Beware What You Wish (Right-to-Work, Obamacare, Seat Belt Laws, and My Damn HOA!)

Today, Missouri became the 28^th state to abolish mandatory union dues.

In the following parable, I speak for a fictional person who supported the Missouri law in 2017 but had a change of heart in 2018.

….

Crystal's Story

My 2017 started out great! In early February, we finally got a law in Missouri that made payment of dues purely voluntary. I went to HR immediately and tore up my payroll deduction form for union dues. I told my co-workers to do the same. Most told me they were planning to do it already. 

It felt great to save $1,200 a year in union dues because I make only $52,000 at the factory in St. Louis.

The year got better for me when Obamacare was repealed on July 4, 2017. It was hugely expensive and my policy had high deductibles. States were given authority to set up their own insurance systems. I wasn’t sure what Missouri had, but I know that my take-home pay increased by $650 a month!

In August, I got together with some of my neighbors and attended the annual condo association meeting. We told the officers that our $300 annual fee was too high—and we demanded that our fees be cut to $100. We won!

By the end of 2017, I saved $1,200 in dues, $200 in condo fees, and about $3,600 in health insurance payroll deductions.

Things changed for me in 2018. 

On January 20^th, we had a three inch snowfall. As I was driving a block from my home, my pick-up skidded into the back of a car. It wasn’t a big deal, but my bumper was damaged and so was the bumper of the car I hit. I was upset, however, because the damn street wasn’t plowed.

I went to the emergency room because I had a bad headache. 

I don’t wear seat belts—I don’t care what the law says, seatbelts are too uncomfortable. 

I found out that I am uninsured. The ER said I’d be treated anyway, and they were right. They got to me after I was sitting there for four hours.

I was so disoriented from the accident that I forgot to call ahead to work.

When I showed up at work, I was told to report to HR. 

These jerks assessed me three points under the company’s damn “point system.” I got one point for an absence. I told HR you can’t give me a point for missing work when I have an accident. They said I get a point anytime I’m absent—they call it a no fault system because they got sick and tired of reading doctor’s excuses they thought were bogus reasons to get out of work.

The real kicker was they gave me two full points for being a no-call, no-show. “That’s crazy! How can you do that to people in an accident?” 

“We had to call in a replacement for you. The line couldn’t start for an hour. We had to pay that person overtime because they were above 40 hours for the week. Your no-call, no-show cost us money.”

That took me from three points to six points—and automatic termination.

“You can’t fire me like that!”

….

Yes, they can. It’s called employment-at-will. 

Her union? They filed papers to de-authorize their status as the bargaining representative for her workplace due to lack of funding.
If they were at Crystal's workplace they'd be able to file a grievance take her case to an arbitrator. 

The $200 she saved on her HOA?
Crystal's HOA dropped its plowing contract—it relies only on city services, and since the condo is on a secondary street, it doesn't  get salted or plowed for a day. 

The bumper on Crystal's truck? She didn’t repair it because of the $2,000 deductible-- but she had to pay for the other lady’s bumper to avoid a lawsuit. 

Now, about the health insurance. Crystal was billed $600 for the ER visit. They checked her vitals, ran a concussion test, said she had a mild concussion, and sent her home with some meds. She still has headaches but can’t see a doctor because she's not insured.

Her job? She doesn't have one. And Crystal's state senator just introduced a bill to limit unemployment from 26 weeks in a year to 10 weeks. He says it will cause more employers to locate in Missouri.

Tech Companies and the Ban: Beyond the Headlines

Ninety-seven high-tech companies filed a “friend of the court” brief in the Washington case involving the (travel) (Muslim) ban. I’ve used parentheses here because this post is not an opinion piece—it is meant to be informational. Trump calls it a travel ban; many others say it is a religious ban.

The roster of companies appears below. Apple, Google, Uber—even Twitter— are together on this brief.

The essence of their argument is in the quoted red text.

My prediction? The Ninth Circuit will affirm the district court, meaning that the order will be stayed. The Supreme Court will expedite the review process. My very uncertain prediction is a 5-3 vote to overturn parts of the executive order—likely on procedural grounds. I think the Court will avoid a sweeping ruling that green-lights or red-lights President Trump. I am guessing (that’s all it is) that Justice Kennedy will be the key vote.

One more point: Win or lose, these tech companies are deeply troubled by the anti-immigration rhetoric and stance of Donald Trump, Steve Bannon and the administration. They will begin the process of relocating parts of their physically-sited headquarters and locations to other nations, e.g., Canada, Germany, and Australia.

Now, their legal arguments and names:

The Executive Order Is Unlawful;

The Order discriminates on the basis of nationality

The Order exercises discretion arbitrarily.

The Order represents a significant departure from the principles of fairness and predictability that have governed the immigration system of the United States for more than fifty years—and the Order inflicts significant harm on American business, innovation, and growth as a result.

The Order makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees.

It disrupts ongoing business operations. And it threatens companies’ ability to attract talent, business, and investment to the United States.

AdRoll, Inc.

Aeris Communications, Inc.

Airbnb, Inc.

AltSchool, PBC

Ancestry.com, LLC 


Appboy, Inc. 


Apple Inc. 


AppNexus Inc. 


Asana, Inc. 


Atlassian Corp Plc 


Autodesk, Inc. 


Automattic Inc. 


Box, Inc. 


Brightcove Inc. 


Brit + Co 


CareZone Inc. 


Castlight Health 


Checkr, Inc. 


Chobani, LLC 


Citrix Systems, Inc. 


Cloudera, Inc. 


Cloudflare, Inc. 


Copia Institute 


DocuSign, Inc. 


DoorDash, Inc. 


Dropbox, Inc. 


Dynatrace LLC 


eBay Inc. 


Engine Advocacy 


Etsy Inc. 


Facebook, Inc. 


Fastly, Inc. 


Flipboard, Inc. 


Foursquare Labs, Inc. 


Fuze, Inc. 


General Assembly 


GitHub 


Glassdoor, Inc. 


Google Inc. 


GoPro, Inc. 


Harmonic Inc. 


Hipmunk, Inc. 


Indiegogo, Inc. 


Intel Corporation 


JAND, Inc. d/b/a Warby Parker 


Kargo Global, Inc. 


Kickstarter, PBC 


KIND, LLC 


Knotel 


Levi Strauss & Co. 


LinkedIn Corporation 


Lithium Technologies, Inc. 


Lyft, Inc. 


Mapbox, Inc. 


Maplebear Inc. d/b/a Instacart 


Marin Software Incorporated 


Medallia, Inc. 


A Medium Corporation 


Meetup, Inc. 


Microsoft Corporation 


Motivate International Inc. 


Mozilla Corporation 


Netflix, Inc. 


NETGEAR, Inc. 


NewsCred, Inc. 


Patreon, Inc. 


PayPal Holdings, Inc. 


Pinterest, Inc. 


Quora, Inc. 


Reddit, Inc. 


Rocket Fuel Inc. 


SaaStr Inc. 


Salesforce.com, Inc. 


Scopely, Inc. 


Shutterstock, Inc. 


Snap Inc. 


Spokeo, Inc. 


Spotify USA Inc. 


Square, Inc. 


Squarespace, Inc. 


Strava, Inc. 


Stripe, Inc. 


SurveyMonkey Inc. 


TaskRabbit, Inc 


Tech:NYC 


Thumbtack, Inc. 


Turn Inc. 


Twilio Inc. 


Twitter Inc. 


Turn Inc. 


Uber Technologies, Inc. 


Via 


Wikimedia Foundation, Inc. 


Workday 


Y Combinator Management, LLC 


Yelp Inc. 


Zynga Inc. 
 MG

Can a President Disobey a Court Order? Recalling the Trail of Tears

Samuel Worcester is pictured above. A missionary, he befriended the Cherokee nation and helped them translate their letters into “talking leaves.” Worcester felt passionately that the Cherokee were being wronged by settlers who grabbed their lands and forced them into one-sided treaties.

When Georgia seized Cherokee lands, Worcester contrived to set up a court battle. Georgia law made it illegal for a white man to be on Indian land. After he was arrested, his case went before the Supreme Court.

The court ruled for the missionary in Worcester v. Georgia (1832), holding that Georgia's law was unconstitutional. The ruling stated that only the federal government had constitutional authority to regulate relations with Indians. This meant Georgia’s conviction of Worcester was unlawful.

President Andrew Jackson—who, like Georgia—wanted to move the Cherokee Nation west of the Mississippi River, was put in position to enforce the Court’s ruling. There is disagreement among historians; but some accounts indicate that Jackson said, “(Supreme Court Chief Justice) John Marshall made his decision, now let him enforce it." 

This much is clear: President Jackson could have used federal troops to enforce the Supreme Court order to free Worcester. Worcester remained in jail after winning before the Supreme Court. Jackson used the military, however, to march out the Cherokee in 1838 in a forced migration known as the Trail of Tears. 

The Constitutional Significance of Trump’s Alleged Golden Shower

Ask 100 Americans today if the state has a right to make laws about their consensual sexual behavior, 99 will adamantly say, “No!”

But public attitudes have changed a lot in 30 years. In the mid-1980s, a “family values” conservative named Michael Bowers was Georgia’s Attorney General. To score points with some evangelical Christians, he took up an oral sex case that Atlanta prosecutors dropped.

Police went to Michael Hardwick’s apartment to serve a warrant for a minor alcohol violation—and Hardwick’s roommate made a fateful mistake by inviting the police in. There, they found Hardwick engaged in oral sex with a consenting man. Hardwick got mad; so the police cited him for “criminal sodomy.” At that time, Georgia and dozens of states had 1800s-era sex laws on the books. Most of these laws made oral and anal sex criminal offenses. Throughout the 1900s, almost no one enforced these laws in cases of lawful consent.

Bowers wanted to push the case, to play to his base—and he won in a 5-4 ruling before the Supreme Court.

In 2003, the Supreme Court overturned Bowers v. Hardwick. The case was Lawrence v. Texas. Justice Anthony Kennedy wrote the majority opinion. He said that intimate, adult consensual conduct is protected by the Constitution.

Justice Scalia wrote an angry and morally indignant dissent: He wrote that (quoting below):

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.... [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

Why does this matter today? Because Judge Neil Gorsuch has expressed support for Justice Scalia’s position. He will almost certainly be asked to comment on this passage.

He has two choices.

Answer No. 1: Lawrence v. Texas is settled law. I would have voted differently in that case; but it is a precedent the Court must now follow.

Or, Answer No. 2: [Some type of equivocation, such as I cannot answer about a hypothetical case that is not before me.]

If he answers with the latter, the Michael Bowers of the world will propose new sodomy laws. These laws, by the way, apply to heterosexuals—but the laws are never enforced against a male-female couple.  

Even Donald Trump has a constitutional right to a golden shower in the privacy of his room. Here’s a silver lining: The Cato Institute—a powerful libertarian think tank— has already spoken out against the Trump Muslim ban. They believe it tramples on freedom with its extreme overbreadth. Cato has a strong aversion to government intervention in people’s lives. They found the ACA a terrible intrusion on freedom, and they’d react the same way to newly enacted sodomy laws. In short, the libertarians and liberals would be in a strong alliance to fight this turning-back of the constitutional clock.

Here’s hoping Judge Gorsuch picks Answer No. 1!

PS: What happened to Attorney General Michael Bowers after he won his case? He was involved in a decade-long extra-marital affair with his employee and secretary, a former Playboy Club waitress. The Atlanta news media made a big deal of his hypocrisy. The revelation put an end to his run for governor.

Fires on the Radical Right and Left: The Past Has Become the Present

If history is cyclical, we are turning back the clock about 100 years. 

The KKK was a menace then. It actively intimidated blacks, Jews, immigrants and Catholics. New York could not outlaw the KKK, but passed a registration law that denied the group secrecy rights. The law required members of any group that demanded an oath as a condition of membership (except labor unions) to file copies of the group’s “constitution, bylaws, rules, regulations and oath of membership, together with a roster of its membership and a list of its officers for the current year.”’ In Bryant v. Zimmerman, 278 U.S. 63 (1928), George Bryant, a member of a KKK branch called the Provisional Klan, was arrested for failing to comply with the registration requirements of the law.

He argued that he and his group had a right to secrecy, and that they were being treated unequally relative to other private groups. These were powerful arguments. 

Nevertheless, the Supreme Court ruled that New York’s “Klan” law was constitutional. Why? Because the Klan was known to engage in acts of unlawful intimidation and violence.

The ruling is valid today—but some white supremacy groups stop short of violence and intimidation. They espouse pernicious ideas about racial separation and exclusion. (Others act violently.)

...

Neither students nor faculty were involved in the violence at U.C. Berkeley. But whoever lit the fire and damaged property, their actions resemble the radicalism of socialists and anarchists a century ago. 

Like today, people with liberal viewpoints were lumped together with violent agitators in “syndicalism” laws in the early 1900s. These laws made it illegal to advocate violence. They were aimed at socialist and anarchists. 

In 1969, the Supreme Court ruled that a common type of syndicalism law violated the Constitution. In this case, the law wasn’t applied to a socialist agitator—it was applied to a member of the KKK. 

Brandenburg invited a Cincinnati television to a Ku Klux Klan rally on a farm. The TV crew’s film showed 12 hooded figures, some of whom carried firearms, gathered around a burning cross. The film captured derogatory utterances against blacks and Jews. Brandenburg was fined $1,000 and sentenced to a minimum of 1-10 years in prison.

The Supreme Court overturned the conviction, stating: “We are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action.”

The lesson? Extremists on the right and left have a right to advocate for violence. Once they take specific actions to injure, harass, intimidate, destroy property and the like (or planning actions), they have crossed the constitutional line. It's a fine line today, when many people are already highly agitated and easily provoked to act on a harmful impulse.

“Marriage Fraud”— The Next Fake Issue in Immigration

Melania Trump, born in the former Yugoslavia, came to the U.S. on a H-1B work visa. Elaine Chao—wife to Senate Leader Mitch McConnell— was born in Taipei, Taiwan. Her biography reports that she came to the U.S. on a freight ship along with her mother and two younger sisters. Their passage took 37 days.

Both women achieved extremely high levels of professional success on their own merits—Melania as a world class model in a highly competitive labor market, and Elaine in a variety of key leadership roles (e.g., United Way president) after earning an MBA from Harvard.

In 1965, the U.S. moved from a restrictive to a permissive immigration policy in response to its position as a world leader— militarily, but also as a beacon of freedom.

Family—including marriage— was a key part of this change. When Chao arrived in the U.S., her father was here as a student. Presumably, she acquired citizenship through his legal status in the U.S.—this would be a routine way to establish citizenship.

The path to citizenship for these two leading ladies of the GOP is at odds with a vocal segment of Republicans who want to take away the “family adjustment” element of the Immigration and Nationality Act. They make the argument that there is rampant “marriage fraud.”

In Louisiana, legislation was introduced in 2015 to prohibit or severely limit this path to citizenship. In a news interview, state senator A.G. Crowe said, “Fraudulent marriage is the number one way to get a green card.” Like so many anti-immigration bills, the proposed law would require much more documentation for a marriage license than the State Department requires to establish the validity of a marriage.

Critics of the bill said that marriage fraud isn’t a widespread problem in the state. See here: http://www.ibtimes.com/immigration-reform-2015-marriage-fraud-bill-targeting-undocumented-immigrants-1962516

My wife, Janet, added a nice point when I ran this post by her. Donald Trump wasn’t divorced when Melania and the president started to date. Now that’s real marriage fraud!

Let’s celebrate having Melania Trump and Elaine Chao in the U.S. as citizens—and let’s hope that Donald Trump and Mitch McConnell look no farther than their household to push back against the idea of denying family citizenship.

For Churches Who Openly Engage in Politics: Think About the Costs

Donald Trump used the National Prayer Breakfast—an event that was created to unify Americans of diverse faiths—for crass politics. He announced that he will seek legislation to repeal tax code language that requires churches, synagogues, mosques and the like to avoid specific political statements and advocacy to remain tax exempt.

Not smart. Some houses of worship already violate the ban—and it’s not enforced. So, why stir another hornet’s nest?

But later in the day, Trump expanded the message to say that he’ll promote regulations to protect religious belief to be used by employees and businesses—code language for a right to deny services to LGBTQ customers, clients, and co-workers.

If Trump is heading us down this divisive path as a nation, some things to consider:

First, the sidewalks that are in front of churches are public. Peaceful protests are permitted there.  In Snyder v. Phelps, 562 U.S. 443 (2011), the Supreme Court held that speech on a public sidewalk about a public issue cannot be liable for a tort of emotional distress, even if the speech is found to be "outrageous." This case involved  picketers associated with the Westboro Church who cruelly displayed placards such as "God hates you," "Fag troops," "Semper fi fags" and "Thank God for dead soldiers" within ear-shot of the funeral of U.S. Marine Lance Corporal Matthew Snyder.

Second, Trump’s order could have the boomerang effect of turning tolerant churches, synagogues, mosques and other house of worship into a powerful political network.

Third, local communities could pass ordinances that remove property tax exemptions from “political churches.” The president would say his order trumps local law—but let’s recall his inaugural address, the part that vowed to return power from the federal government to states and local government, i.e., the people.

Ban a Group? Let’s Start with American Nazis

As part of my research on white identity groups in the workplace, I’m examining criminal convictions of American Nazis. What’s the connection? It’s communication. American Nazi’s communicate race hatred with a detailed set of body tattoos that are earned by killing or seriously injuring immigrants, blacks, Jews, and gays and lesbians.

My argument is that tattoos that express racial hatred should not be treated as grounds of protected speech in the workplace, even assuming an employee has not harmed or threatened anyone at work.

I’ll post more information later. For now, here are two typical cases:

People v. Wagner & People v. Slavin (N.Y.App. 2004):

“White supremacist tattoos were relevant as to motive and intent to commit aggravated harassment in the second degree. Although the tattoos “may have reflected [the] defendant's inner thoughts, the People did not compel him to create them in the first place.”

In the early morning hours of September 17, 2000, defendant and an accomplice lured two Mexican “day laborers” into a car with the false promise of work, and  drove them to an abandoned building in Suffolk County on Long Island. During the drive, defendant asked the two men whether they were Mexicans. Almost immediately after arriving at the building, defendant and his accomplice launched an unprovoked and brutal attack on their two unsuspecting victims. Defendant struck both men in the head with a metal post-hole digger, while his accomplice stabbed one of them several times. The two victims, one of whom was bleeding profusely, contrived to escape their assailants by fleeing onto the Long Island Expressway. There, a passing motorist rescued them.

....

People v. Kennell, (Cal. App 2005), 2005 WL 1367808.

Jose Cisneros (Victim) was attacked and severely beaten. James Grlicky and Waylon Kennell were charged for the attack and were jointly tried with separate juries. Grlicky's jury found him guilty of attempted murder, robbery, assault by means of force likely to produce great bodily injury, battery with serious bodily injury, and conspiracy to commit the latter three offenses.

…

Keith Akins, an expert on white supremacist activities, testified that white supremacists, or “skinheads,” wear black and red shoelaces to show they shed someone's blood for their cause. During the second interview, Grlicky told Henry that he, Kennell and Smith watched the movie “Romper Stomper,” which Kennell brought to Grlicky's house about six months earlier.

Grlicky knew what “curbing” is, describing it as putting “somebody's face down on the ground and you stomp the back of their head to hurt them.” 

Make America Dumb Again! Trump Cuts H-1B Visas

President Trump has issued a draft of an executive order to direct the U.S. Citizenship and Immigration Service to re-examine the H-1B visa program.

This program allows American employers each year to hire 65,000 foreign nationals on a three-year basis if the employer can provide that it advertised the job first to Americans, and second, if the employer hires the foreign-born worker at a “labor certified” salary that reflects market conditions that are measured by the U.S. Department of Labor. As an illustration, computer programming occupations in Champaign, Illinois have a certification floor of about $70,000. This means a firm cannot hire an H-1B worker without paying that minimum.

The 65,000 limit can grow by another 20,000 with foreign-born students who graduate in the U.S and find jobs that meet H-1B requirements. They can stay approximately 2 1/2 years.

The yearly limit can be extended through an expensive legal process, for up to three years.

For 2014—the last year for such data are available— here is the composition, by educational attainment, of the H-1B workforce:

Education known: 315,828

No high school diploma: 78

High school graduate: 268

Less than 1 year of college credit: 60

1 or more years of college credit, no diploma: 362

Associate's degree: 308

Bachelor's degree: 142,148

Master's degree: 136,188

Doctorate degree: 24,468

Professional degree: 11,948

In short, 314,752 out of 315,828 H-1B visa holders has a college degree—that’s 99.6%.

If President Trump eliminates that group, he’ll succeed in making America dumber. And what do these people do? They are your physicians, radiologists, computer programmers, pharmacists, IT managers, engineers, professors, architects, construction managers, and other highly skilled workers.

For more, see 

https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/H-1B/h-1B-characteristics-report-14.pdf

Judge Gorsuch: The Case of the Muslim Prisoner Who Claimed a Religious Right to a Halal Diet

We live in an age of quick and polarized judgments. This post does not lead to any endorsement or condemnation of Judge Gorsuch’s nomination to the Supreme Court. It’s simply a small point of information for those who want to learn a little more.

Judge Gorsuch believes that religious freedom laws (there are several, if not numerous statutes) should be interpreted broadly. Most legal cases involve the right of fundamentalist Christians.

I came to work today with this question: Where is Judge Gorsuch’s thinking with respect to observant Muslims?

The preliminary answer is that Judge Gorsuch respects the rights of Muslim worshipers—to the extent that one case tells us anything. 

On the other hand, I’ve marked out a paragraph that troubles me because I wonder if he’ll take the same view with Christian petitioners.

Here’s the case (Abdulhaseeb v. Calbone). Madyun Abdulhaseeb, an Oklahoma inmate who follows the Islamic faith, filed suit under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). In substance he claimed various violations of his dietary religious rights. The trial court threw out his lawsuit. The Tenth Circuit Court of Appeals reversed significant parts of the ruling. In doing so, they reasoned he presented enough evidence to merit a trial on his claims.

It’s a lengthy case; but Abdulhaseeb argued that he had a right to a halal diet, and as part of the right, the state could not put pudding or gelatin on his plate (because they contain prohibited pork byproducts).

Three judges—including Judge Gorsuch— ruled in favor of the Muslim prisoner on the main thrust of his dietary claims.

Judge Gorsuch wrote a concurring opinion. He didn’t have to do this. This is reminiscent of Justice Scalia. Basically, he’s saying that his brethren didn’t fully explain their ruling. This is just one case, but when a judge does this frequently it tends to have a polarizing effect on an appellate court, where judges sit in groups (called panels). It’s kind of like one-upping a colleague at work.

Here’s a paragraph that encourages me, followed by a paragraph that concerns me:

Encouraged to see this from Judge Gorsuch: “Mr. Abdulhaseeb deserves the benefit of the doubt. Accordingly, we charitably interpret Claim 10 to allege only the first, most troublesome scenario—that Mr. Abdulhaseeb requires a halal-certified diet that he is not currently receiving and that ODOC (Oklahoma Department of Corrections) has provided no means for him to procure for himself. Or, put another way, that he has been forced to choose between violating his religious beliefs and starving to death. Whatever else might be said about RLUIPA, redressing this sort of Hobson's choice surely lies at its heart.”

Worried about this from Judge Gorsuch: “Claim 2, on the other hand, doesn't meet that threshold. By alleging that ODOC sporadically placed questionable foods, such as jell-o and pudding, onto his cafeteria tray, thus rendering all of the tray’s contents inedible, Mr. Abdulhaseeb has described only a moderate impediment to—and not a constructive prohibition of—his religious exercise. It’s surely a burden to forgo an occasional meal. But it's not a substantial burden, and RLUIPA proscribes only government actions that substantially burden religious exercise.”

The bottom line is that Judge Gorsuch views religious rights for this Muslim in a way that prohibits substantial impairment but not moderate impairment.

Now my question is, what happens when a Christian florist, baker, or photographer is requested to serve a gay or lesbian wedding ceremony. Is doing one ceremony against one’s Christian beliefs a substantial or moderate impairment? By the reasoning here, serving one gay/lesbian wedding is equivalent to missing one Halal meal—a moderate impairment. But who knows what Judge Gorsuch says? We’ll find out, in time.

Judge Thomas Hardiman: Mainstream Conservative Judge on Immigration, Employment

Law360 interviewed me about Judge Thomas Hardiman, an appellate judge from the Third Circuit Court of Appeals (Philadelpha). I share my assessment.

My assessment of Judge Hardiman is limited to employment and immigration cases (i.e., not reproductive rights). Judge Hardiman’s decisions are well explained and written in a neutral tone. They lack Justice Scalia’s tart, expansive, know-it-all prose. His decisions don’t appear to stray beyond the facts, as Justice Alito is prone to do when he engages in dicta to signal the bar to advance Justice Alito’s thinly veiled agenda.

On to some cases.

On immigration, Judge Hardiman’s record is what one would expect from a competent appellate judge. The grounds for reviewing orders from immigration judges are extremely narrow. The fact that Judge Hardiman frequently denies appeals by petitioners for asylum is entirely consistent with how federal appellate judges rule.

Two cases are worth mentioning, however.

In Gjonomadhi v. Attorney General of U.S., 310 Fed.Appx. 495 (3d Cir. 2009), Judge Hardiman disagreed with the immigration judge’s conclusion that an asylum petitioner from Albania had not suffered political persecution. He ruled, “we find that the IJ's conclusion that there is ‘in the record no compelling evidence that the respondent suffered past persecution’ cannot stand.” The point of this case is that Judge Hardiman doesn’t rubber stamp immigration appeals from aliens who have lost deportation cases before immigration judges.

Kwee v. Attorney General U.S., 269 Fed.Appx. 147 (3d Cir. 2008) is another interesting case. Here, Judge Hardiman— who was educated in Catholic universities— upheld a ruling from an immigration judge who ordered removal of a petitioner who alleged a pattern of persecution of ethnic Chinese Catholics in Indonesia. If Judge Hardiman had any personal sympathies for this alien on shared religious beliefs, he nevertheless stuck to the law.

In employment cases, he is a standard issue conservative judge who tends to rule for employers; but in doing so, his rulings stick closely to the law and facts. In EEOC v. Allstate Insurance Co., 778 F.3d 444 (3d Cir. 2015), Judge Hardiman wrote the opinion and ruling that affirmed a district court dismissal of discrimination claims brought by a class 6,200 insurance agents. The plaintiffs claimed that All-State unlawfully converted their status from employment to independent contracting with a discriminatory and coercive waiver. He rejected these theories, stating: “It is hornbook law that employers can require terminated employees to release claims in exchange for benefits to which they would not otherwise be entitled.” Allstate had offered four different options to the plaintiffs. The decision is a mainstream ruling that pushed back against the EEOC’s more expansive theory of discrimination—but notably, the decision did not overturn precedent.

Introducing Dr. Abdulkader Dahhan, MD (Harlan, Kentucky)

My work takes me several times a year to the heart of Appalachia. It is Trump country. Harlan County, for example, voted 84.9% for the president. They likely share his nativist views.

When I visit Harlan, I am struck by this contrast: the population is almost entirely white; but many of their doctors have names that suggest that these professionals are aliens. 

Often, these doctors work here on an H-1B visa. It has stringent requirements—the gist is a professional degree at an accredited university overseas, plus a license in the U.S. to practice medicine. 

Only then is the doctor given permission to travel to the U.S. to be a doctor.

At that, the visa lasts only three years, though it can readily be extended another three years. Many of these doctors love America. They petition for “green card” status, a lengthy and expensive process.

Dr. Dahhan is an MD who lists his pulmonary practice online. I know nothing particular about Dr. Dahhan; but his name suggests the possibility that he is in America on a temporary work visa.
These H-1B visas, by the way, are very common-- and key to note, even with Trump's clarification, H-1B physicians cannot leave the U.S. and regain entry if they are from a nation on the list.

.....

Here is a review from a patient of Dr. Dahhan:

Jan 07, 2016

He is a hometown friendly doctor. He not only treats the patient, but also takes into account if they can afford the prescribed treatment and meds. He and his staff try to help, anyway they can. He is very blunt, but cares deeply. Very intelligent, hands down the smartest doctor around.

Who wouldn’t want Dr. Dahhan as their doctor? If he is from Iran, Iraq or one of five other Muslim nations in the ban, the answer is Donald Trump wants to bar his entry—and bar the entry of any family member of Dr. Dahhan’s in those Muslim nations.

The 84.9% of voters for Trump in Harlan, Kentucky are about to see their medical choices significantly constrained by this ill-considered, bigoted executive order.

The “Racial Storm in 1943”: The Case of Japanese Fishermen

Unlike today, when not a single person from the banned seven Muslim nations has harmed an American on U.S. soil, Japan unleashed a devastating attack on Pearl Harbor.

Many Americans had prejudicial views of Japanese for decades before the attack. The war intensified these feelings.

Japanese citizens and permanent residents were forced out of their homes and into detention camps. During their absence, California passed a law to bar all Japanese from obtaining a commercial fishing license. Bear in mind that commercial fishing was a leading occupation for the Japanese.

The law was amended because some lawmakers feared their ban would be overturned as a violation of the Constitution’s Equal Protection Clause. The discrimination was too obvious, they thought. The rewrite took out Japanese and substituted the term non-citizen. (Compare to today, where President Trump says his immigration ban is not anti-Muslim.)

Torao Takahashi, born in Japan, became a resident of California in 1907. Thirty-six years later—after living lawfully and peaceably in America as a legal, permanent resident (non-citizen), he lost his livelihood by this ban.

Once he sued, California offered the laughable defense that the ban was designed to conserve the fish in the Pacific Ocean to citizens, as though the Japanese were depleting fishing stocks.

The Supreme Court threw out the requirement of citizenship to fish for a living in California.

Here are brief excerpts (quoting):

The statute in question is but one more manifestation of the anti-Japanese fever which has been evident in California in varying degrees since the turn of the century. That fever, of course, is traceable to intolerance (and) unfounded accusations and innuendoes against Japanese fishing crews operating off the coast of California. These fishermen numbered about a thousand and most of them had long resided in that state. It was claimed that they were engaged not only in fishing but in espionage and other illicit activities on behalf of the Japanese Government.

More specifically, these accusations were used to secure the passage of discriminatory fishing legislation.… During the height of this racial storm in 1943, numerous anti-Japanese bills were considered by the California legislators. (The Court described how the law was changed from excluding Japanese to non-citizens)…

We should not blink at the fact that section 990, as now written, is a discriminatory piece of legislation having no relation whatever to any constitutionally cognizable interest of California. It was drawn against a background of racial and economic tension. It is directed in spirit and in effect solely against aliens of Japanese birth. It denies them commercial fishing rights not because they threaten the success of any conservation program, not because their fishing activities constitute a clear and present danger to the welfare of California or of the nation, but only because they are of Japanese stock, a stock which has had the misfortune to arouse antagonism among certain powerful interests. We need but unbutton the seemingly innocent words of section 990 to discover beneath them the very negation of all the ideals of the equal protection clause. No more is necessary to warrant a reversal of the judgment below.

Lessons from Our Chinese Exclusion Act

The U.S. is heading down a familiar path by banning entry from Muslim nations. In the 1870s, a growing tide of Americans turned against Chinese laborers. The Chinese were hated for taking American jobs—primarily gold mining and building a transcontinental railroad.
Like Americans today who won’t work in fruit and vegetable fields doing back-breaking work, most Americans in the 1870s wouldn’t work the jobs that the Chinese did (and did with vigor and gratitude). And they were hated for being so different-- different in language, appearance, diet, and customs.
So, in 1882, America passed a law that excluded ALL Chinese nationals. Like today, that meant that no one could enter from China—if they were on a boat that landed in San Francisco, for example, they were thrown in jail or kept in a brig on the ship until they boarded an outbound vessel. 
This exclusion included Chinese who were born in the U.S.-- people who were visiting China, often to find a wife or husband, before returning to the U.S. (Compare to yesterday when foreign nationals with "permanent legal status" were denied re-entry.)
For the Chinese who remained, they were required to register (see picture above).
That might be a next step for Muslims in America.
Interesting aside: Why do we see Chinese restaurants in so many small towns in America? The Chinese Exclusion Act also prohibited Chinese nationals from being employed. The concept here was to force Chinese to self-deport-- and many left.
However, if the Chinese owned a business, they were exempt. 
So, these industrious people opened two types of businesses all across America: restaurants and laundries. This spared them from deportation. And Americans supported these businesses, putting prejudice aside for a good meal and starched shirt.
Concluding Note: Who was the president who signed the Chinese Exclusion Act into law? He was very popular on that October date in 1882…. Chester Arthur.
How does history remember him? Far less than the people he victimized.
When did the Chinese Exclusion Act end? 1943, with passage of the Magnuson Act.

The law was promoted as the path to economic prosperity—but America suffered the Depression of 1893, a fact that we should remember as head down this path of exclusion.

Retire the Statue of Liberty: Trump’s Refugee Ban

President Trump’s executive order suspending entry to all refugees is a grave rejection of America’s commitment to liberty and sanctuary for the oppressed. 

How is a refugee defined? The U.S. State Department offers this explanation: “A refugee is someone who has fled from his or her home country and cannot return because he or she has a well-founded fear of persecution based on religion, race, nationality, political opinion or membership in a particular social group.”

Do refugees have legal status? Yes. There is a legal mechanism for making this judgment. By definition, refugees are not “illegals.”

How many refugees did the U.S. admit last year? In 2015, the last year for complete data, the total was 69,933. Compare that to the last year of President Bush’s administration: The total in 2008 was 60,091. Since 1975, the U.S. has admitted 3,252,493 refugees.

Is a refugee a citizen? No. There is a different legal process to adjust status to “citizen.”

Can a refugee vote? No.

Where do refugees come from? All over—not just Syria. In the 1990s, the U.S. admitted hundreds of thousands of refugees from the former-Soviet Union and Southeast Asia. With the implosion of Yugoslavia, the U.S. also admitted tens of thousands of refugees the Balkans— primarily Serbs, from Croatia and Bosnia who fled the genocide by the Croatian army. The refugee population shifted around 2000, when Africans fled various ongoing conflicts.

What does this change in policy mean? It means that our national identity has fundamentally changed from being a beacon of hope to the oppressed to an inward-looking, fearful nation. 

What we seem to fear, at the root of all this, is “otherness”—the refugee ban will apply far beyond the Syrian conflict, far beyond ISIS, and cover everyone (except Christians who are fleeing persecution— a group that certainly should be granted asylum, with others).

For statistics, see https://2009-2017.state.gov/j/prm/releases/statistics/251288.htm

The Music We Don’t Hear

A segment of Donald Trump’s support is deeply involved in White Power Music. Steve Bannon's prominence as a senior adviser suggests that this group is substantial in numbers.

To comprehend the deep connection between eugenic ideology and White Power Music, visit the website for National Socialist Punks (N.S.P.), Racial and Political Ideology, available in http://www.nazipunk.8k.com/ideology.html.

Their “Ideology” webpage (see above) is notable for extolling Hitler, Mussulini and other fascists.

I found two quotes apt for our times—both from Nazi leaders. I have emphasized the connections that seem to relate to the profound change we are witnessing—change that goes beyond reversing Obamacare and overhauling the tax code.

*********

"Revolutions are spiritual acts. They appear first in people, then in politics and the economy. New people form new structures. The transformation we want is first of all spiritual; that will necessarily change the way things are."

-Joseph Goebbels

"The universalists, the idealists, the Utopians all aim too high (now I understand why Michelle Obama’s speech missed the mark). They give promises of an unattainable paradise, and by doing so they deceive mankind. Whatever label they wear, whether they call themselves Christians, Communists, humanitarians, whether they are merely sincere but stupid or wire-pullers and cynics, they are all makers of slaves. I myself have always kept my eye fixed on a paradise which, in the nature of things, lies well within our reach."

-Adolf Hitler

Are You Into the “White Power Music Scene”?

Presidential advisor Steve Bannon said yesterday in the New York Times, “The elite media got it dead wrong, 100 percent dead wrong.” Bannon is on to something. Mainstream America doesn’t fully understand the wellsprings of hate and racial supremacy that helped Trump win.

My study on white identity groups in American workplaces has me learning the types of things that mainstream media doesn’t cover.

Here’s an example: There is a “White People Music (WPM) Scene.” It has been studied and reported in Robert Futrell, et al., “Understanding Music in Movements: The White Power Music Scene,” Sociological Quarterly (Vol 47), pp. 275-304 (2016).

Summarizing: The study analyzes how the Aryan music scene fosters a sense of purpose and belonging to people who practice racial exclusion. This study shows how participants develop strong feelings of dignity, pride, pleasure, love, kinship, and fellowship through WPM music events. WPM draws participants from the KKK, Christian Identity sects, neo-Nazis, and Aryan skinheads.

Now quoting:

Aryan music is one of the most pervasive means of racist expression among both veteran and newly recruited WPM activists across all branches. Many WPM gatherings include Aryan music produced by more than 100 U.S. white power bands and more than 200 bands in 22 countries.

Two of the most notorious white power organizations—The National Alliance and Hammerskin Nation—are closely tied to the two most prominent white power recording companies, Resistance Records and Free Your Mind Productions (formerly Panzerfaust Records). Their expressed goal is to create alternatives to mainstream music genres by producing music that articulates Aryan ideals and is linked to occasions and experiences in which the WPM is promoted.

There are many styles of white power music: rock, heavy metal, and country and western are the most common, but techno and Aryan folk genres are also emerging. While each genre claims specific stylistic distinctions, the lyrical themes in each reflect the fundamental doctrines common to most movement groups: Aryan nationalism, white power, race war, anti-Semitism, anti-immigration, anti-race-mixing, and white victimization. Examples of doctrinaire song titles and lyrics by two of the most popular white power bands include: Race and Nation by Skrewdriver  ….

(Lyrics)… I believe in the White race, A race apart, We've got a mile start, I believe in my country, It's where I belong, It's where I'll stay.
Chorus: For my race and nation, Race and nation, Race and nation, Race and nation. Hate Train Rolling by Bound for Glory, Bound for Glory. Hate Train Rolling.

Chorus: Hate Train Rolling on the rails of an insane world, Hate Train Rolling a non-stop collision undeterred, Hate Train Rolling leaving wreckage in our path, We're Bound for Glory, Hate Train Rolling, Built to forever last.

Tex-Tax: How Texas Consumers and Businesses Will Pay for Building the Wall

President Trump’s rash idea to slap a 20% tax on imports from Mexico will surely lead to a counter-tariff from Mexico. That’s how trade wars work.

The state with the largest exposure to a trade war with Mexico is, unsurprisingly, Texas. In 2012 (most recent figures I can find), Texas exported 26.4 billion dollars in goods and services to Mexico. That accounted for 35.4% of all U.S. export trade with Mexico. The number of jobs dependent on trade with Mexico— in Texas, alone— was 463,132 (again in 2012).

Texas is also the leading importer of Mexican goods. So, when President Trump announced this afternoon that he’d seek a 20% tax on Mexican goods, the Dallas News blared this headline to its readers:

Trump's 20 percent tax on Mexican imports would force U.S. consumers to pay for border wall

Here’s what this lead story says (quoting below):

WASHINGTON -- The White House floated the idea Thursday of imposing a 20 percent tax on Mexican imports, arguing that would be more than enough to pay for a controversial border wall.

Such a tariff on goods and services would be paid by U.S. consumers and businesses -- people buying anything from avocados and tequila to automobiles.

On its face, that doesn't appear to fulfill President Donald Trump's oft-repeated vow to force Mexico to pay for the barrier, which Mexican leaders have made clear they don't want and certainly won't agree to pay for.

Texas imported $84 billion from Mexico in 2015, suggesting that once the tariff was in place, Texas businesses and consumers would pay an extra $16.8 billion for the same goods and services.

The False God of “Tariff Prosperity”

Judge for yourself parallels between today and Herbert Hoover’s presidency.

Rejection of Globalism: In 1927, the League of Nations' World Economic Conference issued a report that was critical of protectionism in America and elsewhere. Its report stated that “the time has come to put an end to tariffs, and to move in the opposite direction.”

New Technology and Increased Productivity: In the 1920s, rural electrification sharply raised farm productivity (compare to internet applications and disruptions in businesses today). The over-supply of goods led to bad prices for producers in agricultural markets. Farmers were poor and angry.

Campaign Promise of Protectionism: In 1928, Herbert Hoover strongly appealed to Midwest farmers by promising to raise tariffs on agricultural products.

Proposed Law to Impose Tariffs on U.S. Trading Partners: Hoover won, and Republicans maintained comfortable majorities in the House and the Senate during 1928. Hoover then asked Congress for an increase of tariff rates for agricultural goods and a decrease of rates for industrial goods.

Two Republican leaders— Senator Reed Smoot and Representative Willis C. Hawley— proposed a law to raise U.S. tariffs on 20,000 imported goods. They wound up also imposing tariffs on factory-made goods, to the extreme dismay of Henry Ford and other captains of industry.

Experts' Warning against the Law: In May 1930, 1,028 economists signed a petition asking President Hoover to veto the Smoot-Hawley legislation, formally known as the Tariff Act of 1930. Congress and President Hoover ignored these experts.

Reaction to Smoot Hawley: Trading partners threatened to retaliate against the U.S. if the tariff law was enacted. America’s largest trading partner in 1930—Canada—retaliated by imposing new tariffs on 16 products that accounted altogether for around 30% of U.S. exports to Canada.

Canada developed close trade with the British Empire Economic Conference of 1932.

Effects of Tariff Law: By 1932, the U.S. was in a full-scale depression. Everyone was affected—but the impact was gravest for farmers and industrial workers. 
Sadly and ironically, these were the voters who demanded protectionism and got it.

Also in 1932, workers and farmers voted Sen. Smoot and Rep. Hawley out of office.

Toward a Biometric National ID?

Whether America gets there by fact or fancy, the surest way to secure voting against ID fraud is to use biometric data in a national registry. Technovelgy explains that “an iris scan also provides unique biometric data that is very difficult to duplicate and remains the same for a lifetime…. There are ways of encoding the iris scan biometric data in a way that it can be carried around securely in a 'barcode' format." See the picture (the technology converts your scan to a bar code but doesn't affect your eye).

Biometrics are already widely used (these include fingerprints, voice recognition, eye scans and other bio-markers). Examples include banking, university dorms, apartment buildings, workplaces, immigration fast lanes, personal computer security, convicts (probation) and prisoners (jails).

Jamaica uses finger scanning for voter registration.

For some readers, voter fraud might justify this type of national registration. But I disagree, and draw on Ken Sturlin’s law review study, “DNA Without Warrant: Decoding Privacy, Probable Cause and Personhood.” Sturlin concludes his detailed study by saying:

“When the state tinkers with human biology, it tinkers with privacy…. There is a matrix of biological and digital data that can all too easily be linked with a person, without a warrant or authentication….

Man's biological destiny encompasses the future of privacy and personhood. People are information containers with rights, data in being, and so society's expectations of privacy must grow alongside technological innovation and scientific discovery.”

I hope cooler heads prevail in thinking through the implications of dealing with “massive voter fraud.” We might be trading away personal freedoms and opening the gates to national monitoring of our personal movements once we “ID” ourselves. This much I assume: A technology to perfect against voter fraud, in the hands of government, will not stop at the voting booth. 

“President Trump”: My Deceased Mom Is Still Registered to Vote in Cook County … But No One Stole Her Identity to Vote

Until “President Trump” starts acting like a president, I will put his title and name in quotes. This message is directed at “President Trump’s” insane tweet this morning, "I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and ... even, those registered to vote who are dead (and many for a long time).”

To the best of my knowledge, I don’t think my Mom’s voter registration card has been pulled from Cook County records.

“President Trump,” do not dishonor my Mom’s memory by implicating her in massive voter fraud—to do so only magnifies the disgrace that you are. Finally, “President Trump,” just because my Mom is in this picture doesn’t mean that she is alive—nor does it mean I am lying or misleading anyone by posting her picture after she has passed.