN CARD)

Employment-Based Immigration: First Preference EB-1 Extraordinary Ability

Employment-Based Immigration: Second Preference EB-2 Advanced Degree

Employment-Based Immigration: Third Preference EB-3 “Skilled workers” are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature; also  “Professionals” are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are a member of the professions

Employment-Based Immigration: Fourth Preference EB-4 “Religious workers”

Employment-Based Immigration: Fifth Preference EB-5 “Investor visa.”   Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors.

President Trump: Let’s Discuss “Beaner Hopping” and “Curb Stomping” of Immigrants and Gays

As President Trump paints illegal immigrants as public safety threats, let’s talk about how white supremacist gangs terrorize immigrants and gays.

On Nov. 8, 2008, Marcelo Lucero, an Ecuadorian immigrant, was murdered in the town of Patchogue, N.Y. Police say a gang of teenagers who called themselves the Caucasian Crew were responsible for the killing.

They target Latino residents as part of a sport they termed “beaner-hopping.”

White-member gangs also use “curb stomping” for an initiation rite.

Featured in a 1998 movie, American History X, this intensely violent act is called a curb stomp, also curbing, curb checking, curb painting, or making someone bite the curb.

It begins by confronting a suspected immigrant or gay person on a street.

The victim is forced to the ground. His mouth is forcefully opened on a curb. Usually, a gang member holds down the victim's head.

The attacker stomps on the victim’s head from behind, causing severe injuries and sometimes death.

In the picture above, Dane Hall, 20, lost six teeth, suffered a broken jaw in multiple places and a piece of broken bone was shoved into his brain during an attack while he was leaving Club Sound in Salt Lake City on Friday night, Aug. 26, 2011. Hall is openly gay and believes the attack was a hate crime. He said his attackers uttered gay slurs during the assault.

The Yellow Deli— Operated by Religious Sect— Cited for Child Labor

“Twelve Tribes” is a cult-like Christian group with 3,000 members in the U.S. and other countries. Local “tribes” live together in self-sustaining communities, with many operating cafes — all named The Yellow Deli Cafe — in small nearby towns. In the U.S., they operate charming restaurants in tourist towns such as Rutland, Vermont and Oneonta, New York.

Part of the problem seems to be underage wait staff or kitchen help. But the problem is much deeper.

These communes also manufacture and market cosmetics. Acure, a cosmetics retailer, was a purchaser of Twelve Tribes products until a few weeks ago. 

Amazon was a distributor of these products.

Last week, “Inside Edition” ran a blockbuster story using a hidden video camera to show underage children (as young as about 10) working at the Twelve Tribes cosmetics packaging factory in New York. See here https://www.youtube.com/watch?v=0Q4v9bhVL3w.

The New York Department of Labor recently found several child labor law violations at a soap factory owned by the Twelve Tribes. It has more investigations in progress.

A woman raised on one of the communes told reporters that the labor violations have been going on for years, but it’s not the only type of abuse the children there are facing.

In a Twitter message, she said, “What the public doesn't seem to understand is that ritualized beatings, ones canonized in the leaders’ “Teachings” with step by step instructions on how to “train” your children by “breaking their will,” that when you mix this type of child rearing with a utilitarian government like they have in the Twelve Tribes; the result is child slavery in our backyards.”

Combine Departments of Labor and Education? How Trump Plan Would Hurt You

No one has ever proposed combining the U.S. Department of Labor and Department of Education. But President Trump will make such an announcement shortly.

Most people don’t know what the Department of Labor (DoL) does for them. Here are some of its key functions.

Wage and Hour: This agency sues employers who fail to pay people minimum wages and overtime. Hourly employees cannot afford to hire a lawyer; and 54% of employers force people into arbitration. DoL sues in behalf of regular workers who are cheated on their pay. They don't go to arbitration. They sue in federal court.

Safety: OSHA is a part of DoL. It enforces workplace safety laws. Combining DoL and the education department would likely leave less money to enforce safety laws. Workplace injuries have been declining steadily from 2003-2016, during the Bush and Obama administrations. That trend would probably be reversed if the agencies are “streamlined.”

Child Labor: This is no longer a serious problem in the U.S. That’s because DoL takes a zero-tolerance approach against anyone who uses child labor. (Note: federal law exempts child labor in common sense settings such as family farms, camps, babysitting, newspaper delivery and similar … but not large scale commercial farming, factories, and so on).

Labor Statistics:  We take this for granted, but DoL collects an amazing amount of data that affects our lives. They track unemployment claims which in turn drives key economic policies. They track inflation, measured as CPI (Consumer Price Index). This has a major effect on the interest rates for our mortgages and credit cards. 
Are you or your parents drawing Social Security? If so, there is an automatic COLA (cost-of-living index) that annually increases payouts to prevent erosion due to inflation. DoL sets that baseline figure. The combination idea is a backdoor way to politicize the Bureau of Labor Statistics—a decidedly non-political outfit— to lower your benefits.

Pension Insurance: Some of us are in a private sector, traditional retirement plans. The DoL has a branch called Pension Benefit Guaranty Corporation. When companies such as Trump Casino (Atlantic City, NJ) go bankrupt (as his company did), people like Trump are off the hook for pensions—but a government insurance plan pays benefits to workers and retirees who are stiffed.

Black Lung Benefits: Who can forget the political love affair between Donald Trump and coal miners? DoL administers a special insurance fund for miners who are diagnosed with pneumoconiosis, commonly called black lung disease. Disabled miners are also entitled to medical services needed to treat their disease. The Black Lung Disability Trust Fund pays these benefits when there is no liable coal mine company or when the liable company either cannot or does not pay. When the Trust Fund pays on behalf of a liable coal company, the Department seeks reimbursement.

The thought of diluting the resources of the Department of Labor is part of a larger reverse Robin Hood strategy to take from the poor and give more to the rich. More people are becoming uninsurable due to pre-existing conditions as Trump abandons the Affordable Care Act. All the talk about the $1,000 bonuses for some employees has subsided—meanwhile, companies have record stock buy-back programs with their tax cuts.

With this proposal, the basics of the early 1900s are on the line—child labor, minimum wages, and pensions.

PHOTO CREDIT: DAILY KOS

President Taft’s 1909 Inaugural Address Emphasized Immigration and “Sanctuary Cities”

If we are looking for closure soon on our immigration problems, consider this shocker: President William Howard Taft told the nation in 1909 that we have a  problem with “Asiatic immigrants” and that certain cities and states were interfering with federal enforcement of immigration laws. 

Here, he is referring to a reverse problem from today-- cities that offered sanctuary to thugs and racist politicians who harmed immigrants. His probable focus was a 1906 ordinance by San Francisco that forbade Chinese, Korean, and Japanese students from attending public schools. The order nearly triggered a war with China. Some leaders in China viewed the 1906 San Francisco earthquake (which happened several months before the school ban) as divine retribution for anti-Chinese attitudes in California, and helped to tamp down their feelings about going to war. 

The rest of this post consists of two paragraphs from his speech:

“The admission of Asiatic immigrants who cannot be amalgamated with our population has been made the subject either of prohibitory clauses in our treaties and statutes or of strict administrative regulation secured by diplomatic negotiation. I sincerely hope that we may continue to minimize the evils likely to arise from such immigration without unnecessary friction and by mutual concessions between self-respecting governments. Meantime we must take every precaution to prevent, or failing that, to punish outbursts of race feeling among our people against foreigners of whatever nationality who have by our grant a treaty right to pursue lawful business here and to be protected against lawless assault or injury.

This leads me to point out a serious defect in the present federal jurisdiction, which ought to be remedied at once. Having assured to other countries by treaty the protection of our laws for such of their subjects or citizens as we permit to come within our jurisdiction, we now leave to a state or a city, not under the control of the Federal Government, the duty of performing our international obligations in this respect. By proper legislation we may, and ought to, place in the hands of the Federal Executive the means of enforcing the treaty rights of such aliens in the courts of the Federal Government. It puts our Government in a pusillanimous position to make definite engagements to protect aliens and then to excuse the failure to perform those engagements by an explanation that the duty to keep them is in States or cities, not within our control. If we would promise we must put ourselves in a position to perform our promise. We cannot permit the possible failure of justice, due to local prejudice in any State or municipal government, to expose us to the risk of a war which might be avoided if federal jurisdiction was asserted by suitable legislation by Congress and carried out by proper proceedings instituted by the Executive in the courts of the National Government.

SOURCE: 

William Howard Taft, March 4, 1909: Inaugural Address, available in http://www.presidency.ucsb.edu/ws/index.php?pid=25830 

The Skinny: Comparing Trump, Obama on Immigration

Deportations and Convictions: Not much difference so far. Obama figures for 2015 and 2016 are at left. Trump figures are at right. So far, Obama's figures are higher than Trump's. No wonder the ACLU called Obama the Deporter-in-Chief.

Family Separation: Both presidents have used it. Obama did this for fathers and teenage sons, using the Flores settlement as a basis. Trump is separating young children from whole families. Obama stopped when a court ordered a halt. A court has ordered a halt in California. Trump is continuing in Texas.

(Deportations 2008-2016)

Workplace Enforcement: Yesterday, ICE raided a meat processing plant in Massillon, Ohio, arresting more than 100 workers. Obama raided a meatpacking plant in Pottsville, Iowa. He deported more than 100 workers and criminally prosecuted the plant’s owner.
DACA: Obama policy. Trump has favored it. He has also opposed it.

Tone, Messaging: Obama: Low key enforcement with emphasis on deportation. Trump: Criminalizing and racializing immigration enforcement.
Media: Obama's vigorous enforcement was not played up by the media. Trump's enforcement is highly publicized. Is it media bias, or the result of what these presidents wanted? You be the judge.

Trump Is Not the First U.S. President to Fan Anti-Immigration Hysteria

No living American can recall hearing a president whip up popular hysteria about immigration. But President Trump is at least the third president to stoop so low.

President Grover Cleveland sounded this anti-immigration trope in his 1885 inaugural address: “The laws should be rigidly enforced which prohibit the immigration of a servile class to compete with American labor, with no intention of acquiring citizenship, and bringing with them and retaining habits and customs repugnant to our civilization.”

President William McKinley struck an anti-immigration theme in his first inaugural address in 1897: “Our naturalization and immigration laws should be further improved to the constant promotion of a safer, a better, and a higher citizenship. A grave peril to the Republic would be a citizenship too ignorant to understand or too vicious to appreciate the great value and beneficence of our institutions and laws, and against all who come here to make war upon them our gates must be promptly and tightly closed.”

What to make of this comparison? 

First, when presidents make these public pronouncements, they follow up with very restrictive and harsh enforcement of immigration laws. 

Second, they reinforce irrational concerns that immigrants have no legitimate place in building America. 

Finally, Cleveland and McKinley were insignificant presidents—but their intolerance of immigrants lived on in U.S. policies for many decades (until 1965).

In my opinion, the Trump hysteria is, and will be, a long-term American feature. I hope I am wrong.

Obama Used Family Separation, Too: A Court Stopped It

You might recall these images of children—mostly teenagers— who hopped on long freight trains that were crossing the Mexico-U.S. border in 2014. A surge of gang violence in Central America compelled parents to put their kids on these trains. Other families escaped the gang violence by fleeing together to the U.S.

The Obama administration was not in favor of open borders nor soft on immigration. As the surge grew out of control, they separated families, too, in makeshift detention centers. The ACLU filed for an emergency ruling to stop the practice.

The practice was halted by a court ruling in 2015. The Obama administration was ordered to stop detaining asylum-seeking Central American mothers and children in order to deter others from their region from coming into the United States.

The law that President Trump refers to in tweets is complicated. It grows out of a 1997 case (involving the Clinton version of ICE, then called INS).

The 1997 case resulted in an agreement, called the “Flores Settlement,” between the executive branch and immigration plaintiffs.

As explained in a recent ruling by the Ninth Circuit in California:

“Under a 1997 consent decree known as the Flores settlement, unaccompanied children could be held in immigration detention for only a short period of time; in 2016, a federal judge ruled that the settlement applied to families as well, effectively requiring that they be released within 20 days. Many were released — some with GPS ankle bracelets to track their movements — and asked to return for a court date sometime in the future (underlining added to show difference in types of border crossing situations).”

Congress codified the Flores Settlement, meaning they fleshed out more specific aspects of the no-separation policy.

The Ninth Circuit boiled it down in these terms:

“Most relevant to this case, the Act also transferred a number of the functions relating to the care of unaccompanied minors from the former INS to the Director of the Office of Refugee Resettlement (“ORR”) of the Department of Health and Human Services (“HHS”).

The Act charges ORR with “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child.”

To that end, the [Act] gives ORR responsibility for “coordinating and implementing the care and placement of unaccompanied alien children,” “ensuring that the best interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child,” “implementing policies with respect to the care and placement of unaccompanied alien children,” and identifying “a sufficient number of qualified individuals, entities, and facilities to house” such children. 

***

Key to note, neither the Flores Settlement nor the 2002 law deal with families that are separated at the border. They deal with unaccompanied minors (teenagers). 

That is why the Obama and Trump administrations have said that there is legal authority to separate families.

My take? Shame on the Obama administration. Shame on the Trump administration. 
A gap in the law-- meaning that the Flores Settlement and 2002 law only dealt with unaccompanied teenagers, not families separated at the border-- is not a green light to act immorally.

Unhappy Father’s Day: The Dad of Trump Immigration Advisor

The picture is from Hollywood Reporter, showing White House Senior Advisor Stephen Miller in his synagogue’s confirmation class photo (he’s at the back, far left [wrong position for him]). 

The New York Times is reporting this weekend that Miller is the architect of the family separation policy. The paper is also reporting that others in the White House view the policy as “unfeasible in practice and questionable morally.”

Maybe Michael Miller, Stephen’s dad, is having a happy Father’s Day weekend.

As a Jewish dad with similarities to Michael Miller, I suspect he is profoundly unhappy.

The dad is described as a “liberal-leaning” real estate investor. But that’s just a start.

Stephen’s mother’s family came to America in the early 1900s to escape a Belarus pogrom— a state-encouraged form of mob action where peasants attacked Jews. His great-grandmother only spoke Yiddish, a language virtually unique to Jews, when she arrived at Ellis Island. 

Her progeny followed so many immigrant families—from all over the world— to assimilate and achieve success.

Stephen Miller is a deeply stained racist—a guy who invited Richard Spencer, America’s leading neo-Nazi, to Duke while this senior advisor was a student leader of the Duke Conservative Union.

As a Jewish father, and a son of an immigrant, I feel empathy for Michael Miller.

Being a father doesn’t mean raising your son or daughter to be your clone.

But fathers and mothers usually care about instilling core values in their children.

That’s probably why Michael and Miriam Miller enrolled Stephen in religious school.

How Stephen Miller ended up 18 years after this sweet if trite synagogue photo organizing the White House effort to separate more than 2,000 young children from their parents since April is a profound mystery.

Can a President Use an Executive Order to Require Loyalty? (Yes.)

Kidding or not, President Trump said yesterday that Kim Jung Un’s people sit up when he speaks, and “I want my people to do the same.”

Can a U.S. president issue—and enforce—a loyalty order?

The precedent for this is Executive Order 9835, signed by President Harry S. Truman in 1947. Truman was accused of being soft on Communism by Republicans. The order applied to all federal employees.

The order declared “there shall be a loyalty investigation of every person entering civilian employment” in any facet of the executive branch of the U.S. government. It provided for termination of employment of disloyal employees.

To put the EO into effect, Truman named a Loyalty Review Board. In concert with the FBI, the program investigated over 3 million government employees. About 300 Americans lost their jobs.

The program looked for “derogatory information” on employees. If these individuals were active in civil rights groups, this was treated as derogatory information.

The program penalized blacks especially harshly. Prof. Mark Buford’s research recounts news stories from black newspapers reporting that “FBI agents and loyalty board personnel are including reports of interracial association in the category of ‘derogatory’ information against federal workers in loyalty proceedings.” Truman’s Attorney General identified “interracial groups active in the fight for Negro civil rights” as subversives.

President Eisenhower revoked the order with his EO (10450) in April 1953.

Meanwhile, Sen. Joseph McCarthy took up where Truman left off. He used Congress to investigate “disloyal” Americans for subversion. The primary targets of such suspicions were government employees, those in the entertainment industry, educators, and labor union activists.

McCarthy and Donald Trump’s mentor, a lawyer named Roy Cohn, launched a parallel loyalty program aimed at then-suspected homosexuals. Called the “Lavender Scare,” McCarthy used his Senate powers to orchestrate the mass firings of gays and lesbians who worked for the U.S. government in the 1950s from the United States government.

All of these “loyalty” programs spilled over into private sector and state employment. Professors, union leaders, school teachers, civil rights activists, and suspected gays and lesbians lost their jobs due to damaging insinuations about their lack of loyalty. 
And that was before Twitter.

CARTOON BY KEVIN SIERS, CHARLOTTE OBSERVER (2017)

Father’s Day Remembrance: The Day My Dad Was Separated from His Parents at Auschwitz

The Nazis separated my 17-year-old dad from his parents on a train platform at Auschwitz. 
My father never forgot that trauma. 
He was put in a line for labor. 
His parents were put in a line for death. 
He jumped back to the death line. 
He was forcibly taken from his parents and hit with a cane.

How comparable this is to Trump’s policy is matter for our personal judgment. 
It is not the same, in my view. 
But it’s too close.

White Heritage: Then and Now

Corey Stewart is a white nationalist Republican nominee for the Virginia senate race. His views are consistent with the racial segregation policies invoked by fellow Virginian, President Woodrow Wilson.

Stewart recently tweeted: “Nothing is worse than a ‘Yankee' telling a Southerner that his monuments don’t matter.” Twitter, April 24, 2017.

Wilson implemented a policy to segregate blacks from whites in the post office and other federal workplaces.

This practice began on May 31, 1913, when seven black clerks at postal headquarters were screened off from their white coworkers, although none of their coworkers had requested it.  Restrooms and some work rooms at Post Office Department headquarters and in a few other agencies’ headquarters were also segregated.  The lunch room at headquarters, meanwhile, had apparently already been whites-only, and remained so.  When asked why there was no lunch room for black employees, the building superintendent bluntly explained that “as no restaurants in Washington were open to colored people, the government could not be expected to furnish one.”

African-American political leaders, many of whom had encouraged their followers to vote for Wilson, felt betrayed.  In 1914, President Woodrow Wilson—himself a Virginian— met with an angry delegation of black protesters, informing them that segregation was implemented “for their own benefit.” One member of the black delegation, William Monroe Trotter, demanded an accounting, noting that “for fifty years white and colored clerks have been working together in peace and harmony.” Trotter’s angry tone infuriated Wilson, who told Trotter that there was no discrimination in federal agencies, and that “segregation had been inaugurated to avoid friction between the races, not to injure the negro.”

Too bad William Faulkner, an astute observer of race discrimination, isn’t alive to tweet. He might repeat the following from his Requiem for a Nun: “The past is never dead. It’s not even past. All of us labor in webs spun long before we were born, webs of heredity and environment, of desire and consequence, of history and eternity.”

Rebels Employed Blacks: Reflections on the Confederate Civil Service

Who knew? A remarkable study, published in 1959 by Prof. Paul Van Riper, intensively studied how the Confederate government organized its civil service. The Confederacy had an undersized civil service compared to the Union. Amazingly, this government employed blacks as free people. 
Prof. Van Riper does not view this as hypocrisy or irony—it simply reflected how short the Confederacy was on money and manpower.  What Prof. Van Riper does not answer is where these otherwise-slaves came from; nor does he answer how whites and blacks worked side-by-side in this work environment.

I quote a key excerpt, and follow with a question for you:

The Quartermaster Department had control of the production and supply of clothing, blankets, tents, shoes, wagons, saddles, and harnesses. Early in the war, the President was authorized to detail skilled artisans to shoe factories, but an act of February 17, 1864, provided that such duties would thereafter be performed by men who were physically unfit for combat service.

In February 1865, the department reported that 3,451 Negroes and 2,299 adult whites were necessary to its operations. To this minimal total of 5,750 must be added at least 5,000 women employed part time or full time in the factories or doing piece work.

In an incomplete report, the Commissary Department stated that 1,783 male employees were indispensable to its operations. Civilians employed by the Medical Corps included hospital personnel and laborers. It is estimated, on the basis of appropriations requests and salary scales, that in 1865 the corps employed 150 civilian doctors, 1,000 nurses and cooks, 500 stewards, 1,300 wardmasters, 1,800 matrons, 1,500 laundresses, and 2,000 Negro laborers.

 The Bureau of Engineers, as the agency responsible for railway work and the building of fortifications, probably employed the largest number of Negro slaves and freedmen as laborers. The estimated total civilian employment of this bureau is 11,500.

Question for you: What does this mean? That evil and just governments were not all that different? Necessity is the mother of invention? Why didn’t this experience temper Jim Crow and segregation after the Civil War? What do you think? Post on FB or send me your thoughts at mhl@illinois.edu.

Still Relevant? The Almost Exchange of Union-Confederate Flags in 1887

Flag Day is this Thursday, June 14^th. Given the controversy over the national anthem, it’s useful to learn about this almost exchange of Union and Confederate flags in 1887.

President Grover Cleveland was informed that captured Confederate flags were stored in Washington D.C. offices and Northern statehouses, while captured Union flags were in Southern statehouses. He proposed a friendly exchange.

A storm of protest ensued.

Governor Foraker of Ohio flatly refused the executive order. He filed for a court order to prevent the Secretary of War from doing so. General Fairchild, of the Union Army, led the charge against returning any Confederate flag.

Take a moment to read his speech. See how much of it—if any—is relevant today. Drop me note on FB or at mhl@illinois.edu.

They tell us nowadays that all men are loyal. I thank God that it is so. But the Grand Army men have a loyalty that is spelled with capital letters; a loyalty without any "ifs" or "buts;" a loyalty which they will teach to their children and children's children; a loyalty teaching that the allegiance of every American citizen is due to the American flag under all circumstances, and if demanded they shall turn their backs upon their State flags and follow the Stars and Stripes.

The Grand Army men have always been the friends of the South from 1861 to 1887. They were the best friends of the Southern people when they saved them from themselves. When afflicted with yellow fever, when they wanted to build soldiers' homes, when Charleston was wrecked by earthquakes, the Grand Army men were the first to tender assistance.

We have no feeling of hate or malice toward the South, but we feel that they have no right to take back into their possession the relics of the rebels' flags. I believe, thank God, that the right to associate a State in the Union with a State which it was supposed was in existence during the war.

What would Missouri or Maryland or Kentucky do with the rebel flags if they were restored to them?

Destroy them I should hope. To return them would be a lesson in treason. (NYT, June 17, 1887, p. 1)
PHOTO CREDIT: BigAlBaloo

How a Fatal Kidney Disease Made a U.S. President an Unlikely Reformer

In 1883, President Chester Arthur signed the most important government reform bill into law (Pendleton Act). The law changed the “spoils” system, whereby victorious presidents fired federal workers, replaced them with supporters, and extracted “assessments” from their pay for more politicking.

Arthur was as unlikely to support these reforms as President Trump is likely to approve Robert Mueller’s investigation. Arthur had worked the spoils system to near perfection.

Here is the explanation from— of all people, urology researchers, Daniel Canter, Hailey Silverii Canter and Stephen Carriere. I quote hereafter.

The radical transformation of President Chester Alan Arthur, from a political to civil service reformer could be linked to his fatal diagnosis of Bright’s disease (chronic kidney disease) early on in his presidency.

 President Arthur became the 21st President of the United States in 1881 after James Garfield succumbed to an assassin’s bullet. Before being chosen as Garfield’s vice-president, Arthur was known as the consummate political insider during an era that was marked by political patronage or the spoils system. Thus, when Garfield died and Arthur assumed the presidential mantle, many considered him to have little interest in political reform. The etiology of Arthur’s transformation from insider to reformer is unclear, however, early on in his administration, Arthur learned that he had Bright’s disease, a progressive and, at that time, uniformly fatal form of renal parenchymal disease.

While Arthur’s role as a political reformer could be ascribed to his impending mortality, the extent of Arthur’s uremia, which resulted from progression of his Bright’s disease, may have moderated his temperament, softened deliberations, and hastened his signing of the Pendleton Act into law.

President Arthur’s motivation in signing The Pendleton Act remains unclear given his early history, but it is conceivable that the diagnosis and/or the effects of Bright’s disease contributed to his uncharacteristic action of signing into law such landmark legislation.

“With Jews We Lose” Campus Speaker Killed in Car Crash

Robert Ransdell of Florence, Kentucky was recently killed by a drunk driver.

Randsell was invited to speak by Prof. Buck Ryan in 2014 at the University of Kentucky for a Constitution Day event. Randsell ran as a Senate write-in candidate with the theme “With Jews We Lose.”

Ransdell was a former regional coordinator for the neo-Nazi National Alliance in Cincinnati and, most recently, coordinator for the neo-Nazi National Alliance Reform & Restoration Group, according to the Southern Poverty Law Center. The National Alliance was for decades "the most dangerous and best organized neo-Nazi" organization, the law center said.

Campus leaders at UK had no prior knowledge that Ransdell would speak. 

After the event, they strongly denounced his message. 

Appropriately, too, they said that speech cannot be censored on their campus because of the First Amendment—but such speech should be strongly confronted and rejected.

In 2014, many people—myself included— would dismiss Ransdell as a fringe lunatic. He lived long enough, however, to see a U.S. president who equated him to "fine people" who protested against racism at Charlottesville.

Kaepernick's Case: Can an Arbitrator Subpoena Trump and Pence?

I share my written interview with Law360 on this topic.

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Arbitrators routinely issue subpoenas under the LMRA for persons to appear and for production of documents. Most of the time, the parties readily consent to the subpoena.

From my experience as a labor arbitrator, I’d describe this as a voluntary and self-regulating process—for example, compelling people in a termination case to appear at a hearing.

On rare occasion, a party ignores or challenges a subpoena. In these rare cases, a federal court has enforced my subpoena. 

I haven’t gone to court for this—the party requesting the subpoena has done so.

But even then, it’s not a done deal. As an arbitrator, I cannot enforce a subpoena. People can simply not appear.

In those very rare cases, I allow the party who sought the subpoena to put on testimony and enter exhibits; and in these uncommon instances, I have found facts in favor of that party, to the detriment of a recalcitrant or obstructing party. 

So, that’s one distinct possibility here.

Even then, however, it’s not an automatic win for Kaepernick. He still needs to have something for the arbitrator to look at. In that vein, I think a better path is for Kaepernick to subpoena the emails, text messages, phone records, flight logs, and league meeting records that involve owners.

Even if these materials only reference Trump or Pence, it puts the arbitrator on a much better footing to find facts in Kaepernick’s favor.