Does a Printer Have a Religious Right Not to Print a Brochure for an LGBTQ Group?

A reporter with Crain’s Chicago Business posed this scenario to me today:

Citing religious beliefs, a printer declined to print a brochure for LGBT Community Fund, one of six "identity funds," focused on a specific population, housed at Chicago Community Trust. The LGBT Community Fund is filing a complaint with the Illinois Department of Human Rights this coming week.

Here is what happened: About two weeks ago the creative director at the marketing communications firm hired to design the brochure sent the files for the brochure to the print shop. The project was ready to go, and the owner of the shop had quoted the price and put the job on the shop's schedule.

 After the designer sent him the files to print, the owner called her and said he could not do the job based on his religious beliefs.

 The owner found the designer another print shop, which matched the price and completed the job on time.

The owner says that he is a Christian and his beliefs in Scripture caused him to turn down the job. It is a family-owned business.

Again, he was asked only to print the brochure. He did not design or create it. And, just for the record: The designer of the brochure is not gay or lesbian.

***

Here is my answer:

If the printer is relying on the Supreme Court’s decision in Masterpiece Cake Shop, he will be disappointed that the ruling does not protect his religious beliefs in this instance. The Court’s ruling was narrow, relying heavily on the fact that the Commissioners expressed hostility to religion in ruling against the cake maker.  As long as Illinois officials handle the LGBTQ group’s complaint without voicing religious antipathy, they will be free to enforce its very broad no-discrimination policy.

The other aspect to note is that these religious freedom cases are narrowly focused on wedding ceremonies. They involve cake makers, photographers, and wedding venues. Because marriage and weddings are so closely identified with religious beliefs, some courts side with the purveyors of services. 

The printer in this case seems to be saying, essentially, that he has a religious right to avoid doing business with all people of the LGBTQ community. No court has come close to defining religious freedom so expansively.

***

Coincidentally, I received this note via email today. It speaks for itself:

Hello Michael ,

I saw that you mentioned nclrights.org here in http://profleroy.blogspot.com/2015/07/can-state-outlaw-city-ordinance.html and I wanted to share my gratitude for your work on the promotion of LGBTQ-related issues.

I’d like to suggest that you also share an important LGBTQ online safety guide which came out recently. Did you know that 73% of LGBTQs have been harassed online due to sexual orientation or gender identity? This guide aims to empower them and give them the tools to protect themselves online.

https://www.vpnmentor.com/blog/lgbtq-guide-online-safety/  

I like how they give a few tips and practical suggestions for each situation.

Thanks for helping protect LGBTQs online.

Is Justice Fair? “Against Settlement”

In my law class tomorrow, we will discuss “Against Settlement.” This essay, written by Prof. Owen Fiss in 1984, raises serious questions—for lawyers but also for everyone.

In brief: Over the past 40 years, court rulings have shunted many disputes away from court and into arbitration. Also, as lawsuits have become exorbitant, ordinary people just “lump” unjust experiences (example: #MeToo experiences)-- or they settle because they lack money and access to see lawsuits to a trial (it often takes five years to get before a jury).  

The counter-point is stated by Prof. Derek Bok: We sue too much; courts produce poor outcomes, and people should find ways to settle their disputes.

I leave you with the core of Prof. Fiss’s point:

“The disparities in resources between the parties can influence the settlement in three ways. First, the poorer party may be less able to amass and analyze the information needed to predict the outcome of the litigation, and thus be disadvantaged in the bargaining process. 

Second, he may need the damages he seeks immediately and thus be induced to settle as a way of accelerating payment, even though he realizes he would get less now than he might if he awaited judgment. All plaintiffs want their damages immediately, but an indigent plaintiff may be exploited by a rich defendant because his need is so great that the defendant can force him to accept a sum that is less than the ordinary present value of the judgment. 

Third, the poorer party might be forced to settle because he does not have the resources to finance the litigation, to cover either his own projected expenses, such as his lawyer's time, or the expenses his opponent can impose through the manipulation of procedural mechanisms such as discovery. It might seem that settlement benefits the plaintiff by allowing him to avoid the costs of litigation, but this is not so. The defendant can anticipate the plaintiff's costs if the case were to be tried fully and decrease his offer by that amount. The indigent plaintiff is a victim of the costs of litigation even if he settles.”

His paper is very readable. It is here: https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2206&context=fss_papers

Are Older Job Applicants Protected from Age Discrimination? No

Here is a trick that employers use to discriminate against older people (age 40 and up)-- they phrase the job description something like this: “The ideal candidate will have 7-10 years of experience.” Now, that’s not age discrimination per se—but you get the point.

Dale Kleber was 58 years old when he applied for a general counsel job at Illinois-based CareFusion in 2014. He had practiced law in this professional area for many years. He was never even contacted (a general counsel is essentially the top in-house lawyer for a corporation). Put another way: He wasn’t qualified because he had too much job experience, expressed in years (which correlates with age).

The job was titled: “Senior Counsel, Procedural Solutions.” The company eventually hired a 29-year-old for the position as according to the complaint.

The full appellate court for the Seventh Circuit decided the case (that’s unusual—usually these courts assign cases in panels of three). The entire argument was over the exact phrasing in the age discrimination law.

The majority said that when the law says “any individual” is protected, they mean any “employee.”

But U.S. Circuit Judge Frank H. Easterbrook disagreed. He said that “normally one word used in adjacent paragraphs means a single thing.” He continued: “The majority does not explain why the statute would use ‘individual’ in dramatically different ways within the space of a few words.”

My advice for older workers who face this all-too-common barrier: If you need to sue, look at state discrimination laws.

But even that can pose barriers.

Look at how Illinois’ employment discrimination law knocks Mr. Kleber out of the box:

(A) Employee. (1) "Employee" includes: (a) Any individual performing services for                  

remuneration within this State for an employer; (b) An apprentice; (c) An applicant for any apprenticeship.

Mr. Kleber didn’t apply for an apprenticeship.

Age discrimination is a problem. It is not being addressed adequately.

And Now for the Damages That the U.S. Government Will Likely Pay for the Shutdown

The fiasco of the government shutdown offers a stark—and basic—lesson for employers under the Fair Labor Standards Act (FLSA). 

You know that law as the minimum wage law. It also regulates overtime, and categorizes work into “exempt” (salaried) and “non-exempt” (hourly wages) group.

Unions have filed FLSA claims. They will likely win more than Congress will appropriate in a spending bill.

Here is why.

First, the federal government is an employer under FLSA— no less than my friends who have incorporated as dentists, lawyers, investment professionals, accountants, construction firms, etc.-- and who have one or more employees.

FLSA requires timely payment for work. That didn’t happen.

Many people think that when employees aren’t paid on time, the workers are entitled to “back pay.”

True—but they are often entitled to damages that essentially double the amount owed.

Why is that?

It’s to deter deadbeat employers from doing exactly what the United States has done to 800,000 workers— receive work but delay pay indefinitely. If the law only provided back wages, dead-beats would be incentivized to skip paying their workers.

Here is what a “Fact Sheet” says from the U.S. Department of Labor:

***

Q. What are liquidated damages?

A. The FLSA provides that a successful employee is usually entitled to double the amount of unpaid back wages, called "liquidated damages." Essentially, liquidated damages are in lieu of interest. An employer can avoid paying liquidated damages only if it shows that it acted in good faith in failing to pay for off the clock work, and that it had a reasonable basis to believe that it need not pay for off the clock work. "Good faith" has a special meaning under the FLSA, and requires that employers have made specific investigation of the application of the FLSA to particular types of employees. Liquidated damages are the rule, not the exception. Employees are normally entitled to liquidated damages.

***

To read the complaint by one of the unions, see https://www.afge.org/contentassets/bebfaea72bd2437fa071f5379f98261f/shutdown-december-2018-complaint---final.pdf.

The U.S. Government was ordered to pay liquidated damages for the last shutdown in Martin v. United States, 130 Fed. Cl. 578 (Feb. 13, 2017), https://www.courtlistener.com/pdf/2017/10/27/marrs_v._united_states.pdf 

PS: Who will pay liquidated damages? You and I, in our taxes.

Will President Trump Beat Down the House Doors? Worst Moments in Congressional History

I believe Speaker Nancy Pelosi is wrong to block the State of the Union Address. But I also believe that President Trump has a penchant for snatching defeat from the jaws of victory.

What if President Trump appears with locksmiths or construction workers and beats down the doors of the House with force?

If something like this happens, it might top two truly awful moments in Congressional history.

One was Sen. Strom Thurmond’s 24 hour marathon filibuster of the 1957 Civil Rights Act. That law was intended to end segregation. Sen. Thurmond had a “piss bucket” (see photo) just off the floor. While talking and keeping one foot on the floor of the Senate—thereby holding the floor—he relieved himself with the help of an intern. (Thankfully, there is no record of a poop pail.)

(Pause for squeamish readers to compose themselves.)

Perhaps worse, the House of Representatives erupted into a brawl as members debated the Kansas Territory’s pro-slavery Lecompton Constitution late into the night of February 5-6.

Around 2 a.m., Pennsylvania Republican Galusha Grow and South Carolina Democrat Laurence Keitt exchanged insults, then fists. “In an instant the House was in the greatest possible confusion,” the Congressional Globe reported. More than 30 Members joined the melee.

The event may hold a precedent for next week’s Address. 

Speaker James Orr, a South Carolina Democrat, gaveled furiously for order and then instructed Sergeant-at-Arms Adam J. Glossbrenner to arrest noncompliant Members.

House Archives report as follows:

“Wading into the combatants, Glossbrenner held the House Mace high to restore order. Wisconsin Republicans John “Bowie Knife” Potter and Cadwallader Washburn ripped the hairpiece from the head of William Barksdale, a Democrat from Mississippi. The melee dissolved into a chorus of laughs and jeers, but the sectional nature of the fight powerfully symbolized the nation’s divisions. When the House reconvened two days later, a coalition of Northern Republicans and Free Soilers narrowly blocked referral of the Lecompton Constitution to the House Territories Committee. Kansas entered the Union in 1861 as a free state.”

Free! Legal Words Clouds, Limericks-- and Access to 6.4 Million Court Cases

Harvard Law School has done something amazing and democratizing: They have created a free way for anyone to access 360 years of United States court cases dating from 1658 to 2018. Whether you are a student, voter, HR professional, lawyer, or none-of-the-above, you can actually have fun with it right now! (Directions in a minute.)

With 40 million pages scanned into a database, the folks at Harvard have had some fun: They’ve created work clouds for many years (I’m not sure it’s 360 years). These clouds give us a picture about American life—particularly, our disputes from year to year.

For example, in 2012 (above), arbitration was a very common word—and much smaller but appearing in that part of the 2012 cloud, we see “wages” and further down, “employees.”

In 1934, we see a very different picture—“truck,” and “collision” and so on.

In 1888, “marriage,” "patent," and “homestead” were common.

Oh, they have limericks, too, in the “Gallery” section (where word clouds also appear).

These are mostly lame or legalistic (and I don’t get it, often), but anyway:

He never had in the past.
discussion above.
the value thereof.
His knee was then in a cast.

(Huh?)

You can sign up at https://case.law/about/. It’s easy and takes a minute (again, free—you just need an email account).

In sum: I’ll figure this out and pass along tips. You can cursor to a state, pick a year, type in a word search, and …. Well, as I said, I need to figure it out and I’ll get back to you. I’ll leave you my own limerick:

Legal info online.

Is perfectly free and sublime.

Harvard Law isn’t snooty,

They’re sharing the booty.

Without charging us even a dime!

Recalling 1910: “Turn Back the Hindu Invasion”

Many of us have Indian neighbors, classmates, health care professionals, teachers, friends, and acquaintances. The following editorial appeared in a popular San Francisco newspaper, The Call, on February 1, 1910. Is this past, present, or our future? (Photo of East Indian Sikhs and Hindus disembarking in Canada after being denied entry in U.S.)

***

The importation of Hindu coolies apparently proceeds in large volume. Every steamer from the orient brings a load of these highly undesirable people, most of whom are quite likely to become a public burden. They do not fit into the domestic or social economy of this country. As laborer they are inferior and any severity of climate incapacitates them from work. "They are, in fact, the product of generations of lazy life under the tropics. We do not know how or why these people have been induced to come to California. We can understand that certain powerful influences which desire to introduce the cheapest kind of labor may have been brought to bear, but now that public attention has been directed to the influx by The Call it may be hoped that some means may be found to stop it. The Hindus are not wanted in California. They are not wanted in any part of the United States. It is a cruel kindness to bring these unfortunate people to this country. They are wholly unfitted for the strenuous life of the temperate zone and they are further handicapped by silly notions about caste and the special preparation of food in accord with caste rules. They are brought here to serve a selfish purpose, and they die oft like flies in the cold season. We have more Asiatics now in this country than is desirable, and the Hindus are the least useful and the most inefficient of the lot. They are dirty and quarrelsome as well as worthless in the field of labor. Nobody wants these people in California…. Their introduction is a menace to American civilization and it must be stopped. What sort of mongrel community is this, our California, like to become if these unassimilable breeds are to be permitted to occupy the labor field? We have fought the Chinese and the Japanese invasions with more or less success, but now we are threatened with something worse. If the immigration laws are not strong enough to hold off the incoming tide they must be strengthened, and in the meantime the officials, of this port will be, held strictly to account for a rigid enforcement of the laws. San Francisco Call (Feb. 1, 1910), available in https://cdnc.ucr.edu/cgi-bin/cdnc?a=d&d=SFC19100201.2.70.1&e=-------en--20--1--txt-txIN--------1

What Is TPS? Facts

We’re hearing about a class of immigrants who have TPS. The Immigration Act of 1990 created a new migrant protection, Temporary Protected Status.  TPS allows presidents to grant migrants a haven when they fail to qualify for refugee status but flee dangerous political situations or natural disasters.

Here are recent figures for TPS-immigrants: El Salvador, 204,000; Guinea, 2,000; Haiti, 50,000; Honduras, 61,000; Liberia, 4,000; Nepal, 10,000-25,000; Nicaragua,  2,800; Sierra Leone, 2,000; Somalia, 270; South Sudan, 300-500; Sudan, 600; and Syria, 5,000.

Presidents of both parties have been extending TPS status, waiting for Congress to resolve the fate of these migrants, since the early 1990s.

President Trump has already announced rescission of TPS status. This means that when these temporary stays expire, people will not be legally eligible to work. They will also be deported.

My thoughts: Whether a wall is moral or immoral is beside the point. Deporting these people will not make us safer or spare us from the drug trade. However, deportation will make a new humanitarian crisis as moms and dads with TPS status are separated from their American-born children for deportation.
OPTIONS:
1. Re-extend TPS status for a limited period (President Trump proposed that today in exchange for $5.7 in border-wall funds).
2. End TPS (President Trump has already done this. This means when TPS status expires for groups in 2019 and 2020 they are subject to immediate deportation).
3. Grant all TPS recipients permanent resident status. They could reside and work permanently in the U.S. They coud not vote or serve in the military.
4. Create a path to citizenship. Common ideas are 10-14 years of continuous U.S. residence, and no criminal record.

(Avoid Yawning) … Payroll Taxes and Federal Shutdown: How You Pay

We don’t like to pay taxes. We do like to see our tax money spent responsibly.

Most of us are employed. On payday, the federal government withholds taxes. That money is accumulating in the Treasury. It is not appropriated because the Senate and the President want to fund a border wall.

Question: May I stop paying federal taxes while the government is being run in this manner? Of course not. But my point is that we are connected to federal workers when we have part of the income we earned at our workplace withheld by the Treasury.

And what about unemployment benefits for federal workers? These individuals are eligible. This is a state, not federal, system. And here’s the point: Private sector employers are required with each payroll to remit a tax for unemployment. It varies from state to state, but let’s use a 1% of payroll estimate. In other words, private employers are paying unemployment benefits to federal employees who file claims.

This is a perversion of our basic employment laws.

Can Federal Judges Sue For Pay?

Like 800,000 other federal employees, federal judges are not being paid—though every one of them is working. But the administrative office for federal courts reports today that courts will run out of money on January 25^th. This will affect 94 district courts, 13 appellate courts—and 282,936 civil cases (e.g., lawsuits for civil rights violations, or pay claims, or discrimination), as well as 773,375 bankruptcy filings.

That last figure should give pause because if bankruptcy petitions are slowed or halted, it’ll have a major effect on banks and real estate companies.

But what about federal judges—can they sue for back pay?

Here is my point: In the Constitution, these judges were protected against the whims and caprice that English judges faced from time to time from a hostile Parliament or monarch. So, this language is in Article III, Section 1:

Article III (Article 3 - Judicial)

Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The Trump administration can spin this however they please, but not paying federal judges on time would be a first-time event—and it would be a diminution in pay. 

Furthermore, President Trump has, on numerous occasions, lambasted federal judges as being biased, or “Obama judges,” or of “Mexican heritage.” 

In other words, he has acted much like the type of tyrannical king that the framers had in mind for this provision of the Constitution.

The constitutional intrigue goes deeper. The most sympathetic federal judges to President Trump are originalists. There is no way to mince words here: the clear and specific intent of the Framers of the Constitution was to expressly prevent any reduction in pay for federal judges.

Will a federal judge sue to enforce the Constitution? Who would hear the case? Don’t care? A nation without a neutral judiciary cannot function as a  democracy.

My Interview with The Washington Post: “Compelled to work without pay, federal employees sue Trump, accusing him of violating 13th Amendment”

By Meagan Flynn

A group of federal employees working without pay during the partial government shutdown are likening the predicament to involuntary servitude in a lawsuit filed last week, accusing President Trump and their bosses of violating the 13th Amendment.

The lawsuit is one of several pursued by federal workers against the Trump administration as the government shutdown enters its 24th day, the longest in history, leaving hundreds of thousands of employees without a paycheck and, in many cases, struggling to pay bills. Employees at U.S. Customs and Border Protection, the Bureau of Prisons and Federal Aviation Administration have already filed lawsuits against the administration through their respective unions, among others.

But this case, filed Wednesday in the United States District Court for the District of Columbia, diverges from the others by invoking the 13th Amendment, which abolished slavery and involuntary servitude in the aftermath of the Civil War.

“If this is not resolved soon, affected employees may find that beginning February 1 they will no longer have health insurance,” Kator said. “And, if this lasts ‘months or even years’ as the President has suggested, there will be defaults, foreclosures and even bankruptcies. A promise to pay back pay will not forestall those consequences.”

The 13th Amendment argument may face an uphill battle, though. Michael LeRoy, a law professor specializing in labor and employment law at the University of Illinois, said that the standard for meeting the definition of involuntary servitude is extremely high. “The courts have a very narrow perception of it,” he said. “Courts don’t tend to view pressure as coercion.”

For example, the Supreme Court held in 1988 that pushing mentally disabled men to work on a farm for no wages by threat of institutionalization did not amount to involuntary servitude, because “psychological coercion” isn’t covered under the amendment. For similar reasons, circuit courts have held that threatening unpaid or underpaid migrant workers with deportation is not involuntary servitude. Teenagers forced to complete mandatory community service as a condition of graduation also isn’t involuntary servitude, as many disgruntled parents have tried to argue in court. And forcing an impoverished man who couldn’t afford a $3 tax to perform compulsory road work as an alternative also is not involuntary servitude, the Supreme Court ruled in 1916.

That case, Butler v. Perry, is the “closest case to the government forcing somebody to work and being the defendant in a 13th Amendment case,” LeRoy said. But Butler was a private citizen threatened with imprisonment for not working, whereas the government has the authority to call in employees to work without pay under the Antideficiency Act. The act prohibits the executive branch from spending money Congress hasn’t yet appropriated — including wages.

The problem with the law — as Todd Dickey, an assistant professor at Syracuse University, pointed out in a commentary for The Washington Post — is that it runs contrary to the Fair Labor Standards Act, which lays out minimum-wage requirements for government employees. That’s an argument federal employees have made successfully in the past, Dickey noted.

But as for involuntary servitude, LeRoy said there isn’t a precedent for the situation the federal employees have presented. At the same time, he said, a government shutdown has also never lasted this long, putting these federal employees in uncharted legal territory.

“If it’s true that somebody is threatened with termination if they don’t show up for a job when they’re not being paid today, that’s an unsettled legal issue — a court could rule that is legal coercion,” LeRoy said. “Losing your job for not working without pay is, in common vernacular, coercion. Whether that satisfies the legal definition of coercion is an open question.”

Congress passed legislation on Friday ensuring furloughed workers will receive back pay once the government reopens, which would still need to be signed by Trump. Kator argues that this won’t make a difference to the employees' 13th Amendment claims, because “the bottom line remains that federal employees are being compelled to work without pay for an indefinite period of time,” he said.

And there’s no telling how long that situation may last, with a deal for Trump’s border wall nowhere in sight. If Democrats don’t give in to Trump’s demands to pass legislation including $5.7 billion in border wall funds, the president has threatened to declare a national emergency to build the wall. On Sunday, Sen. Lindsey O. Graham (R-S.C.) urged Trump to reopen the government and continue negotiating with Democrats, and only resort to a national emergency if no progress is made.

If the shutdown ends in the immediate future, LeRoy said, the promise to pay back the workers would weaken their case. But if the shutdown lasts “months or years,” as Trump has said is possible, then “what this begins to look like is a form of indentured servitude,” LeRoy said, referring to the 18th century mechanism by which servants worked for masters for a period of time without pay, but were paid much later at the end of their service.

“That’s really what it will look like,” he said. “I think the longer it goes on, the fact that you have legislation in place is less significant to the government’s defense. The more this goes on, the more this swings in the direction of employees.”

See: https://www.washingtonpost.com/nation/2019/01/14/compelled-work-without-pay-federal-employees-sue-trump-violating-th-amendment/?utm_term=.d27d49a85003

“Jeer” at a Confederate Flag in South Carolina and Go to Jail

Tomorrow, we start class. I’ve assigned two cases involving employees who were fired for workplace disputes involving flags. They’re interesting cases.

In one, an employee of a defense contractor was ordered to fly a small American flag at his work station. He refused, citing First Amendment rights. He lost his case: An employee has no First Amendment rights in a private workplace. (Caveat: state constitutions expand First Amendment rights, and a state constitution may prohibit an employer from terminating an employee for political expression.)

In the second case, an employee in South Carolina was fired for pasting a Confederate flag sticker on his tool box. A black employee felt uncomfortable. The employer, on several occasions, told the Confederate-group member to take off the flag. Eventually, the employee was fired for insubordination. His lawsuit also failed.

The point isn’t so much what flags you must fly or not show at work: The point is to demonstrate to students that an employer has broad rights to regulate speech in the workplace.

Now, here’s the main reason for my post. South Carolina still maintains a criminal law that prohibits desecration of the American flag, the Confederate flag, and the state flag.

Some quick observations: It is constitutional to desecrate the U.S. flag. Personally, I abhor this. But that’s a demonstration of how broad our rights to free speech are.

Second, South Carolina hasn’t figured out they lost the Civil War. Protecting the Confederate flag side-by-side with the U.S. flag ignores the treason committed by seceding from the Union. It also ignores Appomattox, the Reconstruction, and contemporary norms (though we might be receding to a pre-Civil War view that aligns with South Carolina law).

Third, South Carolina does not care a wit about keeping blatantly unconstitutional laws on its books.

Finally, South Carolina has its own extreme version of PC speech—it is politically correct to protect the Confederate flag, and violating that principle subjects you to criminal action.

 SECTION 16-17-220. Desecration or mutilation of United States, Confederate or State flags.

Any person who in any manner, for exhibition or display, shall (a) knowingly place or cause to be placed any word, inscription, figure, mark, picture, design, device, symbol, name, characters, drawing, notice or advertisement of any nature upon any flag, standard, color or ensign of the United States, the Confederate States of America or this State or upon a flag, standard, color or ensign purporting to be such, or (d) publicly mutilate, deface, defile, defy, jeer at, trample upon or cast contempt, either by word or act, upon any such flag, standard, color or ensign shall be guilty of a misdemeanor and shall be punished by a fine not exceeding one hundred dollars or by imprisonment for not more than thirty days,….

Where Did Your Ancestors Come From? Check Out These Immigration Quotas

Our nation is having a tug of war about immigration. Most of us have some knowledge about the nationality of our ancestors.

President Herbert Hoover, in 1929, issued Proclamation No. 1872. With Congress, he set these nationality quotas. The text in red indicates nations that were limited to 100 immigrants per year.

Limits of 100 for: Afghanistan, Albania, Andorra, Arabian peninsula, Armenia, Australia, Bhutan, Bulgaria, Cameroon (British), Cameroon (French), China, Danzig,  Egypt, Ethiopia, Iceland, India, Iraq, Japan, Liberia, Liechtenstein, Luxemburg, Monaco, Morocco (French and Spanish Zones and Tangier), Muscat (Oman), Nauru, Nepal, New Zealand, New Guinea, Palestine, Persia, Ruanda and Urundi, Samoa, San Marino, Siam, South Africa, South West Africa, Tanganyika, Togoland, Togoland (French mandate), and Yap and other Pacific Islands.

Other nations were allotted: Austria 1,413; Belgium 1,304; Czechoslovakia 2,874; Denmark 1,181; Estonia 116; Finland 569; France 3,086; Germany 25,957; Great Britain and Northern Ireland 65,721; Greece 307; Hungary 869; Irish Free State 17,853; Italy 5,802; Lithuania 386; Netherlands 3,153; Norway 2,377; Poland 6,524; Portugal 1440; Rumania 295; Russia 2,784; Spain 252; Sweden 3,314; Switzerland 1,707; Syria and Lebanon 123; Turkey 226; and Yugoslavia 845.

A Reporter Asks: Can Federal Workers Win a Claim of Involuntary Servitude?

A reporter asked me this question today: “I’m … working on a story on a lawsuit filed by five federal workers alleging that their work without pay is a violation of the 13th Amendment. I came across your article in 2007 for the Berkeley Journal of Employment and Labor Law and thought that you may be able to offer important perspective as an expert source in the article on how the 13th amendment may or may not apply here.”

So, what’s the answer?

The bar for this type of lawsuit is extremely high. Generally, physical or legal coercion is necessary as a means that compels someone to work.

Still, a few successful cases are litigated every year, in civil and criminal cases. A common situation is when migrants who work in the U.S. are held against their will in a compound, typically surrounded by a locked fence. Another scenario is where a cult holds people in similar circumstances—again, with physical restraint— and requires work to be done.

But that’s a far cry from federal workers.

That said, President Trump has stated that he has “absolute authority” to declare a national emergency. His language connotes that he has no limits.

So, here are two plausible situations where a test case for involuntary servitude might arise.

One involves physical restraint. Suppose an air traffic controller or a Homeland Security employee is under an executive order that includes mandatory overtime to work for others who do not show for work. Further suppose that they are blocked from leaving during the overtime shift—let’s say the gate at work is locked for 24 hours. That seems plausible at the extremes of what is developing and would set up a decent test case of involuntary servitude.

The other involves legal coercion. Suppose essential government workers are threatened with criminal enforcement of a national security law—for example, aiding and abetting smuggling of drugs by not showing up for border patrol work. Nothing like this has ever happened—but again, what does the president see as his limits? If he has “absolute authority,” I can’t say that his unconstitutional view precludes the possibility of a Trump executive order that mimics martial law. That, too, would set up a good test case of involuntary servitude.

“IMPOSSIBLE is a word found only in the dictionary of fools.” What My Dad—an Illegal Immigrant— Thought About Work

President Trump criminalized illegal aliens—again—today. The two pictures in my post tell very different stories.

My Dad came to America illegally. He kept this a secret until late in his life, when my Mom pestered him to apply for Social Security. He had lied about his age when he came to America in 1949. That is because Jews over 18 years of age were barred entry.

My Dad served in the intelligence unit of the U.S. Army during the Korean War. His knowledge of Hungarian and smatterings of eastern European dialects was helpful to a military engaged in the Cold War.

After leaving the Army, he started a construction business. He credited Hitler with teaching him the construction business. Seriously. That’s how people survive concentration camps: they look for the smallest ray of hope (my Dad was in a camp that built camouflaged planes).

The sign above my Dad’s desk? “IMPOSSIBLE is a word found only in the dictionary of fools.”

***

Most illegal aliens come to the U.S. with legal papers, typically a tourist visa. They overstay their visit ... and blend in, hoping not to be caught. No wall will stop this.

Many illegal aliens change their names. The nameplate on my Dad's desk is: Robert LeRoy. 

His actual name? Otto Lefkovitz. 

LeRoy is not a Jewish name. It is a French name, "the king." An offshoot of the French Underground smuggled my Dad onto a trans-Atlantic steamer out of a grimy German port near Hamburg, Germany.... with false papers.

My Dad's story is typical-- more typical than the picture painted by President Trump.

Perhaps your ancestors came here illegally. And it's possible they didn't tell children and grandchildren, just like my Dad kept his past a secret.

What’s Behind the Donald Trump-Andrew Jackson Bromance?

The White House circulated this photo from last night’s televised speech. What’s behind President Trump’s affinity for Andrew Jackson? I cannot read the president’s mind—but I share the following letter from President Jackson, written in 1835, while he was president. I see similarities in the two presidents' tone and treatment of non-citizens—and also their propensity to use violent rhetoric in making political arguments.

Here is the background: In 1835, Northern abolitionists sent propaganda to the South.  U.S. postmasters refused to deliver many of these letters; and Southern whites destroyed letters, in violation of federal law. President Jackson responded by attacking the abolitionists who used the mail service legally and peacefully: 

“I have read with sorrow and regret that such men (abolitionists) live in our country— I might have said monsters— as to be guilty of the attempt to stir up amongst the South the horrors of a servile war. Could they (the abolitionists) be reached, they ought to be made to atone for this wicked attempt, with their lives. But we are the instruments of, and executors of the law; we have no power to prohibit anything from being transported in the mail that is authorized by the law... [The postmaster should] deliver to no person those inflammatory papers, but those who are really subscribers for them...  The postmaster ought to take the names down, and have them exposed thro the public journals as subscribers to this wicked plan of exciting the negroes to insurrection and to massacre.”

Source: https://pres-slaves.zohosites.com/andrew-jackson.html

Ten (Really Bad) Ideas for a "National Emergency" Order for the Next Democratic President

Yesterday, I offered my view that courts—including the Supremes— would rule that President Trump exceeds his constitutional authority by using national emergency powers to build the wall. I might be wrong. If so, here are some ideas for the next Democratic president.

1.     Build decent migrant centers and schools with unappropriated military funds on downsized or abandoned military bases in the U.S.

2.     Declare homelessness as a national emergency: Same idea as Point 1 but use funds for homeless shelters, job training, and essential health care.

3.     Declare lack of basic medical care as a national emergency: Use unappropriated military funds to provide urgent-care treatment at community based military recruitment centers, and call up reservists with medical backgrounds to treat Americans.

4.     Declare Spanish as an official language and order the Code of Federal Regulations to be published in a bilingual format (it would play to the Democratic base).

5.     Ban employers from hiring permanent replacements for strikers. President Clinton actually did this. The D.C. Circuit Court of Appeals ruled that he had no authority for this rule—but the Supreme Court never ruled on it, so go ahead with the idea.

6.     Declare a national emergency for women who lack access to abortions in states that essentially regulate this reproductive right out of existence— then withhold federal grants for states and communities that block Roe v. Wade.

7.     Declare a national emergency for infrastructure and impose an additional 25-cents per gallon “interstate rebuilding fee.”

8.     Declare intolerance as a national emergency—then order all schools— including parochial schools that receive funds— to teach a federal-government generated curriculum on multicultural diversity or lose this money.

9.     Order all federal contractors to build unisex bathrooms to accommodate transgender people—or be barred from working for the federal government.

10.Declare a national emergency over lies in political discourse: Use executive branch authority to fine stations or withdraw FCC licenses from talk radio stations that promote lies and falsify facts.

Feel free to share your really bad “national emergency” ideas for the next Democratic president, assuming that President Trump’s authority to build a wall is upheld.  

Why Do I Hope President Trump Declares a National Emergency to Build a Wall?

Because he will likely lose before the U.S. Supreme Court—and along the way, he might be embarrassed.

Why will he probably lose? 
The lead case on executive orders is Youngstown Sheet & Tube Co. v. Sawyer (1953). In the midst of a “hot war” (real fighting involving U.S. troops in Korea), President Truman ordered a seizure of steel plants in order keep munitions flowing to the military. Unions were ramping up a crippling strike in the steel industry when Truman sought to keep the plants open. Believe it or not, seizures were very common in WW II—and no doubt, Truman was hoping the Supreme Court would equate the Korean War with WW II and uphold his authority. The Court said no to Truman— you have exceeded your constitutional limits. Only if the current Supreme Court equates the situation on the U.S.-Mexico border to WWII, there is no chance Trump will win.

But there is more.
Watch for President Trump to put on his Commander in Chief hat in making the order-- then read what the Supreme Court said in the Truman case:

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.

Who would sue? Two likely candidates are the U.S. House of Representatives, and a citizen taxpayer. Each would have different claims. The House would argue that the President has violated the doctrine of separation of powers and undermined the will of the people as reflected in the Continuing Resolution passed two days ago in that chamber. Unless a majority of justices suspends our constitutional system, it’s hard to see how Trump wins that one.

Then there is Fill-in-the-Blank citizen. She will make the argument that tax dollars are being diverted for an unconstitutional purpose via an unconstitutional process. Again, I rate the odds of a successful challenge as close to 100%.

Along the way, President Trump would encounter heavy head winds.

First, in a lawsuit a plaintiff would demand discovery of documents, emails, and such. The lawsuit would open the White House to intrusive information demands. Relatedly, the President would be deposed. This happened to President Clinton when Paula Jones sued him a civil matter, alleging sexual misconduct. And the President would be under oath. Given his propensity to lie, this would be a perjury trap entirely of his own making.

The executive branch has accumulated vast powers since 9/11. That was a true and extraordinary national emergency. But within a few years, that authority was used for a wide range of other purposes—intervening in Iraq (Bush II), and massively regulating banks (Obama), to name two contrasting examples. It is time for our presidency to be a coordinate actor in government. After all, we revolted against Britain because King George III abused his powers. Bring it on.
Caveat: Yes, I could be wrong. If that happens, our constitutional system of checks and balances will be seriously eroded. In addition, our Supreme Court will risk losing its legitimacy as a neutral body of government (though people on the left and right believe with some justification that this has already happened).