Here, and related Cato post. While the speech had little policy and less law in it, it did have some themes of national unity and dynamism I appreciated. I also mention in passing such topics as state right-to-work laws, social media polarization, and redistricting reform.
Jay Clayton of Sullivan & Cromwell, president-elect Donald Trump’s choice to head the Securities and Exchange Commission, has not taken a high-profile role in policy debates but according to MarketWatch was involved in preparing a 2011 report for the New York City Bar critical of enforcement of the Foreign Corrupt Practices Act (FCPA). That’s a point in his favor, I argue at Cato, since the case against zealous FCPA enforcement is well established. Related earlier, and Texas Public Policy Foundation 2014. More: Andrew Ramonas, BNA Bloomberg.
Some on the left are still blasting judges as activist for standing up to Obama administration assertions of executive power in the regulatory sphere. That might prove shortsighted considering what’s on the agenda for the next four years, or so I argue in a piece in Sunday’s Providence Journal.
I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees (earlier). In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.
The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants; more on that from Daniel Fisher, the ABA Journal, and earlier.
After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:
Judges rule all the time against the partisan side that appointed them.
And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.
We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.
Here’s a letter to the editor I sent to the Washington Post that they didn’t publish, responding to a piece by their business columnist Steven Pearlstein.
To the editor:
Steven Pearlstein (Dec. 2) writes with apparent approval of the prospect that President Trump will “make an example of a runaway company by sending in the tax auditors or the OSHA inspectors or cancelling a big government contract. It won’t matter that, two years later, these highly publicized retaliations are thrown out by a federal judge somewhere. Most companies …will find a way to conform to the new norm.”
I was reminded of Paul Farhi’s revealing story in the Post last March about Donald Trump’s prolonged, losing libel suit against reporter Timothy O’Brien. Per that report, Trump “said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
The knowing use of a flimsy legal case to retaliate or intimidate, to inflict punishments or extract concessions a judge would never have ordered, is no more excusable when aimed at other sorts of businesses and professionals than when aimed at the press and reporters. In both cases it is wrong, it sets a bullying example to others, and it endangers the impartial rule of law.
(cross-posted from Cato at Liberty)
Given the complex ongoing dealings between the Trump Organization and foreign governments, the Emoluments Clause of the Constitution will require Congress to “decide what it is willing to live with in the way of Trump conflicts” — and it should draw those lines before the fact, not after. That’s what I argue in a new Philadelphia Inquirer piece. Excerpt:
…Trump points out that the president is exempt from the conflict-of-interest laws that bind Congress and the judiciary, but that doesn’t mean he will escape scrutiny from public opinion or from the body of federal law as a whole, including the Emoluments Clause.
That clause reads in relevant part: “And no Person holding any Office of Profit or Trust under [the United States] , 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.”…
The wording of the clause itself points one way to resolution: Congress can give consent, as it did in the early years of the Republic to presents received by Ben Franklin and John Jay. …
…it can’t be good for America to generate a series of possible impeachable offenses from a running stream of controversies about whether arm’s-length prices were charged in transactions petty or grand. …
There is no doubt that doing the right thing poses genuine difficulties for Trump not faced by other recent presidents. If he signals that he understands the nature of the problem, it would not be unreasonable to ask for extra time to solve it.
For more detail, Randall Eliason has a helpful explainer, e.g. on why Emoluments Clause issues do not map well onto the concept of “bribery.” (Bribery is subject to a separate ban, while both presents and some other payments can violate the Emoluments Clause even if given and received with the purest of motives.)
Update: With Trump’s announcement this morning that he intends to step back from management involvement with the Trump Organization, I’ve adapted this post into a longer piece at Cato at Liberty on what comes next. I quote Prof. Bainbridge, who’s got a second round of observations here.
Yet more: memos shed light on how the Department of Justice has construed the obligations of the Emoluments Clause over many decades. And the Washington Examiner, which recently welcomed Tim Carney as new opinion editor, suggests an “occluded trust.”
Of reasons to worry about the Donald Trump administration, so far as I can see, anti-gay policies aren’t in the top 25. Or so I argue in an opinion piece in today’s New York Post. It was written before, but includes an updating reference to, the airing of a “60 Minutes” interview last night in which Trump said, of the Supreme Court’s marriage cases, “They’ve been settled, and I’m fine with that.”
The Baltimore Sun ran an editorial that began with the line “Rich people threaten lawsuits. It’s what they do.” That isn’t really right, though, I point out in a letter to the editor: “In fact, whether they enter politics or not, most wealthy persons do not share Mr. Trump’s habit of using lawsuits as a tactical weapon (and many who do pursue litigation overzealously are not rich).” Read the whole thing here.
Yesterday, in a major ruling, the D.C. Circuit Court of Appeals rebuked the IRS over its targeting of conservative groups and said that it would have to face a lawsuit by two plaintiffs, reversing a lower court that had declared the dispute moot. The unanimous three-judge panel ruled that there is “little factual dispute” in the case and it is “plain…that the IRS cannot defend its discriminatory conduct on the merits,” that the wrongdoing included not only targeting itself but massively burdensome and intrusive examinations of targeted groups, and that despite the IRS’s claims to have ended the discriminatory treatment, there is evidence that it continues today. My new piece at Ricochet explains.
Sarah Westwood in the Washington Examiner also quotes me on the case: “This is a blistering rebuke to the IRS and its defenders.” Remember in June when the Washington Post ran an editorial dismissing this all as not much of a scandal? Here was my response then.
P.S. Kim Strassel passes the following along in her much-talked-about new book, The Intimidation Game: “So, yes, the president was saying—two months after the news broke—that the whole IRS thing was just a ‘phony scandal.’”
A good bit of creativity has gone into the faking of accidents and injuries, from NYC injury king Morris Eisen’s special ruler for photographing the size of potholes (calibrated fictitiously so as to exaggerate their size) to the Philadelphia auto guys who “went as far as to have employees gather and store deer blood, hair and carcasses in the shop’s garage to be used as props in photos that were later submitted with insurance claims.” And some are more audacious than creative, as when a California woman got in trouble after allegedly sending “faked treatment documents and burn photos from a hospital website” to bolster a hot coffee spill claim against McDonald’s.
An entertaining and informative treatment of this subject is Ken Dornstein’s 1996 Accidentally on Purpose: The Making of a Personal Injury Underworld in America, about which I wrote this review at the time. Excerpt from my review:
In Illinois, runners took over the Community Hospital of Evanston, dispensing with doctors’ supervision and discouraging “real” nurses from applying. (“You’re going to be so bored here. There is nothing to do.”) The driver of the courtesy van whisking clients from law offices told why he liked the job: “No one is really hurt” so “no one gets sick on me”.
True-crime books usually aim to show how the dirty deed is done, and this one does not disappoint:
How do I get started? For a “paper” accident, try inflicting “controlled damage” on a couple of cars with a sledgehammer in a dark parking lot. Insert passengers. Summon a witness. Gather broken glass in bags for re-use.
That was easy, what next? “Staged” accidents: Buy rustbuckets, insure one and run it into another one full of recruited claimants-to-be (“cows”). If you’re nice, give them pillows.
I need symptoms! “OK, you can take tingles, and you can take hips or your shoulder,” said one coach to his aspiring victims. “But don’t go saying the exact same things.” And be glad you aren’t being sent to one of the House of Pain operations that massage would-be claimants with sandpaper and jagged can lids or flog them with apple-filled sacks. Let alone “Nub City”, the Florida town that, in the 1970s, could boast that something like 10% of its population had practiced self-amputation for insurance, typically popping a left hand with a hunting rifle.
Vernon, Florida, subject of a famous documentary by Errol Morris, is the subject of coverage here (“By the end of the ’50s, the Florida Panhandle was responsible for two-thirds of all loss-of-limb accident claims in the United States.”) and here.