Monthly Archives: February 2017

“Nobody knew that health care could be so complicated.”

Statement by the President of the United States, February 27, 2017. http://nyti.ms/2ltf0pN.

Nobody?

We knew.

The law known as the Affordable Care Act was signed in March, 2010. The Republican Party hated it. Still does. The RP has had seven years to comprehend how “complicated” health care is. Now the President is shocked to learn that it is complicated. What more is there to say?

Perhaps someone – Kellyanne Conway? – will now explain that “nobody” doesn’t really mean nobody, at least when Trump uses the term. It’s just an adjective, like “military” in relation to deportation activities. That must be it: the “alternative fact” is that “nobody” doesn’t mean “no” body; it means, as Humpty Dumpty famously said, “”just what I choose it to mean—neither more nor less.”

It’s all so … complicated.

Compromise on Trump’s Tax Returns? — No!

A thoughtful article appeared in the Washington Post yesterday (http://wapo.st/2kV9os6), penned by two law professors proposing a plan to “compromise” with President Trump to secure at least a quasi-public view of his tax returns. I would normally defer to this type of approach to solving a high-conflict problem, but in this case, I must, with respect to the authors, reject the idea for multiple reasons.

The concept involves engaging the staff of the staff of the Joint Committee on Taxation, now dominated by Republicans, to privately review Trump’s returns and prepare a “public summary report redacted of any proprietary business information.” The result would be two reports, one “large confidential” and one “redacted public,” based on some “bipartisan process” negotiated in advance with a “summary explanation of any compliance issues raised by the review.”

The problems with this well-intentioned proposal are many and, in my judgment, insuperable. First is the fact that Trump lied repeatedly about his intention to release his tax returns. This proposal gives him the benefit of those lies and that seems fundamentally wrong on multiple levels. Second, the complicated process does not result in full transparency and will almost certainly lead to continued complaints that critical details have been sanitized, whether intentionally or not. Third, there is no reason to trust the Republican majority to play this straight, as they have shown time and again an unwillingness to challenge the President’s remorseless lying, attacks on the independence of the press and many other examples too numerous to detail here but well-known to everyone paying attention. Finally, Trump’s dishonesty suggests he cannot be depended upon to live up to any arrangement if he suddenly decides he doesn’t like it. The latest reported efforts of the White House to suborn the FBI regarding the “Russia connection” are only one of many examples of the lengths Trump will go to delegitimize criticism.

It is true, of course, that full disclosure of Trump’s returns might reveal some confidential business information. That is a problem of his own making. If he had properly divested himself of his business interests, rather than the charade he perpetrated with the infamous stacks of legal documents display, these concerns would perhaps carry some weight. As it is, there is no reason to let Trump off the petard on which he has hoisted himself. If he persists with the fantasy, often repeated by his chief counselor, Kellyanne Conway, that since he won the election, no one cares about his tax returns, he and those who support him will suffer the political consequences. As Abraham Lincoln allegedly said: “You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time.” Time will tell. Let’s not make it easy for the foolers.

American Airlines Customer Service – Updated, Over & Out

To bring closure to this sordid episode in airline hubris, we tried multiple times at Washington National and again at Tampa to get someone from American to address the problem it had created. The responses were to keep pushing us off to a later step in the process where, we were told, the now empty Row 13 would be available for assignment to us at the airport. Needless to say, that did not happen. The last person I spoke with in Tampa did not even bother to read the boarding passes and kept insisting that I was someone named Hammond, then said she was only working the Dallas flight and we should await the arrival of another gate agent. That’s when we gave up.

We traveled in separate rows, not the end of the world, being adults and all. But as a matter of principle, this is a classic case of corporate irresponsibility toward customers. At no time was a notation made in the record to do anything to resolve the problem American unilaterally created by breaching our seat purchase contract.

The last message from American to my wife, who made the initial seat arrangements, reads in relevant part:

“A systemwide reservations system migration which went into effect after you made your seat reservation but before your departure date created a problem with your reserved seats. While it may seem like a small matter, changes can play havoc with seat assignments. In such cases several passengers may have to be reaccommodated in a limited amount of space, reducing our ability to satisfy everyone’s first choice of seat location. Moreover, during the small window of time in between the modification to our schedule and the reassignment of reserved seats, it is possible for another customer to request and receive a seat previously held by someone else.” [Emphasis added]

Reading that, you would think some independent force brought all this about without American being aware it was coming and helpless to do anything to mitigate its effects. At no point is there an explanation of why our seats had to be reassigned. There was no evidence of an aircraft change or seating configuration change on the plane. This seems like just so much corporate double-speak, the sound of “you’re dismissed.”

And the final kicker: “while reserved seats aren’t guaranteed, the next time you fly with us and settle into your seat, we’ll do our best to provide you with the one you reserved.”  We understood that seat assignments aren’t guaranteed when they are made without charge, but foolish me, after so many years in the industry, I actually thought there was still some semblance of bilateral contractual responsibility involved when I paid for something and the other side signified acceptance. Be aware.

Time to move on to something more important.

How Not to Treat a Customer – American Airlines

I told myself I wouldn’t write about the industry in which I worked for so many decades, but enough is enough.

On November 20, 2016 my wife booked herself, her daughter and me on flights from Washington DC to Tampa tomorrow morning. Since we were denied the opportunity to get free seat assignments on the return, my wife paid a premium of $24 per seat so we could sit together in Row 15. She received an email confirmation of the purchase and the seat assignments.

Today we received the usual notice to check-in and saw that we no longer had the seats on the return flight. Instead we were offered the opportunity to buy two of the seats we had already paid for but at a $10 higher price. The middle seat was gone. But we can buy the middle seat in Row 14, an Exit Row, for $61. Or we could wait until we get to the airport and take our chances. All of the other seats on the seat map are shown as X’d, meaning they are “unavailable.”

American’s explanation was that there was a “reconfiguration of inventory.” This action occurred on January 4, roughly six weeks ago. No notice from American which is sitting on our money with no intention of returning it until, they said, it was noticed that we didn’t sit in the seats we paid for, at which point they would “automatically refund” the money paid for the seats.

We were further told that it is “no longer possible” to move the person occupying the middle seat that we had paid for. The other two seats in Row 15 are still available for purchase at the $10 higher price.

This bait and switch scheme is another example of what happens when there is no real competition among the airlines. And, of course, there is no practical remedy because the airlines are immune from suit under state laws governing fraud. We could, perhaps, make out a case of breach of contract, but I suspect there is buried somewhere in AA’s terms and conditions a statement that says its promises to provide special seats in return for additional charges are not binding.

The bottom line from American – come to the airport and bring the situation to the attention of the gate agent who will “do her best” to get your party seated together, somewhere on the airplane, precisely what we intended to avoid happening by paying extra for assigned seats.

I will be lodging this as a complaint with the Department of Transportation but it is largely helpless to compel airlines to live up to their promises regarding purchased seat assignments.

Keystone Kops Meet Three Stooges – Three Weeks of Trump Administration

Those of you old enough to have seen the old film clips know that the Keystone Kops and Three Stooges comedy shtick involved a lot of bumping into each other, falling down, bopping on the head and nose pulling to what, in the case of the Stooges, were regarded as amusing sounds. In those days such things were indeed considered very funny by millions of fans.

Now we have a modern day version of the same thing playing out in the administration of Donald Trump. But it’s not funny.

The sheer incompetence of Trump’s management style is playing out for the world to see. The latest episodes have him and members of his inner circle huddled over a dinner table in the main dining room at Mar-a-Lago discussing national security and military issues arising from North Korea’s latest missile test. There are photos taken by another guest, not part of the government, showing papers, presumably highly confidential, being lit up by cell phones. The Prime Minister of Japan is at the table and part of the conversation.

While the issue certainly affects Japan and our relations with it, you would think our top government people would first want to discuss the situation among themselves before talking it over with the leader of a foreign power. Press Secretary Sean Spicer said today that all that activity just related to organizing a press conference and that Trump had been advised before the dinner about the missile launch in secure quarters. Maybe. Hard to know what to believe when everyone in Trump’s house has a different version of events, as in, for example, the conflict between Spicer and Kellyanne Conway over whether Michael Flynn was fired or resigned. More alternative facts, I suppose. Take your pick.

Trump has been in power less than one month and chaos reigns around him. The great business leader appears to be thrashing around trying to look like a tough guy who’s on top of his agenda, while the work product is mostly a bunch of Executive Orders that accomplish very little actual change and were mostly unnecessary, including, of course, that masterwork on immigration that has been soundly repudiated by the 9th Circuit Court of Appeals.

The travel ban EO appears to have been written by people with no legal degrees. One of the chief authors, Stephen Miller (Senior Advisor to the President), just finished a round of weekend interviews in which he decreed that the authority of the president may not be questioned. Mr. Miller was smart enough to graduate from Duke University, no easy feat if you’re not an athlete, but went to work in politics for the likes of Michelle Bachman. Now, at age 31, he is one of Trump’s closest advisors. With all due respect, Mr. Miller probably should have gone to law school first, or at least a graduate program involving constitutional learning.

Trump’s reliance on Miller, Stephen Bannon (Chief Strategist), Reince Preibus (Chief of Staff) and Kellyanne Conway (Counselor to the President) has produced constant chaos and gaffes at every level, an embarrassment to the United States here and abroad. In case you missed the interview, here is the exact Miller statement:

“Well, I think that it’s been an important reminder to all Americans that we have a judiciary that has taken far too much power and become, in many cases, a supreme branch of government. One unelected judge in Seattle cannot remake laws for the entire country. I mean this is just crazy, John, the idea that you have a judge in Seattle say that a foreign national living in Libya has an effective right to enter the United States is — is — is beyond anything we’ve ever seen before.

The end result of this, though, is that our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”

Is there something about judges in Seattle we don’t know? Miller smirked when he mentioned Seattle, as if a judge from Seattle was somehow a ridiculous idea that merited no respect? The Ninth Circuit Court of Appeals sits in four Western cities, covering nine states plus Guam and the Northern Mariana Islands. It rejected the government’s attempt to overturn the District Court’s injunction pending further litigation. That apparently is not good enough to satisfy Mr. Miller’s concept of judicial authority either.

What exactly does Miller mean that as a result of “further actions,” the powers of the president to protect our country will not be questioned?” It sounds like a direct threat to the role of the judiciary in our tripartite system of checks and balances established by the Constitution. Maybe all he meant to say was that next time the Executive Order will be competently and narrowly written so that there is no real question of its legitimacy. Maybe. Mr. Miller should choose his words carefully. Threats to reject the authority of the judiciary as the third co-equal branch of government are more serious than Mr. Miller appears to understand. Oh, and the judge in Seattle did not say that “a foreign national living in Libya has an effective right to enter the United States.”

At the time of the weekend interviews Mr. Miller had ample time to read the 9th Circuit opinion rejecting the government’s request to overturn the decision of the “unelected judge in Seattle.” The court’s opinion eviscerates the government’s arguments one by one, including these findings:

“… although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” [Opinion Part IV]

and

“The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982).”  [Opinion Part VI]

Again, a few years in law school would have helped Mr. Miller grasp these Constitutional fundamentals. Why is the President of the United States relying on this person to speak for his administration in matters of this nature?

Just today a USA Today reported that

“review of presidential documents shows at least five cases where the version of an executive order posted on the White House website doesn’t match the official version sent to the Federal Register. The discrepancies raise further questions about how thorough the Trump administration has been in drafting some of the president’s most controversial actions.”

I won’t belabor this further. The Trump administration is led by a man who claims to be a master business leader, disciplined organizer and super-decisive “very smart” person. In today’s press briefing, Sean Spicer went out of his way to emphasize how “decisive” the President has been in all things. Yet everywhere one looks through the first three weeks of his administration, we see people bumping into each other, heads being bopped and noses yanked. This made for good comedy way back when, but it’s no way to lead a government. Despite months to prepare, all the President’s men seem to have little idea of what they are doing.

#RESIST

Republican Senators (save two) – Party Before Country

SHAME on the Republican members of the U.S. Senate who voted for Betsy DeVos for Secretary of Education. Ms. DeVos demonstrated at her truncated confirmation hearing and in her post-hearing written responses that she is uniquely unqualified to run the Department of Education. This callous act ranks right down there with the nomination of Sarah Palin to be Vice President. The Republican senators who voted for DeVos have dishonored themselves, the Senate and the country. There is nothing left to say, except hats off to Senators Collins and Murkowski for having the courage to do the right thing in the face of what must have been massive pressure to yield. Oh, there is one other thing to say – this will not be forgotten. SHAME!

#RESIST

Churches – Careful What You Wish For

The President has promised to “totally destroy,” as opposed to seeking the removal of or some other non-hysterical term, the Johnson Amendment that prohibits tax-exempt churches from participating in political campaigns. The report appears here: http://wapo.st/2kDKH23. To accomplish this goal, supported apparently by the religious “right,” will require an act of Congress and Trump’s signature. He promises to deliver both.

This scheme has some complex implications, which, as usual, seem not to have been thought through by the President and his henchmen. It will, for one thing, opens church treasuries to uses not contemplated by parishioners when they contributed the money. It will expose the churches to campaign demands to sermonize for the favored candidates and to contribute more, and more. And more. That’s what campaigns do once they know who you are.

This will, I suggest, fundamentally alter the nature of the ministry. It will open the churches to

the full spectrum of political “discourse” as it is now practiced. Inevitably they will become embroiled in the so-called “give and take.” How long before the churches start attacking each other in the political arena? Is this what the churches are for? Is it what their parishioners are seeking from their church? Apparently some are. Just what we need – a theocratic political jousting for advantage.

And, what effect will such an action have on other political engagement bans for tax exempts?  If one rule says tax-exempt churches can engage in partisan campaigns, while getting a pass on federal taxes, it is possible to maintain an engagement limitation on charities generally? I think not. A law favoring religious institutions would, I believe, be a law “respecting religion” which is expressly forbidden by the First Amendment “establishment clause:” “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Will Trump seek to escape this problem by proposing to unhinge the charities as well? Some will argue that this is the next logical step to the Supreme Court’s Citizens United case, which allowed unlimited “independent” spending by corporations in political campaigns. The Court essentially found that “non-persons” have constitutionally-protected speech rights and that spending money is the same as “speaking.” Whether or not there is a logical process here,

it does seem inescapable that if Congress unleashes the churches’ political campaigning maintaining their immunity from federal taxation, it must provide similar rights to other exempt organizations.

Something to think about.

#RESIST