26. July 2018 · Comments Off on The Unconstitutional Trump · Categories: Politics, Social/Culture · Tags: ,

Article 1 Section 9 of the U.S.Constitution has proved to be a law, contrary to the actions of the most recent Republican presidents.

For instance, George W Bush suspended the Writ of Habeas Corpus as applied to suspected terrorists picked up in various locations throughout the world. What does Article I, section 9 of the U.S. Constitution say about this?

Article I, Section 9 of the U.S. Constitution:
2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

So to remain “constitutional” the Bush Administration would have had to qualify the terrorist suspects as threats to public safety, which may have been an easy argument to make on the momentum of their “terrorists versus the world” narrative, but there was no clear recognition of any invasion or rebellion, which the Constitution makes very clear, is the context that matters.

But whether a president is constitutional or not seems to matter less to the Republican side of the increasing divide between Americans.

Today, we have another example as Trump continues to profit from his hotels, even encouraging foreign dignitaries to stay at his hotel in Washington DC. What does Article I, section 9 of the U.S. Constitution say about this?

Article I, Section 9 of the U.S. Constitution:

8: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

So for Trump to remain “constitutional”, Congress will need to provide consent for Trump to profit from the foreign dignitaries that stay in his hotel. Until this happens, Trump will be exposed to the charge of violating the Constitution and indeed it appears the State of Maryland and the District of Columbia are doing just that.

The Trump Administration has appealed to the courts with the assertion that the profits come from an exchange of services provided and therefore cannot be counted as a “present”, “Emolument”, “office” or “title”. But while the profits are clearly not a present, or an office or a title, the question remains as to whether they qualify as an emolument.

The Trump Administration has approached the courts with the assertion that “emolument” means “gift”. Of course that would suggest redundancy in the language of the Constitution since another word for “gift” is “present” which is already included in the clause. But let’s break out the dictionary…

An emolument is defined by Webster-Merriam as:

1. the returns arising from office or employment usually in the form of compensation or perquisites
2. archaic: advantage

The first definition is clearly not the equivalent of “gift” but rather a description of “returns”… which is another word for “profit”.

The second definition is as broad as they come… “advantage”. It can certainly be said that Trump gains economic advantage when foreign dignitaries choose to stay at his hotel… unless the hotel room and all it’s services are provided to such dignitaries free of charge and even then the question would remain, would Trump’s business gain advantages in the form of historic significance and/or reputation? Fortunately, we don’t have to split that hair because the foreign dignitaries did NOT get free service, the foreign states that sent their diplomats paid Trump’s business for services.

And just in case anyone gets pedantic about Merriam-Webster’s “archaic” qualifier, it must be understood that Article 1 of the U.S. Constitution WAS written over two centuries ago.

Indeed, In his opinion, Judge Peter Messitte of the US District Court of Maryland sided with Maryland and Washington, DC’s definition of emolument as an “advantage.”

We know by now that the Trump administration isn’t one to accept the opinions of others, so we shouldn’t be surprised if they appeal to a higher court but it would be a shock to Americans if the highest courts capitulate to what I’m just going to call a ridiculous notion that an emolument can only be defined as a gift.

One more thing to point out about this particular clause is the emphasis on breadth of meaning… If you look at the language, you will notice the repeated use of the word “ANY” and the phrase “ANY kind WHATEVER”. This is not the language of narrow specifics; this is the emphatic language of inclusion… “No advantages of ANY KIND!!!!”

This is further enforced by the very purpose of the clause… to prevent Presidents from being tempted with foreign provided motives which can arrive in many forms, hence the use of a broadly defined word like emolument.

Violating the Constitution worked out OK for Bush because no one stepped up to actually prosecute him; probably because doing so would have been be a political risk given how little the American people know about obscure legal terms cloaked in Latin and how consumed they were about the “threat of terrorism”.

In contrast, I don’t see how Trump’s violation can possibly be construed as a matter of public safety or anything other than a personal gain. Trump may have to rely on the cult-like obsessions of the rabid-right to come out of this one. As long as he continues to attack liberals he can score points with liberal-haters and so long as these liberal-haters come close to 25% of the American people, there is a gaming chance that Trump will stay on top… Maybe with a little help from the Russians.

27. May 2018 · Comments Off on Mandatory Arbitration and the Supreme Court Decision · Categories: Politics, Social/Culture · Tags: , ,

 

Some of you may have heard slight mutterings in the media regarding the recent Supreme Court decision that allows private companies to force their workers to sign mandatory arbitration agreements. It sounds pretty boring. Let me rephrase: The Supreme Court just gave private companies the power to treat their workers anyway way they want without any regard for federal, state or local laws.

The court decision was applied to three separate cases, all of which involved similar arguments where an employer violated state or federal labor laws. At least two of the cases involved an employers refusal to pay overtime as required by state laws. You would think this would be any easy one… If the law says they have to pay, they have to pay, right?

However, in all three cases, the employers simply refused to comply with these laws. OK, so this is where the employee takes the dispute to court, right?

Well in all three cases, the workers had signed arbitration agreements which according to the Federal Arbitration Act of 1925 means that the employees have to duke it out with their employers in private arbitration. That basically means the employee and the employer sit down to work out a “deal”. Of course the employer always has the leverage, like… “do you want to keep your job?”. Without the protection of the law, they really don’t have any other leverage.

In 1935 this had become such a pressing problem that Congress enacted the National Labor Relations Act, which provided the worker with the right to collectively arbitrate. In other words, in answer to that question about keeping a job the worker can now say, “do you want to keep producing?” Collective arbitration is what made the U.S. such a great place to work. You didn’t even need government regulation because entire crews can bargain with their employers on an equal footing.

But in recent years, some companies have started adding a clause to their arbitration agreements saying that workers can only arbitrate as individuals, not collectively. But isn’t that a violation of the National Labor Relations Act? Why, yes it is but underpaying workers is also a violation of law so why would this be any different? The challenge is finding a way to enforce the laws and to do that you have to take it to court, but wait… they CAN’T take it to court because of the arbitration agreement.

So in 2018, the four liberal members of the Supreme Court, while judging appeals, tried to make the case that the provision in the National Labor Relations Act to allow collective arbitration supersedes FAA’s command to enforce arbitration agreements. This was essentially the only path back to any kind of leverage a worker might have.

But the majority opinion, led by Neil Gorsuch, stated that the NLRA only provided the right to collectively bargain, not to supersede the FAA. The contention is that this interpretation is too literal, which does make sense… Think about it, Congress in 1935 obviously didn’t take in to consideration the possibility that a company would simply write a clause in their arbitration agreements that puts them beyond the reach of very law they were enacting.

Nevertheless, all three cases were decided on a soft argument that because 77 years passed from the enactment of the NLRA to the first case where it was used to challenge the FAA, the legitimacy of the challenge is “doubtful”. The conservatives took the “when in doubt go with what is clear” option, saying that the FAA clearly forces arbitration, with no option to appeal. Then they took a quick lean on the “don’t legislate from the bench” argument, even admitting that while the decision may not result in the best policy, a different decision would require a different law.

So from a technical stand point, I can understand the decision but from a moral stand point it’s pretty disappointing, especially given how “arguable” the decision is and how significant the impact will be.