Tuesday, May 31, 2016

Why Not Let The 'Steph Currys' and 'LeBron James' of American Business Do Their Thing?

Or the brute power and finesse
of LeBron James?
Do you prefer the sweet jump shot
of Steph Curry?
Sometimes you can boil down complex political philosophy to its bare essentials by comparing it to something we can all understand: rooting for our favorite college or professional athletic teams.

We can fight all we want about liberal versus conservative philosophy; HB2 vs. not HB2; more government spending versus less government spending.

The one thing we can all agree on is that if you love the Tar Heels, the Packers, the Yankees or the Blue Devils, it doesn't matter if you believe in Karl Marx or the Marx Brothers when it comes to wanting YOUR team to win at all costs.

Period. Championships matter to every fan or else we would just be handing out 'Participation Trophies' at the Super Bowl every year.

What is so interesting about watching the fervor of any die-hard fan is that when it comes to winning, we ALL want OUR team to win every single time our favorite team takes the court or field or pitch. Regardless of whether we are liberal or conservative or neither.

You never hear die-hard fans in any sport say they 'feel sorry' for competitors that do not win very often. In an ideal world, the Tar Heels, Packers, Yankees or Blue Devils would recruit the very best players every year (they do); they would pay their coach outrageous sums of money to stay with their team (they do) and their university or sports franchise would spend the equivalent of a small nation's GDP to build the most modern and up-to-date facilities to keep their athletes and fans completely happy all the time (it never ends).

And they would win all the time; every year, every decade. We would be ok with that simply because we are fans and we all love winners, yes?

We got to wondering: What if pure 100% progressive or socialist thought and principle taken to its extreme prevailed in the world of sports, what would it look like?

#1. Every athlete would be paid the same regardless of their output or contribution to the team. Steph Curry and LeBron James would be paid the same as the guy down the bench who barely played in any game during the year.

#2. Stars such as Steph Curry and LeBron James would be told by their coach:
'You have GOT to stop shooting so many times! You have to pass the ball more and let the others handle the ball just as much as you do each game. We are keeping stats, you know, and every player has to handle the ball the exact same amount of time as you do every game! Or else!'
#3. Every team would be allowed to 'win' (sic) the championship one time before winning again depending on the number of teams in their league and sport. The Warriors would not be allowed to win the NBA title again this year simply because 'they won it last year'. They would have to wait another 29 years to win another title after every other team, no matter how terrible they were, like this year's Philadelphia 76ers, had their turn to hoist the trophy. The Cleveland Cavaliers would win this year's NBA title simply because they had never won it before.

That is what total and complete 'fairness' would look like in the world of sports, right?

Doesn't that just seem totally ridiculous on the face of it? It might be more 'fair' but the competitive aspect of American sports would be completely removed from each sport.  Most people would simply stop watching. If your team is terrible and hasn't recruited well or has a terrible coach and plays in a terrible facility, you will find better things to do with your time and energy pretty darned quickly, won't you?

Cheering on phenoms such as Steph Curry or LeBron James as they strive for perfection on the drive to the championship is about as American as it gets, doesn't it?

American athletics, professional and collegiate, are perhaps the most visible democratic and merit-based example of American freedom and hard work ethic we all can see in America today. You have innate talent; you work hard, you try and fail and try again and ultimately, you may have the chance to succeed beyond your wildest dreams.

American athletes such as Michael Jordan, Magic Johnson and LeBron James are now as wealthy as any of the robber barons of the railroad trust world of the early 20th century. And yet, hardly anyone begrudges their success and tremendous accumulation of personal wealth. No one ever complains about top professional athletes making 'more than their fair share!' or equating them to some corporate executive as the 'mean, old bad guys!' in America today.

Why is that, you may ask?

'Because they are helping MY team win championships, that's why! And I don't care what it costs the owner or the city that floated the bonds to build the stadium or the state to build infrastructure to get to and from the stadium. I want my team to win championships! Case closed!'

Translating this example to the American economy then, why would anyone want to put government shackles on the 'Michael Jordans' and 'Steph Currys' and 'LeBron James' of our business world?

Don't we want, and don't we need, American entrepreneurs, business people and venture investors to invest in new ideas so they can make a huge profit and thereby in the process, hire hundreds of thousands of people along the way?

Why not elect people who understand the business world completely and will work to unleash the private sector 'Steph Currys' and 'LeBron James' so they can do what they do best?

What these talented people do 'best' is create a lot of businesses, hire a lot of people and make a lot of money for everyone along the way, even though they will get the lion's share of that new-found wealth JUST LIKE Steph Curry will on his next contract with the Warriors and LeBron James already has with the Cavaliers and Miami Heat and, most importantly, Nike.

Don't Steph Curry and LeBron James take the rest of their teammates and coaches and fans along with them to the NBA Finals where one set of fan base is going to win the championship along with their favorite team? Don't successful business people take their employees and shareholders along the way with them in a very similar manner to higher levels of wealth and income?

Ralph Ketner, founder of Food Lion headquartered in Salisbury, NC passed away this weekend. Some people think he may have helped create more multi-millionaires in North Carolina over the past 59 years of Food Lion's existence than any other company simply due to his leadership, vision and generous use of stock options for employees all the way down to the janitor who cleaned up the floor of the very first Food Lion store who became a millionaire later.

Wasn't Ralph Ketner one of the 'Steph Currys' or 'LeBron James' of the business world who led his team to overall victory, success and championships?

That is what we have been missing in America not only for the duration of the Obama Presidency but really for much of the Bush 43 Presidency as well: a full and fair and honest appreciation for the immensely important role leaders in business have in making America what it was previously.

We feel truly sorry for the millions of young people who have entered the workforce and age of maturity since 2000. Mainly because none of you have had to the chance to experience what a real economic expansion in America actually looks and feels like. The desultory 1.76% annual GDP growth rate under President Obama since 2009 was only slightly surpassed by the roughly 2.5% annual growth rate under the Bush 43 years from 2001-2009

Once young people get over flirting with the fantasy that the government is there to give you what you want and see that the policies put forth by President Obama and Bernie Sanders and Hillary Clinton just have not worked to produce the economic growth you all deserve, you may see such an explosive expansion occur in your lifetime sooner rather than later.

You will think the rapidly expanding American economy looks like one of Steph Curry's beautiful, high-arching long range 3-point shots that seem to just nestle into the net like an egg where it belongs. Beautiful to behold.

Aside from the beauty of it, you will financially benefit from it far more than you ever will under the progressive socialist policies that have been floated out there now for the past 7.5 years and counting.

'Winning championships' is great. Being able to support yourself and your family by working for yourself or a great company in a great American expanding economy instead of trusting government to do it for you is even better.

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Thursday, May 26, 2016

'He Could Bankrupt America!'--Hillary Clinton

"What little we know of his economic policies would be running up our debt, starting trade wars, letting Wall Street run wild, all of that could cause another crash and devastate working families and our country" Hillary Clinton said Monday.
"He could bankrupt America like he's bankrupted his companies"
Who is she really talking about, Donald Trump or our current President Barack Obama?

Out of the hundreds of businesses Donald Trump owns, it is reported that he took 4 of them into some form of bankruptcy protection which is a legal way to protect assets while reorganizing the underlying business.

America has some of the most lenient bankruptcy laws in the world mainly because we used to want to encourage risk-taking on the part of entrepreneurs and business people who will experience failure as they take any sort of risk along the way and then we want them to get back into the game where they can start a new business and hire people and create jobs and all that.

Most people never start one business during their lives. Many are content just to work for someone with the guts and vision and courage it takes to put up their own money or borrow it from investors, struggle through the start-up phases of any business; try to meet payroll and pay taxes on time...and then get 'blamed' by people like Hillary Clinton and Bernie Sanders and Barack Obama for 'making a profit' as if that is a bad thing in America somehow.

That is what America is all about in the first place. Having the freedom to take an idea and make it grow into something you want it to be, not the President or your parents or any of your friends or foes want it to be.

Failure to understand that dynamic is just one of the many landmines in President Obama's failed economic policies, one which apparently Bernie Sanders adheres to as does Hillary Clinton.

The more pertinent point to Hillary Clinton's myopic comment though is this:
'How can Donald Trump do ANYTHING that would lead to more 'bankrupting' of America than President Obama has allowed to happen over the past 7.5 years of his leadership (sic) and presidency?
Let's look at the videotape:
  • On January 20, 2009 when Barack Obama was sworn in as the 44th President of the United States, the national debt stood at what was then an alarming $10.6 trillion.
  • On January 20, 2017 when President Barack Obama flies away from the White House in the presidential helicopter, the national debt will be an astounding $20.5+ something trillion.
That is a 100% increase in anyone's book whether standard math, Common Core or from Ray's Arithmetic Series for elementary school students back in the 19th century.

Can anyone deny that happened under President Obama's watch while in the White House?

Didn't think so. Facts are facts and numbers are numbers. Presidents get judged by history depending on the day they took the oath of office to become President right through the day they leave the White House.

Why is the national debt of any concern anyway? Why can't we just borrow all that we want when we want to borrow it and fix all the problems we face in America right now?

If the President was some sort of 'Anti-Isaac Newton' who could repeal the laws of economic gravity, that would be a good solution.

However, in the annals of recorded human history, excessive borrowing by any form of government from kings to dictators to republics to communism has always led to financial disaster for the citizens of said state or country.

100% of the time. There is no getting around it. Profligate spending on the part of any leader or elected legislatures of any country has always led to depreciation of the currency; high interest rates, high rates of inflation or even hyper-inflation and a general collapse of the economy which hurts everyone. Especially low-income, wage-earning people whom proponents of more federal spending purport to say they want to help.

Running up exorbitant levels of collective debt that can destroy our economy and freedom is not a good way to help anyone in our book.

Here's some charts that help explain what is truly at stake in this upcoming election:

  1. Are we going to return to a time of mature adult leadership when it comes to balancing our federal budgets and reducing the national debt or
  2. Are we going to continue down the path of financial imbalance that started in 2001 under President George W. Bush 43 and which President Obama has just 'super-sized' like he is at a McDonald's or something?
There really is no more important question to be asked of you, the voter, when it comes down to deciding who to vote for in the fall election.

Once the country has made their choice on November 8, there is no going back and asking for a do-over or mulligan, you know.

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Tuesday, May 17, 2016

Duke Basketball, Donald Trump and Bernie Sanders

When things get really bad, people want change
Coach K and Duke team, 1983
Ever notice how when things are going along pretty well, no one wants to make a massive change?

Or that everyone just sort of takes 'the good times' for granted and things will just keep going along as well as they have always been?

Take Duke basketball for instance.

For the past 36 years, the Duke basketball program under Coach K has pretty much operated on all cylinders, winning 5 national titles, racking up 970 victories and generally has been in the national conversation every year as either the favorite or one of the favorites to win it all.

Duke fans and foes alike have gotten so used to all that winning that they just accept it now as a matter of course and fact of life. You never hear anyone suggest Coach K should be 'fired', even when they have lost in the first round of the NCAA Tournament 2 out of the last 5 years, except maybe every other coach in the ACC who is tired of running up against him every year.

But you know when Duke fans really did want to fire Coach K? In 1981-82 and 1982-83 as he compiled 10-17 and 11-17 records which were worse than 3 of his 5 seasons previously at Army.

'He can't use man-to-man all the time!'
you heard people scream. 'This motion offense is idiotic!' you heard others say.

We can't really print what people were saying after Duke lost at Cameron to lowly Wagner College of New York City on January 5, 1983 before only 5,500 fed-up fans at Cameron Indoor Stadium.

(Imagine that. A virtually half-empty Cameron Indoor Stadium where it has been sold-out for every game since the mid-1980's when Duke stated its ascendancy back to the top of college basketball)

That could have been the night that everyone could have been called 'Cameron Crazies' except they were 'crazy' with anger, derision and venom. They all wanted Coach K's scalp and for him to be fired and drummed out of Durham the next day.

In short, no Duke fan had any confidence on the cold night of January 5, 1983 that Coach K was ever going to get the job done right at Duke University.

What is the point of this comparison to Donald Trump and Bernie Sanders?

'When things are not going well, people want a change. The worse things get, the bigger and quicker they want that change to be'

Which brings us to Donald J. Trump and Bernie 'Feel The Bern!' Bernie Sanders.

Let's take a quick look at where politicians in Washington DC have taken us as a nation since the last time we had some sense of normalcy, adult leadership, sanity and balanced budgets in 2000:

  1. When President Bill Clinton left office on January 20, 2001, the national debt was $5.6 trillion.

    -Today, it is passing $19.6 trillion and is still on an upwards trajectory with no signs of abatement or flattening-out.
  2. 132 million people were employed in non-farm jobs as of 1/20/01. Out of a total population of 282 million.

    -143 million
    people are now employed in non-farm jobs today. Out of a total population of 323 million.

    -The US population has grown by over 40 million people since 2000. And yet only 11 million more people are at work in full-time jobs 16 years later. Why hasn't the employed workforce increased by 20-30 million people instead of just 11 million?

    -There's your 'discouraged/left-the-workforce' gap that is contributing to the general sense that 'something just ain't right' with the US economy right now and hasn't been for a long time.

    -Everyone knows people who have tried and tried repeatedly to find permanent work only to get discouraged and stop working or take early retirement or disability when they really would prefer to keep working.

    -Older people are working longer and not retiring
    , mainly because they have to keep working as a result of the Great Recession of 2008-2010 when a lot of retirement money was wiped out. A large number of the people who have left the workforce since 2000 can be attributed to Boomers retiring but that leaves millions of people who want to find work unable to find a job in The Obama Economy.
  3. The Immigration System of America Was a Mess in 2000.

    -President George Bush 43 actually allowed, and in many ways, encouraged, millions of illegal immigrants to enter the United States through the borders of Texas in large part because many in the American business and agricultural industries wanted a large source of cheap labor since they were finding it ever more difficult to find workers for their often-times backbreaking, hot and sometimes dangerous jobs.

    -Anywhere from 11 million to 30 million illegal immigrants were allowed to cross into the United States since 2000 depending on what estimates you can find.

    -The Immigration System of America is STILL A Mess in 2016

    -No substantive changes, improvements, reforms have been made legislatively to correct our immigration system. 9/11 caused the consolidation of the Immigration and Naturalization Service (INS) into Homeland Security but the flood of illegal undocumented aliens continues to this day.
  4. The Health Care System of America Was A Mess In 2000

    -Overall health care costs were growing at close to double-digit rates for much of the previous 20 years. 35-40 million people were uninsured. Medicaid and Medicare represented about 20% of the federal budget.

    -The Health Care System of America IS STILL A MESS in 2016

    -Medicaid and Medicare now make up over 25% of the federal budget. The ACA exchanges are crumbling across the nation in all states. 25-30 million people are still left uninsured. The private insurance markets have been disrupted and/or destroyed in many states when it comes to delivering insurance coverage to individuals or companies. And we have an additional $1 trillion or more added to the federal debt that can be solely attributed to the passage of the ACA in 2010.
Ask yourself this question:

'What significant public policy issue that affects us all has gotten appreciably better due to the actions of our elected President working in conjunction with our elected representatives in Congress and the US Senate since 2000?

According to most people who respond to surveys where 65-75%+ say 'America is on the wrong track', the answer is an emphatic 'NONE!'.

Which is why we are seeing the extraordinary rise of Donald Trump to be the presumptive Republican nominee for the White House this fall and the unbelievably durable campaign of Socialist Bernie Sanders who is making Hillary Clinton's path to her supposed coronation not a cakewalk by any means.

The people of this country have just said: 
'I have had enough. Elected politicians have not gotten the job done. They have not gotten even one thing done that I care about: jobs, economic growth and higher wages foremost among them. I am sick of them all. So I am voting for the most outside-of-all-outsiders to see if they can do something whereas we have 16 years of empirical proof that established politicians do not know what they are doing and simply can not get the job done for me or the American people'.
One conjecture might be that had the Republican President George Bush 43 been more deficit-conscious during his term with GOP control of the House and Senate from 2001-2007 and not fought the war in Iraq but continued the war on Al Qaeda and the Taliban in Afghanistan to its conclusion until both were annihilated, the Republicans today might be viewed by a majority of voters as having done 'the right thing' when given the chance to lead.

Or had Bush 43 cut any sort of immigration, budget or health care deal when Nancy Pelosi was Speaker of the House from 2007-2009, perhaps the voters would have given experienced politicians such as George Bush's brother, Jeb and others more of their support this time around in 2016.

Or had President Obama worked with the Republican minority in Congress from 2009-2011 to cut a deal on restraining spending; true health care reform or immigration, perhaps voters would be rushing to surround Hillary Clinton and ask her to keep doing 'more of the same' this time around instead of cheering on Socialist Bernie Sanders which is a protest candidacy against the status quo if there ever was one.

Or maybe if President Obama had worked with the Republican majorities in the House and then the US Senate from 2011-present to cut a bipartisan deal, any deal!, on anything of any consequence in Washington, perhaps the American electorate would not have been so enamored with a reality star, commercial real estate mogul that he has completely sucked the oxygen out of the political atmosphere for the past year.

Since none of these have occurred, or even had a snowball's chance in Hades of happening due to the intransigence and political immaturity on both sides of the aisle, the American voter has become enraged much like the Duke fans after that Wagner College loss at Cameron Indoor of all places.

Duke Athletic Director Tom Butters responded soon thereafter with a new 5-year contract for Coach K, right when it looked like everyone, and I mean everyone, thought he should be or was going to be fired.

The American People are not willing to do that with any experienced politician running for the White House today. This deep and thick animosity towards 'experienced politicians' might soon overcome and envelop Hillary Clinton if the past year is any indication of what is to come this summer and fall.

Maybe the politicos on both sides will read the real tea leaves of this election and come to the conclusion that they don't have to win 100% of what they want every time there is a bill in Congress to be debated and passed. The vast majority of the electorate care less about ideological purity and far more about making progress towards solving major problems.

People would have been happy with budget, health care and immigration bills that were not 'perfect' but were 'workable' and solved maybe 75% of the problem at any point along the way since 2000.

Maybe if a Congress and a President over the last 16 years had accomplished a significant budget deal along the way, our national debt might be $11 trillion instead of approaching $20 trillion which would have taken at least some of the steam out of the anger now fueling the Trump campaign, yes?

That would have involved statesmanship, leadership and compromise, in that order. None of which was used in over-abundance or enthusiasm by either side since 2000. By any politician. President, Speaker, Majority Leader or any other Member of Congress or Senate.

The vast majority of the American electorate could care less if one side or the other signed some silly pledge or had to cut a deal and make a few compromises along the way to achieve the greater good.

They just want something of consequence to be done. Anything.

Had our elected officials in Washington done so, it is doubtful that we would have even heard of Donald Trump or Bernie Sanders this past year.

Experienced politicians such as Jeb Bush and Scott Walker would have been as welcome on their road to the White House as Coach K is when he drives his Escalade every morning to the parking lot behind Cameron Indoor Stadium.

Instead of being summarily hung in effigy. (like Dean Smith was by the way in his 4th season at UNC)

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Friday, May 13, 2016

'Shall We Play A Game' With HB2 In North Carolina?

(click through title link to see video if you can't see it)
By now, you would have thought the fervor over North Carolina's HB2 would be subsiding at least a little bit, wouldn't you?

Nope. Instead it has escalated to DefCon 2 with Obama Attorney General Loretta Lynch issuing a letter telling North Carolina that HB 2 is in violation of the Civil Rights Act and they might withhold billions of dollars in federal aid to the university system under Title IX plus transportation funds and any other federal aid that may flow to North Carolina.

(Late-breaking news: The DOJ now says they will not withhold any federal funds while this issue is in court. The Obama Administration will send a letter to every school district in the nation today advising them to make sure transgender students have access to the restroom that aligns with their gender expression or else they will be in violation of the Civil Rights Act and subject to penalties)

Governor Pat McCrory has filed a lawsuit against the federal government calling their action a gross overreach of federal power and asking for an injunction against any withholding of federal funds plus clarification of whether the ordinance as passed by the Charlotte City Council on February, 2016 included classes of people who were in fact covered by the Civil Rights Act as a protected class of American citizens.

This is not the movie 'WarGames' starring Matthew Broderick in 1983. This is 'not a computer-simulated game' that he thought he was playing with 'Joshua' after he had hacked into the NORAD defense system of America.

This is real-life with real consequences for everyone involved. Not just the political actors but every citizen in North Carolina.

However, it does have elements of 'political gamesmanship' coupled with some deep divisions in political philosophy dating back to the debate over the US Constitution that you need to keep in mind as you watch this saga unfold over the coming months:

I. HB2 Has 'Political' Fingerprints All Over It

As noted in our last post, the Human Rights Campaign is a very well-organized and funded national political organization that advocates the rights of the LGBT community. The Charlotte City ordinance was not passed as a result of any lawsuit or action taken in Charlotte that denied the right to enter public or private restrooms of any person who was transgender but was passed because the Human Rights Campaign supported Mayor Jennifer Roberts in her campaign last fall in 2015.

She promised she would pass this ordinance once elected and 52% of the voting population in Charlotte voted for her so she was 'just following through on her campaign promise' which many people want their candidate to do once elected, right?

There is speculation that she felt this would help propel her to run one day in another run for Congress against incumbent Congressman Robert Pittenger or perhaps Senator Thom Tillis in 2020.

Politics is politics. It happens on both sides of the aisle.

II. Is The Obama Administration REALLY Going to Withhold $4.5 Billion in Title IX Funds From North Carolina?

Put your logic hats on for this one:

Title IX funds specifically help female students and athletes from kindergarten through college have equal access to all programs or activities, most notable of which has been the explosion of women's athletic programs since 1972.

President Obama has been a vocal and tireless supporter of females during his Administration.

Even before the announcement that he would not withhold any federal funds while the case was in court, was he really going to authorize the withholding of $4.5 billion in Title IX funds to the State of North Carolina which would decimate women's athletic programs at every publicly-funded university or public school?

We may continue to see the 'threat' of withholding of such funds in order to force the NCGA into changing HB2 in some way. But the immediate rescission of Title IX funds by the Obama Administration to the State of North Carolina would only wind up hurting the very constituency that President Obama and his Cabinet would least want to see hurt in any way, shape or form.

It is like holding a gun to your head while threatening to jump off a bridge into speeding traffic below. No one in their right mind would do either.

No Title IX funds have ever been directly denied to any college or university or public education system.

This particular threat doesn't make a lot of sense.

III. Instances Where Federal Government Has Withheld Federal Funds To States

Any time there is a tie between federal funding and a state, there is the potential for federal funding to be used as a lever to force state action to comply with federal policies.

However, actually withdrawing or diminishing federal grants has been used sparingly over our history and very little in recent years.

The federal government used the Highway Trust Fund four times to force states to comply with federal regulations regarding raising the national drinking age from 18 to 21 in 1987; setting a national 55-mph speed limit (can you imagine 55 mph today?) in 1974 amidst the oil embargo and forcing motorcyclists to wear helmets (overturned by act of Congress in 1995).

In the 1960s, the federal government used the threat of withholding funds after passage of the 1964 Civil Rights Act to force 100 school districts in the South into adopting integration in public school.

The same threat has only been used sparingly since then, most notably in the '80s to force Grove City College in Pennsylvania into compliance with Title IX regulations even though Grove City as an institution did not accept federal aid of any kind, although some of its students did through Pell Grants and other forms of federal assistance.

Most recently, the Obama Administration tried to force states to expand Medicaid coverage in the ACA or risk losing all of their federal match of Medicaid dollars for their citizens in the Medicaid program which ranges from 55-73% of total costs of Medicaid in the states.

On June 28, 2012:
'...(A) majority of the (Supreme) Court found the ACA’s Medicaid expansion unconstitutionally coercive of states because states did not have adequate notice to voluntarily consent to this change in the Medicaid program, and all of a state’s existing federal Medicaid funds potentially were at risk for non-compliance. (A) different majority of the Court held that this issue was fully remedied by limiting the Health and Human Services (HHS) Secretary’s enforcement authority, thus leaving the Medicaid expansion (and all other ACA provisions) intact in the law.'
Several observers opined that the Obama Administration 'tried to use a sledgehammer from Washington to pound states into submission and do what they (the Obama White House) wanted them to do rather than have any input into what they wanted to do in that particular state'.

Could it be argued that the Obama DOJ is trying to use that same 'sledgehammer' approach by threatening to withhold $4.5 billion in federal aid over an issue that really was not even a major problem defined by a lawsuit or grievance in Charlotte, North Carolina before February 22, 2016?

To put this in another context, can anyone in the media or on the pro-Charlotte ordinance side of things begin to imagine the firestorm that would have been created had say, President George W. Bush, used the same heavy-handed tactics to withhold millions of dollars from Planned Parenthood across the nation in order to force them to comply with some part of an anti-abortion agenda without any legislative input or confirmation first from the US Congress?

It would have put the wildfires in British Columbia to shame for being just a fire in an outdoor firepit in someone's backyard by comparison.

IV. What Is The Enforcement Mechanism For The Obama Administration IF North Carolina Refuses To Cooperate With The DOJ Letter Or Subsequent Legal Ruling In DOJ's Favor

Is President Obama prepared to send in the National Guard to guard every restroom in North Carolina if North Carolina refuses to comply with the DOJ position on HB2? There has to be millions of public restrooms alone in the entire state of 10 million people today.

Think about it. What is the only other mechanism left to a Chief Executive in the White House to enforce any executive order or Supreme Court ruling?

The Supreme Court can issue any ruling they want but those 9 Justices sitting on the High Court at any time simply can't do anything to enforce any ruling they may make on any issue. The Founders of the Constitution did not give them any enforcement mechanism, thankfully in many regards.

President Eisenhower sent the National Guard into Little Rock, Arkansas to enforce the integration of public schools in 1957 following the landmark 1954 Brown vs Board of Education of Topeka, Kansas Supreme Court ruling that ended segregation in public education. 9 African-American students were protected by National Guard troops as they entered Little Rock Central High School.

Assuming the NC General Assembly fails to comply with the Department of Justice either because of their letter or a subsequent judicial ruling or the threat of the loss of Title IX funds, do you really believe President Obama will send in the National Guard to enforce their view of what sexual discrimination covers under the Civil Rights Act as currently written?

If you do, then we are in far deeper trouble as you will see next.

V. 'Federal Over-Reach' vs. 'State's Rights'

What we are seeing play out in stark contrast right now in North Carolina is nothing new in our democratic republic with so many competing interests in the state and federal government interaction.

'Anti-Federalists' back then objected to the concentration of power in Washington which superseded the power of the states to control their own destinies.

'Federalists' at the time recognized the need for a vigorous national taxing authority primarily to fund an effective military defense to defend the new nation against further attacks by Great Britain, which happened again 25 years later anyway.

President Obama has made no secret of his disdain for the parts of the US Constitution that he feels hinders his ability to complete his 'Change' agenda before leaving office in less than 8 months from today. This effort is an extra-legislative way to force such change on states without having to go through the constitutionally-mandated process of having the US Congress and Senate consider and pass amendments to the Civil Rights Act of 1964 that would add 'gender expression' to the list of protected classes of people for anti-discrimination purposes.

It is far easier for any President to use the court system to enact such change and hope that a friendly judge or a panel of judges will interpret the Constitution in a way that is commensurate with the political goals of the White House at the time.

The final warning to anyone who is cheering on President Obama as he uses executive orders and DOJ 'enforcement actions' such as this one is this:

'Will you be just as happy to see 'President Donald J. Trump' use the exact same tactics and procedures to enact any of his stated political wishes starting January 20, 2017?'

Take 2 Excedrin headache pills, think about it some and you will wish President Obama had adhered to the tried-and-true process of 'legislative supremacy' our Founders and leaders such as Henry Clay used to keep concentrated power out of the hands of one person in the White House.

Presidents use 'precedent' all the time, you know.

Like 'Joshua' says at the end of 'WarGames': 'How about a nice game of chess?'

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Saturday, May 7, 2016

Ball of Confusion on HB2

Well, the only person talking about love thy brother is the preacher
And it seems nobody's interested in learning but the teacher

Segregation, determination, demonstration, integration

Aggravation, humiliation, obligation to our nation

Ball of confusion

Oh yeah, that's what the world is today*

There is so much emotion, venom and flat-out disinformation being dispensed out there that no one in the general public seems to know what to think about this controversial issue.

Several people have asked for a primer on the subject so, with the caveat of this not being 100% in our wheelhouse, here's some background information you might not be aware of regarding HB2 that might help you at least understand how we got here and why it has been so explosive.

I. North Carolina is a 'Dillon Rule State'.

'All power in the state derives from the state legislature' as described in this film from 1963, 'The Ayes Have It'.  

In 1868, Judge John Dillon of Iowa issued a decision which established the supremacy of the state government over municipalities much in the same manner as federal law pre-empts state law.
'Dillon's Rule is derived from the two court decisions issued by Judge John F. Dillon of Iowa in 1868. It affirms the previously held, narrow interpretation of a local government's authority, in which a sub-state government may engage in an activity only if it is specifically sanctioned by the state government.
Dillon's Rule was challenged by Judge Thomas Cooley of the Michigan Supreme Court in 1871, with the ruling that municipalities possess some inherent rights of local self-government. Cooley's Rule was followed for a short time by courts in Indiana, Iowa, Kentucky and Texas until the U.S. Supreme Court upheld Dillon's Rule in 1903 and again in 1923.
Since then, the following tenets have become a cornerstone of American municipal law and have been applied to municipal powers in most states:
  • A municipal corporation can exercise only the powers explicitly granted to them
  • Those necessarily or fairly implied in or incident to the powers expressly granted
  • Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable'
        39 states are 100% covered by the Dillon Rule. Another 8 states cover only certain municipalities.

        If you go sit in the NCGA for any length of time, you will see dozens if not hundreds of local ordinances being brought up for discussion during the course of a legislative session. This has been going on in the NCGA dating back to 1868 which was about the last time Republicans controlled the North Carolina state legislature until the election of 2010.

        'All Power Derives From The State Legislature' in North Carolina whether you like it or not. It has been that way under virtual 100% Democratic control for 140 years before the last 6 under GOP control.

        If you want to change that fact, you will need to find some way to get around the Supreme Court ruling of 1923 and probably amend the state constitution while you are at it.

        II. The Issue of Transgender Rights in Bathrooms Is An Organized Nationwide Political Effort 

        This issue did not originate in Charlotte in February, 2016. Nor was it the result of a lawsuit or any sort of widespread discrimination simply because no one knew who was using which bathroom when or where.

        The Human Rights Campaign (HRC) headquartered in Washington, DC is a well-funded organization that advances the cause of the LGBT community nationwide. The issue of transgender access to public restrooms in North Carolina was first advanced in Asheville, NC in 2015 but was tabled in the city council when it was explained that passage of the ordinance would be subject to Dillon Rule scrutiny by the NCGA controlled by the Republicans and most likely would be reversed after causing a huge political ruckus.

        Jennifer Roberts was running for Mayor of Charlotte in 2015 and chose to make this an integral part of her campaign. Once elected with 2 new members of the council, the motion to add 'gender identity' and 'gender expression' to the City's anti-discrimination ordinances (described below #) was adopted on February 22, 2016 by a 7-4 vote even though the Governor, Pat McCrory, a former Mayor of Charlotte had warned the council that it went too far and probably would be reversed by the NCGA under the Dillon Rule described above.

        The reason why a city can't just add coverage to their ordinances without any reservation or review by the NCGA is because of 2 things:
        2. If Charlotte or any city passes an ordinance, it has to be consistent with 552 other municipalities in the state and 100 counties in order to allow business to operate across county and city lines without having to adhere to 652 separate and inconsistent ordinances on any particular issue.
        If such an initiative were allowed to pass and stay in force, in essence, the Mayor of Charlotte could become the most powerful elected official in the state ahead of the Governor, the Majority Leader of the NC Senate and the Speaker of the NC House.

        III. Nothing Is Different Today in North Carolina Regarding Public Accommodations As Before February 22 When Companies Were Making Decisions To Come To North Carolina.

        When it comes to ordinances governing bathroom access, the law today in North Carolina is no different statewide than they were anytime before in 2014 or 2015 or even on February 22, 2016 before the Charlotte City Council vote. Because HB2 reversed the Charlotte ordinance before implementation on April 1, the expanded Charlotte coverage never went into effect.

        People were using the restroom of their choice without a lot of fanfare before then mainly because no one knew who was using the restroom or what their sexual gender identification or expression might have been. There was no lawsuit to our knowledge prior to the Charlotte City Council vote challenging the existing practice at the time either.

        There were no police at every restroom to monitor who was coming in and going out of each restroom.

        Public buildings and private business were offering male and female bathrooms as well as gender-neutral restrooms such as 'Family' bathrooms or just unisex single-stall restrooms that anyone could access and lock the door to use the facilities and then leave without anyone knowing what sex you were or were not.

        A friend with a predisposition for numbers estimated that anyone had a chance to go to a restroom in North Carolina of either sex before February, 2016 and have perhaps a 1-in-4000 chance of being in the same restroom during the year with a transgender person....and not even know it.

        With the passage of the Charlotte City Council ordinance, all of a sudden, public government and private business access to bathrooms were deemed to be under the Charlotte City Council purview and forced to comply with the new ordinance which seemed to open up the possibility that certain men might try to take advantage of the new 'open door policy' in their eyes and perhaps make restrooms more unsafe than they had been previously.

        You can agree or disagree all you want but at least you know the timeline involved as to how we got here.

        IV. The Anti-Discrimination Lawsuit Restrictions In State Courts Is A Lot More Complicated Than The Press Makes It Out To Be

        The bottom-line is that this provision of HB2 was considered in the previous legislative session in 2015 but was tabled late in the year.

        There is no 'EEOC' state law fully equivalent to federal law. Appellate courts in North Carolina long ago found certain rights that 'emanated' somehow from 'the 'penumbra' of the state 'Fair Employment Practices Act' (FEPA) that allowed employees who felt they had been unfairly fired from a job to sue their employer under a more generous set of rules than under federal law.

        Namely, a person could sue an employer in the state courts anytime during a 3-year period from time of termination whereas in the federal courts, the fired employee only had 180-days, or 6 months to file a claim.

        The federal courts are set up with more highly-trained and focused legal staff on the finer points of employment law in America than state courts. Most businesses, including the ones who are now thinking about leaving North Carolina, would be in favor or a shortened statute of limitations and funneling cases to the federal system versus the state court system that is not as well set up or suited to handle such complicated cases. **(summary below from employment law expert)

        V. The Minimum Wage Part of HB2

        This was part of legislation that was considered during the long session in 2015 but not passed. It was added to this bill as many provisions are attached to legislation at the federal and state level that appear to be moving quickly to implementation.

        There was some good news this week that this might be resolved somehow outside of the court system that is costly, tedious and quite honestly, 'extra-legislative' in nature. Our Founders wanted duly-elected legislatures to take up issues of public policy and render decisions, not small groups of judges, either elected and subject to political whims at the time or appointed for life totally immune to public sentiment.

        Former Governor Jim Martin has written a thoughtful piece you should read: 'Listen To Each Other'

        Charlotte Mayor Jennifer Roberts met with the Republican leaders of the North Carolina General Assembly on Thursday, May 5, to talk about ways to resolve this issue. Quite frankly, again, had these discussions taken place before the Charlotte City Council vote on February 22, none of this conflagration would have occurred and Bruce Springsteen would have given his concert and not refunded all those tickets to the people who wanted to hear him.

        In case anyone didn't notice, this past week we saw where the US economy stumbled to 0.5% economic growth in the 1st quarter of 2016; 300,000 people left the workforce because they can't find a job; our national debt passed $19.2 trillion, and, oh yes, Donald Trump became the nominee for the Republican Party to run for the White House presumably against Hillary Clinton.

        Maybe with the discussions now going on, a common solution (such as gender-neutral or family restrooms) can be reached where people can go to the bathroom in privacy so we can turn our collective attention and energies to solving these massive public policy problems we face together as a nation, perhaps?

        *lyrics to 'Ball of Confusion' by The Temptations 

        # 'Motion was made by Councilmember Kinsey and seconded by Councilmember Mayfield to 
        adopt Ordinance No. 7056 amending the City Code by adding marital status, familial status, sexual orientation, gender identity, and gender expression to the list of protected characteristics in the commercial non-discrimination, public accommodations, and passenger vehicles for hire ordinances.'

        ** Why a FEPA (Fair Employment Protection Act) cause of action does not need to be resurrected.

        There was never a cause of action by the General Assembly but was instead created by NC appellate courts as a "public policy" expression. FEPA has six (6) times the statute of limitations of the primary corresponding federal law Title VII, 180 days vs. 3  years There is no administrative exhaustion of claims under FEPA such as with the EEOC with federal claims.

        The vast majority of federal claims get resolved at the EEOC level.  No damages caps, unlike Title VII.  In state courts unlike federal claims.  State court judges see few of these cases, have no law clerks except for the Business Court, and rule off the cuff vs. studied written opinions by federal judges.

        Summary judgment is discouraged in state court, in contrast to federal 
        courts.  Summary judgment weeds out many, many meritless cases. FEPA applied to all NC employers with fifteen (15) employees or more.

        employers do not have the luxury of exercising their politics with public pronouncements such as PayPal, etc., and they often do not have the resources to defend lawsuits particularly when they can be ambushed three years after the fact.

        A minority of  states allow state law employment discrimination claims based on sexual "identity", homosexuality,  or claimed transgender status. Congress has the ability to amend Title VII or any part of the Civil Rights Act and change or add any part of the anti-discrimination law it wants.

        The present ACLU case posits that transgender discrimination is a form of sex discrimination.  Case law has held to the contrary for decades.  The Democrats file bills in every session of Congress to amend Title VII to include homosexual and transgender discrimination, neither of which has ever become law. If these two subsets of employment discrimination were types of statutory sex discrimination, the Democrats would not need to introduce such bills.

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