Can You Be Required to Pay for an MRI to Get a Job?

No, according to a recent federal court. BNSF Railway required Russell Holt to pay for an MRI on his back. Holt had been offered a job but suffered two ruptured discs in his back five years before. He rehabilitated successfully.

Under the Americans with Disabilities Act (ADA), employers may lawfully require people who are offered a job to take a pre-placement medical exam. They can withdraw or modify the offer for “business necessity.”

Holt’s physician told BNSF that Holt had no recurring back issues for five years. Not good enough, said BNSF. He needs to pass an MRI. Holt was told he’d have to pay for it. He was in bankruptcy and could not afford it.

Also, Holt’s physician would not approve the MRI— there was no medical necessity for the test.

BNSF rescinded its offer.

In a recent court ruling, the Ninth Circuit Courts of Appeals ruled that BNSF violated the ADA by requiring Holt and others in his position to pay for their MRIs. The court said:

Where, however, an employer requests an MRI at the applicant’s cost only from persons with a perceived or actual impairment or disability, the employer is imposing an additional financial burden on a person with a disability because of that person’s disability. In the case of an expensive test like an MRI, making an applicant bear the cost will effectively preclude many applicants, which is at odds with the ADA’s aim to increase opportunities for persons with disabilities.

In short, requiring an applicant to pay for follow-up testing is distinct from merely requiring an additional exam for a person with a disability if an additional exam is necessary to complete the medical examination contemplated in § 12112(d)(3). But it is not at all necessary that a person with an impairment pay for an exam for a thorough exam to be completed. To construe the statute otherwise would be to constrain and limit the general protections of the ADA beyond the necessary implications of the medical testing provision.

Further, elsewhere the ADA puts the financial burden on employers. The ADA requires employers to pay for reasonable accommodations unless it is an undue hardship—it does not require employees to procure reasonable accommodations at their own expense. 42 U.S.C. § 12112(a), (b)(5)(A); see also 29 C.F.R. § 1630.2(o)(4).10 

The Irony of America’s First Thanksgiving

The first Thanksgiving occurred in November, 1621. Pilgrims of Plymouth gave thanks for divine blessings. They also thanked local Native Americans who generously helped the Pilgrims survive—and taught them to plant corn.

By the early 1700s, the natives were driven off their lands. Colonial laws were passed to keep out the poor and disabled.

America remains the world’s richest nation, but federal immigration policies have turned back 300 years. Prof. Gerald Neuman’s article, “Lost Century of American Immigration Law (1776-1875),” Columbia Law Review (1993), gives us pause to reflect:

The high incidence of "pauperism" among immigrants raised concern and hostility. Many Americans viewed their country as a place where the honest, industrious, and able-bodied poor could improve their economic standing, free from the overcrowding and rigid social structure that blocked advancement in Europe. Failure to become self-supporting was seen as evidence of personal defects. Many feared that European states were sending their lazy and intemperate subjects, as well as the mentally and physically disabled, to burden America.

…

The list of high-risk categories was modified over time. Compare id. § 2 ("lunatic, idiot, maimed, aged or infirm persons incompetent in the opinion of the officers so examining, to maintain themselves, or who have been paupers in any other country") with Act of Mar. 20, 1850, (“a pauper, lunatic, or idiot, or maimed, aged, infirm or destitute, or incompetent to take care of himself or herself without becoming a public charge as a pauper”) and Act of May 20, 1852, ch. 279, § 1, 1852 Mass. Acts & Resolves 195, 195 (“any lunatic, idiotic, deaf and dumb, blind, or maimed person”) and Mass. Gen. Stat. ch. 71, § 15 (1859) (“insane, idiotic, deaf and dumb, blind, deformed or maimed person, among said passengers, or alien who has before been a public charge within this state”).

…

The irony is that the Pilgrims would likely not have survived their first winter without the generosity of nearby Native Americans who shared their bounty, and their knowledge of farming and hunting. Thanksgiving is a pro-social holiday. But Americans— from the late 1600s through Executive Orders today that punish immigrants who are poor—failed to learn the Thanksgiving lesson from 1621.

Unplug Alexa? Plug for Athena

At a recent labor law conference, I squirmed in my seat as I listened to the keynote speaker, Ardine Williams. She’s Vice President, Workforce Development, HQ2 at Amazon. Wow, did I hear her right? She said it’s time to repeal the old wage and hour laws of the 1930s. They don’t fit our economy.

She was referring mostly to the federal minimum wage law. The same law prohibits child labor. It also requires overtime at time-and-a-half after 40 hours per week. That law was passed to incentivize employers to give workers a five day work week.

This argument was pressed in behalf of a man who is worth more than $100 billion.

***

Most of us know Alexa (for the lucky few who don’t, it is Amazon’s household spy, a small cone that overhears your conversations, and micro-targets ads to your social media platforms…. I also believe [sort of] she speaks to agents in Russia and China).

Who is Athena? It’s a grass roots social and political group that is confronting Amazon’s dominance in online retail, ... and fresh groceries, ... and devices that connect your home to the internet, ... and front-door and neighborhood surveillance, ... and professional services like plumbing and contracting, ... and health care, ... and government procurement, ... and internet infrastructure, and Hollywood entertainment, ... and, well, anything that can be managed with algorithms.

On the labor front Athena is backing proposals for $15 an hour as a minimum wage for all workers, including gig workers. An affiliated group— Economic Roundtable— reports that about half of Amazon warehouse workers in Southern California live in substandard housing. And for every $1 in wages, they receive 24 cents in public assistance. In other words, taxpayers are subsidizing Jeff Bezos’s payroll. (I now recall my unresolved angst in sitting through lunch while listening to Amazon’s HQ2 VP wax eloquent about doing better by workers by cutting their safety nets).

In other areas, Athena seeks local laws that give locally-owned companies competitive advantages over monoliths.

Personally, I want to unplug Alexa. My wife won’t go for it. She wins. But I’ll bet we agree on Athena. J

Pilgrims Portrait: Some Thanksgiving Surprises

  

For Thanksgiving, I’m sharing a summary of research by T.H. Breen and Stephen Foster (1973) on early Massachusetts immigration (cited below).

I’ll let them talk. I’ve simply added brief headings that reflect my summation.

Immigrants Came as Families, Not Individuals: Turning to the lists themselves, even a casual examination calls into question the classic picture of migration to the New World: a predominantly male movement of young, single unattached persons, that is, individuals free both of strong ties to their homes and of constitutional infirmities that would preclude a difficult journey. On the contrary, most of the 1637 emigrants were grouped into relatively small nuclear families consisting of two parents, a few children, and sometimes one or more servants. Men and women were about equal in number, and only a handful of the families included grandparents or in-laws.

Immigrants Were Older: Migration is often assumed to be an affair of the young, but the Yarmouth examiners left enough material about age to establish that this was not a particularly youthful group of colonists. Although among the servants, as might be expected, almost all of the men were between the ages of eighteen and twenty-two, with heads of households the case was quite different. Almost half of the twenty-five men whose ages were recorded were in their thirties, another eight were forty or older, while only five were in their twenties. Nor were the women appreciably younger: a large minority of the wives, in fact, were older than their husbands.

Most Immigrants Were from Cities: Most of the East Anglians and Kentish men were urban and most were artisans. Excluding servants, forty-two of forty-nine men gave their occupation, and only eleven were farmers as against eight weavers, four cordwainers, four carpenters, two each of joiners, tailors, coopers, and mariners, as well as a brewer, a shoemaker, a grocer, a locksmith, a minister, a butcher, and a calendar maker.

Immigrants Were Not Destitute: Rich or poor, none of the migrants was hopelessly ruined at the time of his decision to leave England for America. Here again, their ages are worth  remembering. Most of the male heads of households were five or more years past their apprenticeship, all were old enough to be launched on a career, most were too young to have been driven to desperation by the incapacities of age or misfortune.

Immigrants Had Skills and Crafts: The 1637 group was made up mainly of families headed by urban tradesmen somewhere in mid-career who apparently chose to exchange their settled English vocations for life in a pioneer agricultural community of uncertain prospects.

Immigrants Were Harassed by Some Clergy: On top of depressions and epidemics came harassment by overzealous church officials. Bishop Matthew Wren held the diocese of Norwich (which comprised the shires of Norfolk and Suffolk) from the fall of 1635 to the spring of 1638. During this brief period he enforced ceremonialism and deprived nonconformist clergy with so much enthusiasm that at the calling of the Long Parliament he was impeached and spent eighteen years as a prisoner in the Tower.

A Primary Industry Failed Due to Lack of New Immigrants: The failure of clothworking is a mystery. Massachusetts possessed a considerable resource in the persons of so many trained weavers. Its population obviously required cloth. Yet despite repeated encouragement from the General Court, every attempt to establish a textile industry in the Bay Colony ended shortly after it began. The inhabitants of Rowley, many of whom were experienced English weavers, took the lead in the first great drive to create an indigenous textile industry in 1643. Three years later, however, they were still paying premium prices to Boston merchants for imported fabrics.

One wonders why so much determination produced so little. Part of the trouble may have been a labor shortage. Like all seventeenth-century trades, clothworking was extremely specialized and fragmented, while the “new draperies” in particular were also an unusually “labor intensive” industry. Although Massachusetts had a large body of immigrant weavers, it quite possibly lacked the necessary number of combers, throwers, carders, calendars, and the like to complement their skills.

SOURCE: T. H. Breen and Stephen Foster, “Moving to the New World: The Character of Early Massachusetts Immigration,” The William and Mary Quarterly, Vol. 30, No. 2 (Apr., 1973), pp. 189-222, Omohundro Institute of Early American History and Culture.

Will Trump Pardon Union President Accused of Bribery, Corruption?

Doug Jones, one of the most powerful labor leaders in the U.S., was indicted last week on federal corruption charges. No, the indictment is not politically motivated—in fact, if politics played into it, President Trump would likely put the kibosh on this prosecution.

Jones is accused of siphoning more than $1 million in union funds for luxury travel, extravagant dinners and purchases of high-price cigars, golf clubs and apparel for himself, his family and his lieutenants.

You don’t suppose he listed that as income on his 1040, do you? (Stolen/embezzled/illegally obtained income must be reported on a person's income tax return.)

The federal probe has broadened to look into Black Lake (pictured here), the autoworkers’ fabled if incongruous luxury golf course and retreat secluded in a northern Michigan woodlands. Ostensibly, Black Lake is used as a training center for union leaders (and this is true)— but its championship golf course offers a nice setting for cigar-chomping UAW leaders to make sweetheart deals with auto executives on the links, much in the fashion of the current U.S. president. (And a separate legal matter, a lawsuit by GM, alleges that the UAW gave a sweetheart deal to Fiat/Chrysler, putting GM in a bind for labor negotiations.)

Quoting from today’s New York Times:

In raids at Mr. Jones’s home and elsewhere, agents seized thousands of dollars in cash, hundreds of bottles of high-price liquor, hundreds of golf shirts, multiple sets of golf clubs and large quantities of cigars that had been billed to union accounts, according to court filings. One dinner described by prosecutors ran up a bill of $6,599.87 that included $1,760 for four bottles of Louis Roederer Cristal Champagne.
***

Now that President Trump has reversed convictions of military tribunals involving war crimes, the president has time this week to give thanks for another corrupt president who operates his empire like a mob boss. It's the new America. Doug Jones, you might be home for the holidays next year.

Should Baseball Teams Acquire Superstars? No, Says a Labor Economics Study

You would think that superstars make championship teams. On balance, no, they do not according to an exhaustive labor economics study (cited below). This intriguing study explains that team success, as it relates to a team’s talent, depends on narrow talent gaps between high and low performers. Teams with this narrow range of talent dispersion outperform teams that have wide talent variance, including superstars at the top of the range.

The study analyzed data from 1920-2009 for professional baseball teams and rosters.

Teams achieved the most wins when the dispersion of batting and pitching talent had an “optimal degree of inequality”— a Goldilocks effects that shows that teams with too little or too much variance underperform relative to teams in the middle for performance variance.

The study has intriguing implications for management of workplaces, especially where employees work in some type of team arrangement.

In workplaces that depend on joint performance, selecting the optimal distribution of talent inequality may be a determinant of success for the organization. Employers might put more thought into considering how a new hire will impact the team’s dispersion of ability.

Superstars may upset team chemistry is one key implication. Another implication is that a team with fairly evenly distributed talent will be greater than the sum of its part.

Back to baseball, I think of the Cubs and Cardinals, two teams I follow (I am a Cubs fan, which means I also follow the Cardinals, albeit with ungenerous wishes for their lack of success). The 2016 Cubs were a good examples of a team with a narrow talent dispersion—they had lots of promising but unproven players, and some decent veterans sprinkled in. The 2019 Cardinals seemed to over-achieve, relative to their talent—they had only one All-Star in 2019, but went fairly deep into the playoffs. The 2019 Cubs had a wide talent dispersion among position players— Baez, Rizzo, Contreras, and Bryant at the top-end weighed down by Heyward, Schwarber, Almora, Russell, and Bote-- not to mention bad pitching.  

Source: Kerry L. Papps, Alex Bryson, & Rafael Gomez, “Heterogeneous Worker Ability and Team-Based Production: Evidence from Major League Baseball, 1920–2009,” Labour Economics, Vol. 18 (2011), p. 310-319.

What Does Hunter Biden Have in Common with a Catholic Priest in 1865?

The Senate impeachment trial of President Trump will likely become a trial for Hunter Biden. The Constitution prohibits Congress from putting people on trial: “No Bill of Attainder or ex post facto Law shall be passed.”

The framers knew about Acts of Parliament that condemned individuals—usually opponents of the Crown— and stripped them of property. Sometimes, a bill of attainder led to execution.

The point of the constitutional bar against attainders is that courts— not legislatures—have exclusive power to try, judge, and convict people.

So, where do Hunter Biden and a Catholic priest fit into this conversation?

Congress passed a law right after the Civil War ended requiring certain professional people—including clergy— to swear an oath, under pain of perjury, that they did not support the Confederacy.

Father Cummings refused to take this oath, even though he in no way supported the Confederacy.

He was then jailed because he (a) continued to work as a priest, and (b) refused to take the oath.

This Catholic priest seems to be a more sympathetic figure than Hunter Biden, though I would note that anti-Catholicism was a powerful prejudice throughout most of the 1800s (and well into the twentieth century).

How does Hunter Biden figure into this?

Hopefully, not at all. But if Sen. Lindsey Graham, as Chair of the Judiciary Committee, subpoenas Biden, his lawyer would likely counsel him to contest the subpoena.

That wouldn’t necessarily stop Sen. Graham and his GOP colleagues for voting to hold Biden in contempt of Congress.

In 1857, Congress enacted a law that made contempt of Congress a criminal offense against the United States. The last time Congress arrested and detained a witness was in 1935.

The point is that an impeachment trial has only one defendant: the president. And if the president loses, he is removed from office-- he does not go to jail. 
When impeachment trials are used to taint other people—and again, the judicial character of an impeachment trial matters here— it lapses into the type of highly vindictive use of royal power that Parliament wielded against opponents of kings and queens.

Was Passover A Militant Labor Dispute?

Photo Credit: The Church of Jesus Christ Latter-Day Saints

The prompt for this question is not a re-reading of the Hagadah— the Passover story. 
It is the rise of American labor militancy.

Earlier this week, 147 school districts in Indiana cancelled school when teachers walked out. Many were in Indianapolis to protest low salaries that start at $30,000. They’ve watched large-scale teacher walkouts in Oklahoma, Arizona, Kentucky, and West Virginia achieve good results for improving pay and preserving benefits.

When an occupation that is 78 percent female, and nearly 100% college educated, walk-off their jobs to protest, anything is possible for labor militancy.

That’s a special case, you say? 
Recently, Uber drivers in major cities had a coordinated shutdown of service by turning off their apps while they were sitting at airports. Lyft’s temporary surge in business was felt as something like a strike for Uber.

That brings me to the main story: A federal court imposed a $93 million judgment this week on the ILWU, otherwise known as the dockworkers’ union. Back in the day, however, they were known as Wobblies because of their radical bent.

The union has only $8 million, so its future is uncertain.

This all stems from a tiny labor dispute that got out of hand in Portland, Oregon. The port is unionized, but a warehouse opened on the property with another union representing those workers. The ILWU demanded that two jobs at the warehouse be represented by their union. Their demands were rejected.
Next, the ILWU refused to handle cargo to and from that warehouse. Over time, shippers lost confidence in the port. 
Eventually, the whole place shut down because the labor dispute chased away business.

Under a 1947 law (Taft-Hartley Act), unions are financially responsible for damages caused by “secondary boycotts.” 
A primary boycott occurs when a union stops working or calls for a boycott against its employer. In this case, the ILWU had no employees at the Portland warehouse, but they boycotted it illegally. Hence, it was a secondary boycott. 
And the teachers' walkouts are secondary actions, too. They aren't directed at their employer, a specific school district. No, they are aimed at another party (state legislatures).

Who cares, you say.

Well, most things we buy at the store (ahem, or via Amazon) come through a West Coast port—and all of them are ILWU-represented. If they cannot survive as a union, then chaos could erupt in one more ports. 
As someone who is sympathetic to labor, I’m just telling it straight: Those workers have a history of taking matters in their hands, if they feel threatened. That is not good for trade.

So what does this have to do with Passover?

Moses was a peaceful man— that is, until he witnessed an Egyptian slave master smiting a fellow Jew. Moses slew the slave master. He fled across the Red Sea to Midian, where he encountered The Angel of the Lord, speaking to him from within a burning bush on Mount Horeb. 
From there, Moses was directed to free the Jewish people.

The point is that when it comes to labor, people have a breaking point-- whether they are teachers, Uber drivers, dockworkers, or slaves. And when they reach a boil, upheaval often results.

Your Job May Involve a Quid Pro Quo

You might have a job. Some of you have a written employment contract. Most of you do not.

To make a little more sense of today’s impeachment proceedings, I offer an employment law case that roughly parallels our political discourse on quid pro quos and related.

Wayne Pugh worked for more than 30 for See’s Candies, a fresh-candy maker based in California. He rose from the bottom to Senior VP. 
He had no written contract. 
In the 1950s, the principal owner and CEO, Laurence See, had an oral agreement with all of his managerial employees: You have the same “for cause” employment security as our union-represented workers in the plant. 
The agreement was never rescinded or modified.

The meaning of “for cause” might not be clear to you— but to a See’s employee, this meant you wouldn’t be fired unless the Company had a good cause to terminate you. Now, granted, even that term is vague—but it means that there must be some justification given, and some due process to rebut an allegation of wrongdoing, before a See’s worker or manager could be fired.

Wayne Pugh was summoned to the CEO’s office one day in the late 1970s. 
Laurence See had long-since passed away. 
The-then CEO told Mr. Pugh to “look in the mirror” because he was being fired on the spot. He was given time to clean out his 30+ years of office possessions and was escorted off the property. 
(Pugh was fired because he uncovered and blew the whistle on a corrupt, under-the-table bribe from another VP to a union officer, in exchange for the union granting concessions to See's ... um, another quid pro quo in this story.)

Pugh sued, claiming he had an employment contract. 
See’s Candies said, “No. Pugh has no contract. A contract must be in writing.”

Any first year law student would tell you that the Company was right.

But Pugh won his case. The California Supreme Court said that Mr. See’s vague oral promise from the 1950s, backed by the authority of his office, and including lots of corroborating evidence that he meant what he said, all meant that Mr. Pugh was working on an “implied oral contract.” 
If you’re following along, that’s a bit of a contradiction—after all, a contract must be in writing!

But not when the oral exchange of understandings, backed by actual events, re-creates the actualities of a written contract.
Here, there was a quid pro quo: Be loyal to See’s—don’t quit and especially don’t work for our competitors. In return for your loyalty, we will forego our right to fire you at-will, and will preserve your job security, unless you give us good cause to fire you.

Whatever your political leanings, I hope this story helps to clarify what a quid pro quo is in the context of an agreement. It's not necessarily sinister: in fact, many quid pro quos are perfectly legitimate. 
It is a meeting of minds, where one benefit is exchanged for another benefit.

Do You Know Someone Over 40 Who Was Suddenly “Let Go”?

This is a common—and devastating—occurrence for many “older workers.” We address this question in tomorrow’s class. “Older workers” is in quotes because the U.S. has a law called the Older Worker Benefits Protection Act (OWBPA). It amends the Age Discrimination in Employment Act, a law that pertains to employees who are 40 years of age or more.

Perhaps you—or a friend, or parent, or spouse— has experienced the following: They show up for work, and have a good (or better work record), and they are suddenly told that this is their last day of employment. They are presented with a severance agreement, where they waive their right to sue for age discrimination or anything else (note: if there is no severance agreement presented to the employee, there may be age discrimination liability, but as you will see in a second, the OWBPA does not apply).

Take my friend, over 60 years old, as an example: A short time ago, he was called into a meeting around 2:00 p.m. He was told that his employer was “going in a different direction.” His email was cutoff while he was in the short meeting. He was given five minutes to clean out his desk.

You would think he did something wrong. Nope. This happens over and over again.

He was handed a severance agreement. He was asked to waive any claim to legal action in exchange for about three months of severance pay.

I looked it over. The agreement met OWBPA requirements. That did nothing to alleviate the shock and humiliation my friend and his wife experienced—including their sudden need to spend about $16,000 on new health insurance.

The OWBPA requires an employee to give a “knowing and voluntary” waiver of his or her right to sue.

Here are the elements of the law (I am summarizing):

(A)   the waiver is written in plain language

(B)    the waiver specifically states what rights are being waived, e.g., right to sue for discrimination;

(C)    the individual does not waive rights or claims that after the date the waiver is executed (e.g., if a person is in a defined benefit pension and qualifies, there is no waiver of the right to the pension);

(D)   the individual receives additional compensation, apart from accrued benefits (my friend received severance pay, and after some discussion, his accrued, unsued vacation pay);

(E)    the individual is advised in writing to consult with an attorney prior to executing the agreement;

(F)    the individual is at least 21 days within which to consider the agreement and seven days after signing to rescind.

My friend’s experience was harsh but better than the cases that gave rise to the OWBPA. Employers presented employees with these waivers, and basically said if you want your pension or other accrued benefits, sign this waiver of your right to sue.

My friend was spared that coercion due to the this 1980s law. But like millions of employees since that time, he was likely terminated because his employer wanted to hire a younger employee for much less money.

And that brings the waiver back into focus. That is age discrimination. But my friend, like millions of people since the 1980s, waived his discrimination claim because he didn’t have resources or time to sue, and he was getting a severance payment.

Bribery and Impeachment: Why the Debate of September 8, 1787 Matters

Fact-based news outlets are reporting that Democrats are moving toward charging President Trump with the offense of bribery. Article II of the Constitution specifically enumerates bribery as an impeachable offense. 

This brief post makes no predictions. I’m simply taking you the Constitutional Convention. 

The minutes for these profound debates can be found in a Yale website called the Avalon Project (it is one of the most phenomenal web tools for research on the planet).

Here is the link for September 8, 1787 (https://avalon.law.yale.edu/18th_century/debates_908.asp). Let me republish the relevant part, without commentary. I’ll let you decide if this has significance or not.

***

The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up. 

Col. MASON. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration."

Mr. GERRY seconded him.

Mr. MADISON So vague a term will be equivalent to a tenure during pleasure of the Senate.

Mr. Govr. MORRIS, it will not be put in force & can do no harm. An election of every four years will prevent maladministration.

Col. MASON withdrew "maladministration" & substitutes "other high crimes & misdemesnors agst. the State"

On the question thus altered

N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. no. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. [FN13] Geo. ay. [FN14]

***

Mr. MADISON, objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemesnor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.

Mr. Govr. MORRIS thought no other tribunal than the Senate could be trusted. The supreme Court were too few in number and might be warped or corrupted. He was agst. a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out.

Mr. PINKNEY disapproved of making the Senate the Court of Impeachments, as rendering the President too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine agst. him, and under the influence of heat and faction throw him out of office.

Mr. WILLIAMSON thought there was more danger of too much lenity than [FN15] too much rigour towards the President, considering the number of cases in which the Senate was associated with the President.

Mr. SHERMAN regarded the Supreme Court as improper to try the President, because the Judges would be appointed by him.

On motion by Mr. MADISON to strike out the words-"by the Senate" after the word "conviction"

N. H. no. Mas. no. Ct. no. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. [FN16]

In the amendment of Col: Mason just agreed to, the word "State" after the words "misdemeanors against" was struck out, and the words "United States" inserted unanimously, [FN17] in order to remove ambiguity.

On the question to agree to [FN18] clause as amended,

N. H. ay. Mas. ay. Cont ay N. J. ay. Pa. no. Del ay Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN19]

On motion [FN20] "The vice-President and other Civil officers of the U. S. shall be removed from office on impeachment and conviction as aforesaid" was added to the clause on the subject of impeachments.

The clause of the report made on the 5th. [FN15] Sepr. & postponed was taken up, to wit-"All bills for raising revenue shall originate in the House of Representatives; and shall be subject to alterations and amendments by the Senate. No money shall be drawn from the Treasury but in consequence of appropriations made by law."

It was moved to strike out the words "and shall be subject to alterations and amendments by the Senate" and insert the words used in the Constitution of Massachussetts on the same subject- [FN21] "but the Senate may propose or concur with amendments as in other bills"-which was agreed too nem: con:

On the question On the first part of the clause-"All bills for raising revenue shall originate in the house of Representatives' [FN22]

N. H. ay. Mas. ay. Ct. ay. N. J. ay Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN24]

Mr. Govr. MORRIS moved to add to clause (3) [FN25] of the report made on Sepr. 4. [FN26] the words "and every member shall be on oath" which being agreed to, and a question taken on the clause so amended viz-"The Senate of the U. S. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present; and every member shall be on oath"

N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. ay. Geo. ay. [FN27]

Mr. GERRY repeated his motion above made on this day, in the form following "The Legislature shall have the sole right of establishing offices not herein [FN28] provided for," which was again negatived: Mas. Cont. & Geo. only being ay.

Mr. Me. HENRY observed that the President had not yet been any where authorised to convene the Senate, and moved to amend Art. X. sect. 2. by striking out the words "he may convene them [the Legislature] on extraordinary occasions" & insert "He may convene both or either of the Houses on extraordinary occasions." This he added would also provide for the case of the Senate being in Session at the time of convening the Legislature.

Mr. WILSON said he should vote agst. the motion, because it implied that the senate might be in Session, when the Legislature was not, which he thought improper.

On the question

N. H. ay. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. no. Geo. ay
***
Here is the resulting language:

Impeachment

ttee of Impeachment Managers in the Senate Chamber, Washington, D.C.

“The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
— U.S. Constitution, Article II, section 4