THE “PERSUADER RULES” AND THE TRIUMPH OF “THE ADMINISTRATIVE STATE”

I’ve been practicing law for 30 years and I had never heard of the “Persuader Rules.” Now that I know what they are, I find them breathtaking.

In the late 1950s, organized crime had infiltrated the labor movement. In order to combat organized crime, in 1959 Congress passed the Labor Management Reporting and Disclosure Act (LMRDA). The Act required those unions and companies which were influenced by outside organizations to file reports with the Department of Labor listing who these “persuaders” were and how much they are paid. The law applied to both labor unions and companies—and not just union companies, but also companies which were not unionized, as long as they were “persuading” people, or giving advice on labor-management issues.

For over 50 years, until 2012, the law remained a backwater, creating few problems because it addressed a problem which no longer existed. No one asserted that organized labor is substantially controlled by organized crime anymore. Enter the Obama Administration.

In 2011 the Obama Administration saw an opportunity to promote union membership in every company in the United States—even small companies, companies in Right-to-Work states, and companies with stellar employee-management relations—and it would do so by amending NOT the LMRDA, which can only be amended by Congress, but instead by changing the REGULATIONS which interpret the LMRDA which can be changed by the Department of Labor through a process known as “rulemaking.”

So, the Obama Administration has proposed new “REGULATIONS” which will effectively requires every big and small company in the United States to files forms, known as LM-20s, every time it writes or amends an employee handbook with the help of an outside adviser, like a lawyer.

The cost to employers? Billions. Literally billions of dollars. Not only that, the statute include criminal penalties, so employers big and small will now need to hire lawyers to tell them when they need to file reports.

You may have heard the term “The Administrative State.” The phrase was first coined by the United States Supreme Court and what it means is that administrative agencies can now re-write laws passed by Congress by simply re-interpreting them. Their re-interpretations are entitled to a high level of “deference” by Courts because the “agencies are the experts” on what they need to regulate an industry. Here is a good example of the Administrative State at work.

Want to see what the law was as Congress passed it? Here it is:

(b) Persuasive activities relating to the right to organize and bargain collectively; supplying information of activities in connection with labor disputes; filing and contents of report of agreement or arrangement

Every person who pursuant to any agreement or arrangement with an employer undertakes activities where an object thereof is, directly or indirectly—

(1) to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing; or
(2) to supply an employer with information concerning the activities of employees or a labor organization in connection with a labor dispute involving such employer, except information for use solely in conjunction with an administrative or arbitral proceeding or a criminal or civil judicial proceeding;

shall file within thirty days after entering into such agreement or arrangement a report with the Secretary, signed by its president and treasurer or corresponding principal officers, containing the name under which such person is engaged in doing business and the address of its principal office, and a detailed statement of the terms and conditions of such agreement or arrangement.

Every such person shall file annually, with respect to each fiscal year during which payments were made as a result of such an agreement or arrangement, a report with the Secretary, signed by its president and treasurer or corresponding principal officers, containing a statement

(A) of its receipts of any kind from employers on account of labor relations advice or services, designating the sources thereof, and
(B) of its disbursements of any kind, in connection with such services and the purposes thereof. In each such case such information shall be set forth in such categories as the Secretary may prescribe.

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The Mentality of Crowds

Wired Magazine recently published an article which explains how and why animals swarm. To me, it was fascinating.

We’ve all seen flocks of cedar waxwings or blackbirds flying in unison, each equidistant from other, yet all moving at 40, 50, or even 60 miles per hour. If we haven’t seen it ourselves, we’ve at least seen films of schools of fish swimming in unison, seemingly without either leaders or followers. Finally, we’ve all wondered about political movements, whether it be in Germany under the National Socialists (N-S or “Nazis”), Russia, China, Cambodia or others under the banner of communism, or the United States under the banner of Homeland Security. Why do people and other animals swarm?

The ability to swarm is anathema to the independent American spirit which once existed, but which now appears to be fading. It appears to have a few common elements:

1. Proximity. Animals have to be placed in close proximity to one another in order to engage in swarming. Animals in close proximity, such as in cities, will swarm with great ease. Animals who are more spread out, such as in rural areas, become more independent, and are less likely to become “swarmers.” Suburbanites swarm for part of their days, in traffic for example, but become independent when they reach their homes and are separated from others.

2. Intolerance for non-conformity. Among locusts, those who do not conform to the movements of the swarm are bitten by those around them, until they either conform, or are devoured. The remaining crowd members are those who conformed to the “collective will” of the swarm. Those who didn’t conform became food for those who did.

3. Darkness. Fish swarm by avoiding light. The closer they stay, enveloped by the fish around them, the less light they are exposed to and the more they are able to move as a group. If they see light, it means they are separating from the swarm. Turning toward the darkness keeps them together.

So there it is: proximity, intolerance, conformity, and darkness—those are the factors which cause animals to swarm and move as unthinking masses. Interesting, eh?

If you’d like to read more, go to: http://www.wired.com/wiredscience/2013/03/powers-of-swarms/all/

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Could President Obama Postpone the Election?

Most polls show that President Obama will lose the election without Ohio, Pennsylvania, and a number of other states which have been affected by Tropical Storm Sandy. In those states, thousands of people are without electrical power, early voting is scheduled to take place, and this may keep voter turnout low, which is said to disadvantage the President. Assume that in the Obama campaign they are currently strategizing about the questions “Can the President postpone the election throughout the nation because of Tropical Storm Sandy?” While postponing the election would be a subversion of the Constitution, the answer to the question is MAYBE. Why do I say that? Read on.

Analysis of the Constitution

Article II of the United States Constitution states that:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors……The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The first question I have is one of construction: Do the words “which Day shall be the same throughout the United States” modify the phrase “the Day on which they [the Electors] shall give their Votes” or both that phrase and the phrase “the Time of chusing the Electors?” If the former interpretation is correct, then election day does not need to be on Tuesday, November 6th, only the date that the electoral colleges meet needs to be on the same day throughout the United States.

The Electoral College meets in each State on December 17, 2012. Consequently, according to the Constitution, it is only the date when the Electoral College meets that must be the same throughout the United States, not the date when the electors are chosen, and election day can be changed to any date before that date.

Analysis of the Acts of Congress

The second question I have is “What has Congress decided?”

The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.

However, there is a loophole:

Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.

In other words, state legislatures can change the date of the election. Would they do so?

In Both Ohio and Pennsylvania, the House and Senate are controlled by Republicans, so we can assume that they wouldn’t seek to change the date of the election. That avenue being cut off, what might the Obama Campaign try next?

Putting Myself in the Shoes of the Obama Campaign

If I were on the Obama campaign team, and I felt certain that he would lose if the election were held next Tuesday, here is how I would analyze the question:

Question: Does the President have any express or implied constitutional powers, or powers which have been delegated by Congress, which would enable him to postpone the elections?

Answer: The express powers of the President are set out in Article II, Sections 2 and 3 of the U.S. Constitution. They include the power to:

Act as “Commander in Chief of the Army and Navy of the United States”
and to “shall take Care that the Laws be faithfully executed.”

It is this last power which gives me pause. “The Laws” include any law passed by Congress. If I were searching for a law passed by Congress that might authorize him to suspend elections, it would be the Voting Rights Act.

A Voting Rights Act Scheme

Section 2 [42 U.S.C. Section 1973(a)] of that Act provides that:

No voting….standard, practice, or procedure shall be imposed…in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color….

So what is a voting standard, practice or procedure? Early voting clearly qualifies as a “voting procedure.” Studies have shown that African-American voters rely more heavily on early voting than do white voters. Why is that so? Because African American voters are more likely to be concentrated in ethnic churches, union halls, and nursing homes. Take “Souls to the Polls” as an example.

In Souls to the Polls, African-American voters are taken by bus on Sunday after church to early voting locations. While in theory this is a non-coercive way to get people to vote, in practice, church pastors both encourage their church members to vote, and to vote the “right way.” Many African American leaders, and United States Senators like Senator Bill Nelson, credit Souls to the Polls with the increased elections of Democrats to office.

So, the Obama Campaign could file a lawsuit under Section 2 of the Voting Right Act alleging that proceeding with early voting while the power is out violates the Act, and that the Courts must step in and postpone the election. Could it work? Who knows. One compliant federal judge, likely an Obama appointee, could shut down Tuesday’s election.

If he Ignores the Law, and the Constitution, Who has Standing to Object?

Article III of the Constitution gives the Courts jurisdiction to hear “cases and controversies” but the law is rather clear that if a citizen has a generalized grievance, which is the same as that suffered by every other voter, then the voter has no standing. If a voter has not been denied the right to vote, then it could be said that no one has standing to challenge a Presidential decision to suspend elections until a later date.

Do you feel weak and impotent? You should.

Government by Inertia, Indifference, or Acquiescence

Finally, what if President Obama acted without going to Court? Who could stop him? The famous Jackson Concurrence in Youngstown Sheet and Tube v Sawyer, 343 U.S. 579 (1952) says that the President can do whatever he pleases, only that his power to do so waxes and wanes with the amount of statutory or constitutional authority he has:

1. When the President acts with express or implied powers which have been delegated by Congress, the President’s action are entitled to strongest presumption and widest latitude that courts can afford.
2. When the President acts in absence of congressional grant or denial of authority, there is a zone of twilight. President and Congress may have concurrent authority. The extent of the President’s authority will depend on congressional inertia, indifference, or acquiescence.
3. When President acts in a way incompatible with express or implied powers, he can only rely upon President’s constitutional powers minus Congress’ constitutional powers.

Note what the “Jackson Concurrence” doesn’t say. It doesn’t say that anyone has standing to challenge the President, and it doesn’t says that the President’s actions are ever unconstitutional. It merely says that “ he can only rely upon President’s constitutional powers minus Congress’ constitutional powers.” That’s a pretty weak prohibition against unconstitutional actions.

Citizens May Feel Weak and Powerless

I wish I could be more positive, but the fact is that we as citizens are weak and powerless—far from what our Founders intended. We’ve been emasculated by the Courts and by a weak and ineffective Congress. If President Obama decides to flex his muscles and change the date of the election, there is likely little that we can do about it.

My Conclusions:

1. The President could change the date of the election in any state in which he could convince the state legislature to change the date to any date before December 16, 2012.

2. The President could get the date changed by filing a suit under the Voting Right Act and asserting that early voting in states with no electrical power violates the right of African Americans to vote.  If a federal court agreed with him,  the election could be postponed.

3. The President could simply usurp the power to change the date of the election, and wait to see if the Courts would try and stop him.

See: http://www.fas.org/sgp/crs/RL32623.pdf

Posted in Absentee Voting, Federalism | Tagged , , , , , | 3 Comments

Why I am Voting Against Senator Bill Nelson

In maritime law the term “navigable waters” has a very clear and concise definition. Navigable waters are those waters which are capable of being used as highways of interstate and foreign commerce. That definition fits the Constitutional understanding that Congress has authority to pass laws which regulate commerce between the states and with foreign nations.

In 1934 that limit on Congressional power was deleted from the Constitution by the Supreme Court when it said that Congress could tell a farmer how much wheat he could grow on his own land for his own use. However, the words “navigable waters” haven’t changed since the Constitution was adopted in 1790. What has changed is their meaning. That change, and how it happened, explains why I will vote against Senator Bill Nelson on Election Day.

Nelson isn’t personally responsible for the change in the definition. Nelson is responsible for abdicating his responsibility as a Senator and permitting the Army Corps of Engineers and the EPA to redefine “navigable waters” to mean land that is capable of supporting aquatic plants. Today there are navigable waters in my backyard and technically, if the law were enforced to its full extent, I would need a permit from the Army Corps of Engineers to mow my lawn. Why? Because a small patch of the backyard of my San Marco home qualifies as wetlands.

I’m not against preservation of wetlands, nor am I anti-environment. I breathe the air, drink the water, and eat wholesome foods like everyone else. What I am against is tyranny, and a government where Congress abdicates its important responsibilities to administrative agencies to define terms like “navigable waters” is on the road to becoming a tyranny.

Nelson’s roll in promoting tyranny is as a facilitator. Bills have been introduced in Congress to require Congress to establish a definition for the terms “wetlands” or “navigable waters” but Nelson is known to be a firm opponent of those laws. He has taken $43,289 in contributions from lobbyists who don’t want the term “navigable waters” to be defined by Congress and who prefer that the Army Corps of Engineers and the EPA set the limits of their own jurisdiction. People have gone to jail, lost their homes, their retirements, and the entire livelihood as a result of Congress’ failure to address this issue.

Consequently, I’ll vote against Bill Nelson on Election Day. Even if I can’t vote him out of office, I can at least try to encourage him to do his job as a Senator. If he wants to take away people’s lives by redefining the word “navigable waters” to mean “land that the government wants to take” he should at least have the forthrightness to vote for it.

If you want to know more, check out a book entitled Government Bullies. It may bring you to tears with its tales of abuses by the FDA, the TSA, the EPA, and the ACOE. If hope it does. Perhaps you will be moved to take some action.

Posted in Conservatism, Federalism | 2 Comments

THE INDIVIDUAL MANDATE IS A TAX ON THE POOR

Under Obamacare, the Individual Mandate will be Deducted from Your Refund

QUESTIONS COMMONLY ASKED ABOUT THE INDIVIDUAL MANDATE

What did the Supreme Court Decide about Obamacare?

The Supreme Court decided that because the “individual mandate” can be avoided by paying a tax penalty, called a “shared responsibility payment,”  it is constitutional.

How much is the penalty (single adult)?

The penalty is $250 for every $10,000 you make.  If you work full time at minimum wage your annual income is $15,080 and your penalty will be $375.  If you make $20,000 a year, the penalty will be $500; $30,000–$750; $40,000—$1000; and $50,000–$1250.

Who pays the Penalty?

Individuals who don’t have health insurance will pay it.

Who collects the Penalty?

The IRS.

I simply won’t pay the penalty.  What’s the IRS going to do about it?

Most average Americans file tax returns in order to collect their tax refund, which arrives every year in February or March.  Unfortunately, since average Americans usually have no savings, they use their tax refunds to purchase used cars, washing machines and dryers, new refrigerators,  or to make other big-ticket purchases that they can’t otherwise afford.   The IRS will withhold tax refunds from people who don’t buy insurance, and hence poor people will be unable to make these purchases.

What if I don’t get a refund, or the refund it too small to pay the penalty?

If you work “on the books” and you don’t file a tax return, or don’t have enough of a refund to pay the penalty, the IRS will send your employer a notice requiring them to withhold more taxes from your paycheck.  You will, in effect, get a pay cut.

What if I work “off the books” and simply Don’t File a Tax Return, or I don’t have a Refund Coming?

If you work “off the books” or as an “independent contractor” the IRS will send your customers a  “Notice of Back-up Withholding.  That means that your customers will have to withhold more taxes from your paycheck, and your weekly take-home pay will go down.  In effect, you are getting a pay cut.  Back-up withholding rates are 28%, so your customers will have to withhold 28% of what they owe you.

I work doing yard maintenance, housecleaning, or home repairs on the side.  People pay me in cash.  How will the IRS ever catch me?

At some point you will apply for Social Security.  When you do, before you get your first check you will be asked to list all the people you worked for, and then the IRS will likely go after them to collect past due taxes, including penalties for not having health insurance. Once this gets out,  many people may decide they can’t afford to hire you anymore, and your work is liable to dry up.

If I pay the penalty, do I get free health care from the government (Medicaid)?

No.  Paying the penalty has no effect on whether or not  you qualify for Medicaid. If you don’t currently have Medicaid, you won’t get it just because you pay the penalty.

I have health insurance at work.  Do I pay the penalty?

No.  If you have medical insurance at work,  there is no penalty.

I don’t have health insurance.  Should I buy it?

The Act is designed to encourage you to buy health insurance, but if you don’t, the penalty will be between $750 and $1500 for most people.

How much does health insurance cost?

For a single adult, health insurance costs $4200 to $4800 per year.

Is it better for a single adult without insurance to pay the penalty or buy medical insurance?

The penalty amounts to 2.5% of income.  Therefore, if your income is more than $132,000 per year, you should definitely buy health insurance.  If your income is less than $132,000 per year, then the cost of the penalty will be less than the cost of the insurance.

Why do you say the Individual Mandate is a Tax on the Poor?

If the individual mandate had been passed by the a Republican House of Representatives and Senate, and signed into law by a Republican President, it would have been condemned by both the Democrat Party and the news media as a gigantic tax on the poor of America.   You would have heard cries that it was “the most regressive tax ever enacted in the United States” and that “Republicans passed the tax because they hate poor people.”

The fact is that Republicans could never have enacted the individual mandate—the public outcry would have been too great.  It could only have been enacted by Democrats.  That’s because most people misunderstand the individual mandate and how it works.

This doesn’t sound like a tax at all.  It sounds like a regulation.  Is it?

What the Supreme Court decided is that taxes may be designed by Congress to influence or regulate conduct.  Justice Roberts, along with Justices Breyer, Kagan, Sotomayor, and Ginsburg, found the individual mandate to be constitutional because it was a tax on the American people, and because the Constitution gives Congress the right to levy taxes and spend the money to “provide for the general welfare.”   While the words “general welfare” originally had some meaning, today they are without any real meaning.

Historically taxes were supposed to be used to generate revenue for the federal government.  However, as the original intent of the Constitution has eroded away the Supreme Court has decided that taxes no longer need to be revenue-producing devices.  They are constitutional even if they are only intended to influence people’s conduct.  The individual mandate is therefore designed to influence people’s conduct or regulate how they decide to spend their money.

Won’t Mitt Romney repeal Obamacare if he is elected?

The Affordable Care Act was passed by Democrat majorities in both houses of Congress and signed into law by President Obama.  Therefore the only way to repeal it is for both houses of Congress to vote to repeal it, and for a new President sign the law.  This is known as the constitutional principle of bicameralism and presentment.  The only way that can happen is if the Senate switches from Democrat to Republican, and Mitt Romney is elected President.  Otherwise, Mitt Romney will be powerless to repeal Obamacare.

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