No Fooling: April 1st Is Big Day for Tech Employers

Technologies for your cell phone, favorite and despised apps, car technology, household appliances— the list goes on— were partly developed by H-1B visa workers. Most come from India on a three-year visa. They are usually eligible for a three-year extension. Often, they apply for a green card. Many become U.S. citizens—usually after being in America for 10 or more years.

The H-1B visa window has opened on April 1^st every year since a 1990 law was passed. Within days, the quota for 65,000 is filled (and 20,000 “OPT” visa for foreign-born students who graduate from U.S. universities.

President Trump issued a “Hire American” executive order in April 2017. My forthcoming research article (“Is the “Hire American” Executive Order a Suspect Classification?”) marshals evidence to show that the order is racially discriminatory. 

Two bottom lines: Tech employers are having a harder time hiring H-1B visa workers and are moving this work to Canada. Second, Indian workers are targeted for deportation.

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For a bit more, here is a summary of my article:

Is the “Hire American” Executive Order a Suspect Classification?

Michael H. LeRoy

FORTHCOMING IN WILLIAM & MARY BILL OF RIGHTS JOURNAL (FALL 2019)

Summary

President Trump’s Executive Order 13,788 declares a “Hire American” policy for H-1B visas. This action discriminates against Indians to benefit white American workers. The technology workforce in the U.S. has 4.6 million jobs. Most employees in this large workforce— about 88.4%— are U.S.-born. In this domestic segment, 85% of employees are white. Among foreign-born workers (11.6% of all workers), Asians make up 66%, with Indians predominating.

“Hire American” renews a mostly forgotten history of discrimination against Indian workers. The Immigration Act of 1917 enacted an “Asiatic Barred Zone.” Indian immigration was curtailed to 100 annual arrivals. Typical of the period, the California State Board of Control stigmatized this group: “Hindu is the most undesirable immigrant in the state…. His lack of personal cleanliness, his low morals, and his blind adherence to theories and teachings, so entirely repugnant to American principles, make him unfit for association with American people.” The Supreme Court in Bhagat Singh Thind denied a citizenship petition, crudely theorizing: “It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them today.”

The USCIS (U.S. Citizenship and Immigration Services), an agency charged with implementing the “Hire American” order, is already discriminating against Indian H-1B visa holders. In the first quarter of 2017, the agency issued Requests for Evidence (RFEs) for 18% of petitions for Indian workers, far below the 25% rate for all other petitions. The “Hire American Order” was issued in the second quarter, and by the fourth quarter USCIS issued RFEs for 24% of petitions for Indian workers, while all others fell to 19.6%. As a result, more Indians are being denied visa extensions and are deportable. I apply precedents from other facially neutral restrictions aimed at lawfully admitted aliens in Takahashi v. Fish and Game Commission and in Dandamudi v. Tisch to show that the “Hire American” order is a suspect classification. Using evidence in this study, courts should apply heightened scrutiny to review Executive Order 13,788 and its regulations.

“Centipede in the Spoon” Case (1936): Lessons for Today

In Koplin v. Liggett, a grossed-out diner at a restaurant claimed she was “made sick by the presence of a centipede in the spoon with which she was eating vegetable soup served to her at lunch in defendant’s restaurant. On this account she brought suit to recover damages from defendant. In pursuance of binding instructions from the trial judge, the jury found a verdict” in favor of the restaurant.

Ms. Koplin appealed to the Supreme Court of Pennsylvania.

She explained to the Court:

“‘When I was taking a table spoon to my mouth I noticed a centipede in the spoon.’ She went on to say: ‘It was a sort of worm or centipede. That is what I thought it was.’ She added that she ‘didn’t touch it’ and did not put it in her mouth. She admitted that the soup, most of which she had eaten, had no bad taste. She claims that she was nauseated by seeing the object in the spoon and continued in this state for two or three weeks, although she was never actively sick in the sense that she vomited. During this period she was treated by her family physician five times. He testified that he gave her only simple remedies and that her disturbed state was more mental than physical. She claims to have lost nine or ten pounds in weight. Upon leaving the restaurant, she returned to the bank where she was employed and continued to work daily thereafter, losing no time whatever.”

The Court put aside the fact that there was no adequate proof that the centipede, or whatever it was, was in the soup when served to plaintiff.

Instead, the Court focused on the law— specifically, when is there a legal remedy when Person A unintentionally causes Person B to have extreme fright or anxiety.

“We are of opinion that a principle long established by us stands in the way of any recovery. ‘There can be no recovery for injuries resulting from fright, or a nervous shock, unaccompanied by physical injuries.’ In Ewing v. Pitt., Cinn. & St.L Ry. Co., we said: ‘It is plain from the plaintiff's statement of her case that her only injury proceeded from fright, alarm, fear, and nervous excitement and distress. There was no allegation that she had received any bodily injury. If mere fright, unaccompanied with bodily injury, is a cause of action, the scope of what are known as ‘accident cases’ will be very greatly enlarged; for in every case of a collision on a railroad the passengers, although they may have sustained no bodily harm, will have a cause of action against the company for the ‘fright’ to which they have been subjected.”

In many circumstances, and many states, this legal idea is largely true today. In one of our upcoming worker’s compensation cases, a factory worker is splattered with the blood of a co-worker who was lacerated on the job. She thought her co-worker was HIV-positive, and therefore, she fell into a deeply depressed state with extreme social anxiety. Her mental incapacities were real, even according to company doctors. But the Tennessee Supreme Court said that mental illness caused by fright, without an actual physical cause, is not compensable.   

Jew Bill of 1753 (Repealed Due to Outrage, 1754): Lessons for Today

America’s tug-of-war between anti- and pro-immigration forces has similarities to England in the 1700s.

Religious tolerance was a force that led to more open immigration laws (first, for non-Anglican Protestants from France and Germany, and later Jews)—but each time a law of this type passed, anti-immigration forces quickly mobilized and built a wall around England.

Consider the Jewish Naturalization Act of 1753, also called the “Jew Bill” (an Act of Parliament (26 Geo. 2, c. 26)). It lasted only one year, repealed in 1754 (27 Geo 2, c. 1) due to widespread opposition to its provisions.

The background: The Catholic-branch of the English monarchy was exiled to Scotland. In 1745, they mounted a rebellion.

Jews were loyal to the government in London. Sampson Gideon, a leading financier, had strengthened the stock market. Jews volunteered in the corps raised to defend London.

But Jews were not citizens.

The Jew Bill of 1753 allowed Jews to become naturalized by application to Parliament.

The House of Lords easily passed the bill.

In the House of Commons, conservative Tories protested that by opening citizenship to Jews, this was an “abandonment of Christianity.”

The bill was passed and received royal assent (26 Geo. II., cap. 26).

The public boiled over with antisemitism, leading to repeal of the law in 1754.

Jews from Spain and the Mediterranean congregated in London’s district for international commerce.

Jews from Germany and Poland settled in seaports, where they were pawnbrokers and small dealers of goods.

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Today, some GOP leaders have embraced the antisemitic trope that Jews are subversive, globalist financiers. See House Minority Leader McCarthy's tweet, shortly before the 2018 election (above).

The Seduction of Workers: Our American Ancestors

We idealize the early immigration experience. In fact, many workers were “seduced.” That is an actual legal term that approximately means “fraudulently induced.”

Sex was an allure for some, especially young maidens. Consider this excerpt from John Wareing’s research article, “Violently taken away or cheatingly duckoyed”:

“Meriton Latroon … was faced with a servant girl whom he had ‘cruelly trapanned' to Virginia, and who had returned to London. She reminded and accused him of ‘the flatteries you used to delude a poor credulous maiden whom you not only shamed but ruined. You cannot forget your matchless treachery in seducing me aboard a Virginia ship in whom I was carried thither and sold, you hoping by that villainy to have been for ever rid of me and mine.’”

Today, we call this sex trafficking (with similar false inducements transformed into sexual labor).

Sometimes, husbands sold their wives into servitude.

“A broadsheet of 1675 describes how an unfaithful husband had tried to sell his wife to ‘some forraign plantation’ so that he could be alone in London with his mistress, but the captain took pity on her and turned the tables on the husband who was himself sent ‘very fairly bound’ to ‘Chuck a Tuck in James River in Virginy’.

Sometimes husbands abandoned their wives:

“The ballad of a weaver who had an unfaithful and complaining wife…. told her that he was going to Virginia, but her joy at his departure and the prospect of making merry with her lover in his absence was short-lived when she found that upon boarding the ship to see him off, she herself was to be taken because the wronged husband had sold her to the captain for £10.”

Sorry for the sudden twist there!

However, mostly “seduction” referred to mundane matters, such as recruiting workers—from laborers through skilled tradesmen—to seek riches in America. 

England was so concerned about the loss of labor to America that King George III (the guy we rebelled against) enacted 13 Geo. III XXI. A.D. 1773.  The law applied anytime a person would “entice, persuade, or endeavor to persuade, solicit, or seduce any Manufacturer, Workman, or Artificer of or in the Wool, Mohair, Cotton, or Silk” or related manufacturing industries, or in “Iron, Steel, Brass or any other Metal, or Clock-maker, watch-maker, or other Manufacturer, Workman, or Artificer of or in any other manufactures of Great Britain or Ireland.”

In other words, the law applied criminal penalties to HR recruiters (i.e., “Talent Search Professionals”) who exported labor to America.

“Drapery in Exile”: Lessons from King Edward III (1331) for President Trump (2019)

Who should care about the drapery industry in Medieval England? Maybe us.

England lacked skilled labor, specifically, weavers. Across the English Channel, Flemish weavers had thriving international businesses. King Edward III offered weavers “letters of protection” allowing them to move to Colchester to set up their businesses as English enterprises. The king hoped that his native laborers would learn state-of-the-art skills and compete on the world stage.

In Bart Lambert & Milan Pajic, Drapery in Exile: Edward III, Colchester and the Flemings, 1351–1367, 99 Hist. 338 (Dec. 2014), the authors explain:

“Throughout the fourteenth century, Edward III issued several letters of protection encouraging Flemish textile workers to establish their trade in England. This article argues that, between 1351 and 1367, over 100 immigrants from the Low Countries settled in Colchester, twenty‐seven of whom were Flemish textile manufacturers exiled from Flanders and welcomed by Edward III in 1351. Attracted by excellent natural conditions for clothmaking, a shortage of manpower following the Black Death and an open economic environment, they made a vital contribution to the town’s development as an internationally renowned centre of textile production that was able to withstand the pattern of urban decay so prevalent in other parts of late medieval England.”

Today, the U.S. “imports” 65,000 technology workers from abroad to make up for a deficit of skilled labor. The H-1B visa is the mechanism to make this happen. President Trump has issued an executive order called “Hire American.” It places new restrictions on this visa. Just as European weavers helped support and grow the weaving industry, H-1B visa workers, on the whole, add to the growth of the U.S. technology sector.

Were There DACA “Dreamers” in 1708? Yes.

Protestants were persecuted in France and Germany for breaking with the Catholic Church. Some sought refuge in England, an Anglican kingdom.

Then a labor shortage hit England. Parliament, at the urging of Queen Anne, enacted the Foreign Protestants Naturalization Act 1708. The law opened with this remarkably relevant policy statement: “the increase of people is a means of advancing the wealth and strength of a nation.”

          The preamble stated:

Whereas the increase of people is a means of advancing the wealth and strength of a nation; and whereas many strangers of the Protestant or reformed religion … would be induced to transport themselves and their estates into this kingdom if they might be partakers of the advantages and privileges which the natural born do enjoy, be it enacted:

The law granted these immigrants natural-born citizenship, upon taking an oath (and receiving a sacrament). We call this idea “naturalization” (without the religious requirement).

And here is where the DACA comparison comes in. The children of these immigrants— children who were born in France or Germany, but who resettled with their parents in England—were automatically granted citizenship:

the children of all natural-born subjects out of the ligeance her Majesty, her heirs or successors, shall be deemed, adjudged, and taken to be natural-born subjects of this kingdom….”

That is a precedent for DACA, even though this connection has not been made.

DACA opponents will be unimpressed by this history. Not I. People who fled persecution in France and Germany because they could not freely practice their religion are similar to parents who have left Central America due to extreme violence. Separated by 300 years, all these people have had a common dream: Freedom to live their lives without persecution.

England decided in 1708 to enact a law to legalize its “DACA” immigrants.

We have no Queen Ann, nor a willing Parliament. Who says that history is a story or progress? We fail in comparison to England, circa 1708.

Source: Reports from the Commissioners Vol. XXV (1868-9), at 107, available https://books.google.com/books?id=WChcAAAAQAAJ&pg=RA1-PA107&dq=the+children+of+all+natural+born+subjects+born+out+of+the+ligeance+of+her+Majesty+her+heires&hl=en&sa=X&ved=0ahUKEwi8lpSV25bhAhWHyIMKHau1BtMQ6AEILDAA#v=onepage&q=the%20children%20of%20all%20natural%20born%20subjects%20born%20out%20of%20the%20ligeance%20of%20her%20Majesty%20her%20heires&f=false

Can John McCain’s Estate Win a Defamation Lawsuit Against President Trump?

No. Here is the explanation.

Defamation is a common law claim, meaning that judges over many cases created grounds for recovering damages to one’s reputation.

Family of the deceased have tried to recover damages when their dearly departed have been defamed.

But there must be proof of harm to a person’s reputation—and courts have consistently ruled that once people die, so do their reputations.

Courts have noted that false and damaging statements can injure the memory of a deceased person, but the tort of defamation doesn’t apply to one's memory.

Can survivors make a valid claim in circumstances like the McCain family?

Generally, no. The main exception is when defamation reflects on their own reputations.

Now consider the barrage of hate that President Trump has mobilized against Cindy McCain. She posted a vile attack from Tiffany Nicole’s Twitter account, calling the deceased senator a “traitorous piece of warmongering shit,” adding that she was “glad he’s dead.” There are worse messages, too vile to publish on this blog.

Keep that up, McCain-haters, and perhaps Cindy McCain will have a tort claim for intentional infliction of emotional distress—much more likely against Tiffany Nicole, and much less likely against Donald Trump.

Jeanine Pirro Lashes Out: Plan to Punish Confederate Leaders Unfair (A Parody)

Jeanine Pirro lashed out today at the post-Civil War Congress for enacting a law that prevented political leaders of the Confederacy from holding any federal or state political office. The law allowed individuals to be granted political amnesty by two-thirds vote of both houses.

“This is yet another attempt by the Radical Left to muzzle leaders who speak for the people!”

Liberals were divided by the proposal, some believing that the South deserved to be punished for rebellion, and other stating that this measure was vindictive and would be counter-productive.

In the Reconstruction Committee, Rep. Raymond said that the South was already being forced to make concessions— adopt a massive civil rights bill, a law that stuck them with their war debts, and more.

Addressing one point of the law, Pirro lambasted the Reconstruction Congress: “And they have a law to deny masters compensation for slave who were freed. How is that fair?”

Concerned that the North was pushing to far, Rep. Raymond said that we offer the South “the right to be represented on this floor, provided that they will also consent not to vote for the men who are to represent them!”

The measure passed. Rep. Sumner spoke for the majority when he justified the measure: “The choice of citizens for office, whether state or national, of constant and undoubted loyalty, whose conduct and conversation shall give an assurance of peace.”

***

The Jeanine Pirro element is a parody grafted on to actual debates and an actual law passed by Congress during the most our nation’s most divisive period. Free speech and representation of the people are essential to our democracy—but certain speech and political themes have potential to alter our core national character.

President Trump, Hate, and Biker Violence

Yesterday, in an interview in Breitbart, President Trump lowered himself to the gutter:

So here’s the thing—it’s so terrible what’s happening,” Trump said when asked by Breitbart News Washington Political Editor Matthew Boyle about how the left is fighting hard. “You know, the left plays a tougher game, it’s very funny. I actually think that the people on the right are tougher, but they don’t play it tougher. Okay? I can tell you I have the support of the police, the support of the military, the support of the Bikers for Trump – I have the tough people, but they don’t play it tough — until they go to a certain point, and then it would be very bad, very bad."  

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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.”

Jeff Conroy-- a teenager from Long Island-- was convicted in the murder of this migrant, day-laborer.

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.

Fox & Friends Exclusive! President Andrew Johnson’s Veto of 1866 Civil Rights Law

FNF: We’re back after interviewing President Trump, who is quite frustrated with Congress after rebuking his national emergency declaration. You heard him first, explaining this morning’s tweet: “F*CK PELOSI! F*CK SCHUMER! FINISH THE WALL!” [ProfLERoy has made up this tweet.]

You have to like the alliteration there. Such a smart man.

We bring in our next guest, President Andrew Johnson. 

On March 27, 1866, President Johnson vetoed the 1866 Civil Rights Act, a law that contained a hodgepodge of extreme and far-left ideas such as equal rights for all, and birthright citizenship. President Johnson, welcome to Fox & Friends!

President Johnson, why did you veto this law?

PRESIDENT JOHNSON: By the first section of the bill all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people, of color, negroes, mulattoes, and persons of African blood. Every individual of these races, born in the United States, is by the bill made a citizen of the United States.

F&F: Say no more. We get it.

PRESIDENT JOHNSON: It does not purport to declare or confer any other right of citizenship than federal citizenship. It does not purport to give these classes of persons any status as citizens of States, except that which may result from their status as citizens of the United States. The power to confer the right of State citizenship is just as exclusively with the several States as the power to confer the right of federal citizenship is with Congress.

F&F: We get that, too, Mr. President. The federal government really has no powers other than to make war and protect borders. It’s states that retain all rights and powers—they are closer to the people.

The liberal Congress that passed the law refused to seat any senators or representatives from the 11 states that formally rebelled. After the war ended, shouldn’t things have been “forgive and forget?”

PRESIDENT JOHNSON: The grave question presents itself whether, where eleven of the thirty-six States are unrepresented in Congress at the time, it is sound policy to make our entire colored population, and all other excepted classes, citizens of the United States. Four millions of them have just emerged from slavery into freedom.

Can it be reasonably supposed that they possess the requisite qualifications to entitle them to all the privileges and immunities of citizenship of the United States? Have the people of the several States expressed such a conviction?

F&F: Here at Fox, we agree: People who rebelled should also have a vote on whether to free slaves. It just makes so much sense. 

We need to wrap things up to cover a story about a professor who runs mocking blog posts of Fox broadcasts. He insinuates some kind of weird connection between Fox and politicians like you. So we want to ask: What do you think of black people?

PRESIDENT JOHNSON: The bill in effect proposes a discrimination … in favor of the negro, to whom, after long years of bondage, the avenues to freedom and intelligence have just now been suddenly opened. He must of necessity, from his previous unfortunate condition of servitude, be less informed as to the nature and character of our institutions than he who, coming from abroad, has to some extent, at least, familiarized himself with the principles of a Government to which he voluntarily entrusts life, liberty, and the pursuit of happiness.
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Congress overrode President Johnson's veto, ensuring that all people have a right to due process and equal protection of the law. President Trump's declaration of a national emergency to fund the wall is a much less significant issue, but it tracks some of the racially biased arguments made by President Johnson. As of March 14, 2019, it appears that Congress will not have the votes to override President Trump's expected veto.

Why Research Matters: “This deep-seated prejudice against color is assiduously cultivated by the public journals (1866).”

This book, published by a Johns Hopkins professor in 1908, is important. 
If you are concerned by dog whistles on Fox News, Rep. Steve King and his ilk, Charlottesville, and President Trump’s equivalence of some American Nazis as “very fine people” along with civil rights protesters, this book is a lost treasure. 

Prof. Flack details, minutely, how racist politicians and judges, over the 50 years that transpired from 1868 (when the 14^th Amendment was ratified—an amendment that ensures equal treatment under the law to all persons) to 1908, stole that legal promise from people of color.

Prof. Flack’s research points to an obscure but important Report of the House of Representatives. 

You can read it online here, https://babel.hathitrust.org/cgi/pt?id=nyp.33433081821161;view=1up;seq=1 (the pages load a bit slowly so give it a few seconds, and scroll down, past the first few pages [they are blank]).

If you thumb through the first few pages, you will be disheartened to see how much of American society today resembles the South immediately after the Civil War.

Here is how liberals in the House—then called Radical Republicans—reported on rural Southerners and the newspapers they read: 

“The feeling in many places of the country towards emancipated slaves, especially among the uneducated and ignorant, is one of vindictive and malicious hatred. This deep-seated prejudice against color is assiduously cultivated by the public journals, and leaders to acts of cruelty, oppression, and murder, which the local authorities are at no pains to prevent or punish.”

This Report was published in 1866. Compare for yourself its similarity to our current climate.

The Report was produced by the House Committee on Reconstruction. The Reconstruction vision is at stake today, in my view.

Thank you, Prof. Flack—and rest in peace.

Why Are HR Management and Law in Separate Silos?

Yesterday, I heard the best presentation on HR management in many years (given by the former Chief Human Resource Officer, and my dear friend, Jill Smart). She spoke of HR metrics, aligning work with P&L analysis of employee costs and outputs, intelligent staffing, and making HR and finance equal business partners.

It was brilliant—and it’s been battle tested. By why no mention of law as a strategic driver of HR decision making? In a word, it’s because lawyers and HR leaders work in silos. The main implication is that law is viewed as a compliance function.

In my opinion, that’s like coaching a football team by demonstrating the way that penalties are assessed. I’m sure teams discuss rules and refereeing—but not much. But I'm also sure rules play into the type of players team draft. If you have stronger penalties against roughing the passer, you might feel better about drafting a QB who runs for yardage and spreads a defense.

Is HR missing more “value-add” by not thinking strategically about the law? Yes.

For one, I would ask: What is the regulatory cost of each employee? Apart from wages, employees in California are more expensive than employees in Arizona. Start adding up employment taxes, worker’s comp costs, etc. Employers have a good sense of this. Now, add into it an employer’s flexibility—Arizona, lots, California, much less.

With the advent of artificial intelligence, the idea of a “basic income” is almost certain to gain traction. Essentially, this idea means a baseline of welfare for all. You can call it socialism, or anything else. 
But businesses will likely pay for it—or be forced to move offshore. What’s the point at which it’s smarter for an employer to hire someone than to pay into a welfare program? 
Obama-type healthcare will precede this development (see expansion of Medicaid, even in "red" states).

Is there a work model that fuses independent contracting and employment? The costs of employment are growing relentlessly, which is why wages creep up so slowly. 
Is there a way for employers to share independent contractors in a jointly regulated labor pool? 
This would save employment costs, but it raises many tough issues. Trucking companies do it. Nurses sometimes work in a shared labor pool.

An innovation in this area is a few firms pay not only a set amount to a contract worker, but an increment into a 401(k) (called Self Employment Plan), and a worker’s Health Savings Account. 

This creates some degree of loyalty and incentive to continue the relationship. For the firm, if this model works, it can have a true just-in-time, project-focused workforce.

For now, labor and employment lawyers fight rear-guard battles, picking up after employers who discriminate, underpay, create conditions for union organizing, breach employment contracts, and the like (see photo). There are missed opportunities here.

Lessons from Sister Mary Jerome Lauer’s Master’s Thesis: The Civil Rights Act of 1866

I’ll never meet Sister Mary Jerome Laurer. But I feel I know her after reading her Master’s thesis, deposited for the faculty at Marquette University in April 1943.

She does a terrific job of explaining the conditions that gave rise to the Ku Klux Klan in 1866.

***

When Andrew Johnson succeeded to the presidential office, Confederate armies, somewhat broken but still capable or offering resistance, were retarding Sherman's victorious march. Measures for disbanding the former became necessary when southern leaders, recognizing the hopelessness or continuing resistance, made overtures looking to an armistice which took place, and to the surrender which subsequently followed. It became urgent to discontinue the enlistment or men in the loyal states, to economize expenses, and to muster out or service as expeditiously as possible the grand army or Union volunteers.

The skill to which years or experience had brought the machinery or the War Department enabled the majority or the Union army to return without delay to their homes, where they would discard the character or soldiers and melt insensibly into the civil population to resume the pursuits or peace….

The political theories of the South had been put to the test of the sword and were now discredited. Two problems were settled beyond dispute: the Negro was free; and the Union was preserved. Thus the Republican Party, preeminently the Union Party, found itself in full control of every branch of the federal government, and its rule must be established and perpetuated.

To the mind of the North, the Democratic party could not be entrusted with any part of the solution of the problems of reconstruction. Though slavery and state sovereignty were no longer at issue, there were many problems pressing for solution. The territory formerly occupied by the seceding states must be reorganized and under certain conditions, readmitted to the Union; provisions had to be made for ways and means for liquidating the vast war debt incurred on both sides, by both, governments and by the individual States.

Above all else loomed the Negro problem. Five million whites and three and a half millions blacks were to live together. What system of laws could southern conventions and legislatures frame that would make it possible for them to accomplish that which Thomas Jefferson had declared impossible? Two dangers confronted them.

One was, the armed bands of Negroes headed by returning Negro soldiers. The other chief danger was that idleness among the Negroes would lead to crime. The South was in a state of utter exhaustion. They protracted their struggle against the federal authority until all hope of successful resistance had ceased, and they laid down their arms because there was no longer any power to use them.

The loss of life in the Confederate army had been large, while many suffered from wounds, and from diseases, and  from hardships of camp and prison. These men, many of them unable to work, came home to find almost complete economic ruin. The people were impoverished. Nearly all business was destroyed and the farms were wrecked. There was no money in circulation, the banks were generally broken; there was no credit system, most of the commercial agencies were inoperative or suspended. Private debts incurred in a period of great prosperity prior to 1861, and unpaid at the beginning of the war -were still unpaid, and the property on which most of these debts were contracted, no longer existed. The railroads and other means of transportation, as well as factories and other industries were generally destroyed. Agriculture, the main means of support in the South, was demoralized by the need of work animals and because of the disorganized labor.

Tucker Carlson’s Interview of Chief Justice Taney: Why Dred Scott (Declaring Blacks as Inferior) Was a Great Decision!

Welcome to our program tonight—unfiltered by the leftist mob that is trying to silence common sense and patriotism. Tonight, we welcome Chief Justice Roger Taney to the program. He wrote one of the Supreme Court’s most misunderstood decisions in 1857. A slave sued for his freedom in the great state of Missourah, seeking a ruling that would declare him a free man. Mr. Taney recognized that the United States government cannot take away property from white men.

Chief Justice Taney, welcome to the show. 

Much of your wisdom has been lost over the past 160 years but the time is right to reconsider your views.

What was your reasoning that Dred Scott could never be a U.S. citizen because he was black?

“In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.”

Wow! So, you believe in an “originalist” way to read the Constitution?

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

I gotta tell you, Chief Justice Taney, Democrats, Jews, women, illegals, negroes, and homosexuals would foam at the mouth like rabid animals to hear you say such an obvious fact. Maybe President Trump’s Supreme Court can restore some common sense.

We need to wrap things up to go to commercials from our besieged sponsors. Leave us with a concluding thought about the negro race.

“They were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”

(ProfLERoy expressly rejects every idea in this interview, which is published as a parody.)

Trump Labor Department Issues New (Good) Wage Rule

Background: If an employer classifies an employee as an “executive,” “administrative,” or “professional” they are not owed overtime pay for work in excess of 40 hours. 

Many companies abuse these categories. 

For example: Fast food companies classify store- and even shift- managers as “executive” or “administrative” workers. These people work 40-80 hours a week without any overtime. Nurses are another category that employers frequently misclassify.

Apart from a job duties test, federal law provides a “wage test.” 
The idea is that no one would pay an executive, administrative or professional employee below a certain amount.

For more than a decade, the wage test languished at about $23,000 per year. So, many employers put a fancy label on workers and paid a “salary” of $23,001—voila, no overtime.

The Obama administration was wise to this game. They raised the “wage test” floor from about $23,000 to $47,000. Pause: That meant if a company paid a secretary, or nurse, of shift supervisor, or fill-in-the-blank occupation under $47,000 per year and worked that person more than 40 hours a week, the company owed overtime.

In my opinion, that jump was drastic—and regardless of my view, it caused a real backlash.

I thought the Department of Labor would revise the rule down to the Bush-era level.

I was wrong. The new wage test level is $35,308 per year.

To boil this down in simple terms: If an employer is paying more than $17.65 per hour, there is a legal presumption that if the employee does executive, administrative, or professional work, they are not owed overtime.

As far as rules go, that seems to be in the ballpark of reasonable.

Make Rome Great Again! NPR Interviews Emperor on Birthright Citizenship

Today, on All Things Considered, we go back to 212 AD to interview Caracalla. Welcome to the program, Emperor.

ATC: Emperor, you are known for the Antonine Constitution—also called the Edict of Caracalla, which granted Roman citizenship to nearly all free men throughout the Roman Empire. What were conditions before your Edict? (Pause for Latin translation.)

Emperor: Before 212, only inhabitants of Italy held full Roman citizenship. Full citizenship in Rome was extended, also, to the formal Colonies of Romans. But our Empire had many “Provincials.” They and their children were non-citizens.

(Roman Empire during reign of Caracalla)

ATC: So, what changed with your Edict of 212?

Emperor: I declared that all free men in the vast Roman Empire were to be given Roman citizenship and that all free women in the Empire were to be given the same rights as Roman women.

ATC: That kind of equality is remarkable. Were there any disadvantages for these new citizens?

Emperor: Yes. All Roman citizens paid two taxes from which noncitizens were exempt— inheritance taxes, paid by beneficiaries, and also a tax levied when a slave was emancipated. We had many slaves, but we provided for manumission.

ATC: Why would anyone free a slave?

Emperor: My reign was marked by a strong economy and inflation. Slaves became more and more valuable. So, more masters freed their slaves, most of whom continued to work for them. Many slaves were able to buy their own freedom. We increased our tax base by doing this.

ATC: What impact did this have?

Emperor: At the death of Augustus in 14 AD, only 4–7% of all peoples in the Roman Empire were Roman citizens. As our Empire stretched around parts of three continents we needed more money and more conscripts to fight our wars. So, we had practical considerations in extending citizenship.

ATC: Was it just about taxes and soldiers?

Emperor: No. Some people say that I rose to power by murdering my brother. That is a witch hunt, a real hoax. But to deflect bad publicity, I thought this would really shake things up.

Also, the provincials benefited from my Edict. They considered themselves as equal partners to the Romans in the empire. You might say I expanded my base by Making Rome Great Again! 

Concluding context: President Trump has suggested that he will issue an executive order that nullifies birthright citizenship-- a term that means that anyone born in the U.S. is a citizen. Congress granted birthright citizenship to "all persons born" in the U.S. 

Opponents of birthright citizenship say that the U.S. is a rare country in being so permissive. I agree. It's because America has consciously built an empire-- now called a world power. American exceptionalism is built on the idea that Americans are not a race or an enclosed nationality group. 

If you think that empire building is far-fetched for America, consider the senators who supported birthright citizenship in 1866. They intended to make freed slaves citizens so that they could work on equal terms with free whites. And those senators also talked openly about Chinese immigrants and the industry of these people. The Chinese performed back-breaking work to complete the transcontinental railroad-- and did work that white Americans refused. Sen. Trumbull said that the "child of an Asiatic" is no different than any other child.

The labor that built that railroad laid the foundation for a transcontinental global superpower-- in other words, a 20th century empire. 

How the NRA Is Bringing Guns on Your Employer’s Property: The Parking Lot Gun Bill

(File Photo-- Not Current)

Are gun rights so paramount that a law can prohibit an employer from banning weapons on its property?

Yes, according to GOP lawmakers and gun rights groups. 

They are promoting a sneaky law titled the Business Liability Protection Act. 

Yawn. 

A better title, according to the National Law Review, is “the Parking Lot Gun Bill.” This law went into effect in June 2018 in West Virginia—and it’s proposed in other red states.

The law says that employers may not prohibit any employee from possessing a legally-owned firearm under the following conditions: (1) the firearm is lawfully possessed; (2) the firearm is out of view; (3) the firearm is locked inside or locked to a motor vehicle in a parking lot; and (4) the employee is lawfully allowed in the parking lot or parking area.

Sure, it has a veneer of a reasonableness.

But whatever happened to a person’s right to control his or her private property?

And if employers are restricted from banning guns on their property, what’s next? (The NRA always has a next step.) Guns in school parking lots? Or, back to private property, prohibiting employers from banning guns in a workplace building?

…

Blue states are fighting back. The NRA instituted an insurance program called Carry Guard. This offers gun owners liability protection if their weapon causes unlawful harm and results in a lawsuit.

But there’s a rub: States have exclusive authority to regulate insurance companies. 

New York suspended Carry Guard on grounds that it created liability protection for illegal conduct—for example, a mass shooting.

New York also fined Carry Guard—an arm of the NRA— $7 million.

Washington state has taken similar action against Carry Guard.

…

I hope a West Virginia employer will sue to challenge the Parking Lot Gun law. The lawsuit would be straightforward. Under the 14^th Amendment, all persons (and corporations are persons) have a right to life, liberty, and property, and the state cannot deprive anyone (including employers) of these rights without due process. Forcing a person to accept guns anywhere on his or property is clear-cut taking of one’s property rights without due process of law. In short, the law should be ruled unconstitutional.