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TPP: Trump Backs Out of the Trans-Pacific-Partnership

Trump is no stranger to making controversial headlines and his recent decision to withdraw the United States from the Trans Pacific Partnership agreement is no different.  Obama spent the last 7 years negotiating the deal, so the decision comes as a blow to those loyal to the Obama administration.

The agreement was designed with the hope of eventually creating a single market, which would be similar to that of the European Union.  Since Trump has pulled the U.S. out of the agreement, the TPP will be nearly impossible to ratify as is; the agreement required all 12 countries to ratify within a 2-year period.  For those nations wanting to renegotiate a trade deal without the U.S., other key players, such as Japan, say U.S. participation was the carrot on the stick.

What is the Trans Pacific Partnership Agreement?

The TPP was a trade agreement between nations consisting of 40% of the world’s trade market: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States.

If you’re not familiar with trade agreements, they’re treaties between two or more nations agreeing on terms of trade between them.  These agreements are typically aimed at reducing or eliminating tariffs, quotas, and other trade restrictions.  The intention is to grow economies by increasing the trade of goods and services between the nations party to the agreement.

TPPOf course the TPP agreement focused on reducing tariffs, but it went beyond the standards of the World Trade Organization and focused on negotiating labor, environmental and intellectual property protections as well.  Here’s a few highlights of what the TPP would have done:

  • Trade barriers. The TPP agreement would have cut over 18,000 tariffs on all U.S. manufactured goods and farm products.  The agreement also would have mandated expedited customs procedures.
  • Environmental protection. The TPP is argued by some to be the most environmentally friendly trade deal ever negotiated, as the agreement requires signatories to commit to take appropriate measures to protect and conserve wildlife.
  • Good governance. The TPP agreement required all signatories to join the United Nations Convention Against Corruption, which is focused on criminalizing bribery of public officials and the general governance enforcing anti-corruption laws.
  • Intellectual property. The TPP would have required signatories to establish uniform standards for patentability and copyright
  • Labor standards. The agreement would have enforced obligations to protect the freedom to form unions, as well as enforce fair labor practices.
  • Investor-state arbitration. The TPP would have granted investors the right to sue foreign governments for violating the treaty.

The Good and the Bad

Of course there’s two sides to every story.  Critics of the TPP applauded Trump for withdrawing from the agreement, arguing withdrawing will bring jobs back to America.  Proponents of the TPP feel the withdrawal will give China more control over the Asian market.

Since tariffs would have been reduced on industrial goods, Japanese car companies such as Toyota and Honda would have had cheaper access to the U.S., while vehicles exported from the U.S. could have increased because of new access to markets such as Vietnam.  Cuts on poultry, beef, dairy, sugar, wine, rice and seafood would have benefited several agricultural companies.

International labor laws were negotiated as part of the agreement, which is a major benefit for less developed countries, however, many argue this would have resulted in job losses from developed countries like the U.S.  The agreement is said to not be favored by pharmaceutical companies because the intellectual property rights were too lenient.  Additionally, those against the agreement urge it would have driven up prescription costs and, thus, left many without the means to afford life-saving drugs.  Decreased global roaming charges seems like a great idea, however, this could lead to increased competition between telecommunication companies and end up resulting in higher prices for consumers.

What’s Next for the U.S. and Trade?

As part of his “America First” stance, Trump promised throughout his campaign to be more aggressive against foreign competitors and backing out of the TPP agreement draws a stark line.  This global cooperation attitude risks doing more harm than good.  There’s been threats of increasing tariffs up to 10% on all foreign imports, not to mention Trump’s most recent plan to tax Mexican imports 20% in order to pay for construction of the border wall, which risks starting a trade war with other countries that could ultimately result in a financial spike in consumer goods.

Trump Presidency, Day 3: Possible Constitutional Violation?

With all the criticism surrounding Trump prior to his inauguration, it doesn’t come as a surprise that it only took a matter of days before a lawsuit against him was filed.  The Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against Trump claiming payments received by foreign organizations violate the constitution; more specifically, the Emoluments Clause.

Remember when we discussed the issue of why a blind trust was so important?  It all comes down to conflict of interest issues.  CREW is a nonprofit, nonpartisan organization aimed at reducing the influence of money in politics in order to foster an ethical and accountable government.  The concern is that the conflicts of interests created from Trump’s business portfolio are too great.

Can Trump represent the interests of the people of the United States impartially while continuing to profit from his business portfolio?

You Can’t Profit from Power

What is the Foreign Emolument Clause?  In short, governmental officials can’t take money or other nonmonetary benefits stemming from their position in power.  Specifically, the Clause says,

“no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

President Donald TrumpAn emolument is a salary, fee, or profit from employment or office.  Notice the Clause doesn’t just preclude emoluments, but prevents one from receiving “presents” as well.    Historically, it was standard diplomatic practice to give expensive gifts, but when the drafters of the Constitution got together at the Philadelphia Convention to debate what would be the framework of our country, they decided to include a provision aimed at preventing corruption.

The Constitution does also include a Domestic Emoluments Clause, which has the same general concept, but allows the president to receive compensation for his services in office.  No other emoluments are to be received from the U.S. or any individual state, though.

How Is Trump Violating the Emoluments Clause?

Trump’s attorney has eluded to the fact that the Emoluments Clause doesn’t apply to him, stating “…fair value exchanges …have absolutely nothing to do with an office holder”.  CREW urges otherwise, arguing it’s widely acknowledged the clause does in fact include the president.

What actions does the lawsuit claim violate the Constitution then?  CREW claims that Trump has violated and “…is poised to do so continually” the Emoluments Clause in a number of ways:

  • leases held by foreign-government-owned entities in New York’s Trump Tower;
  • room reservations and the use of venues and other services and goods by foreign governments and diplomats at Trump’s Washington D.C. hotel;
  • hotel stays, property leases, and other business transactions tied to foreign governments at domestic and international establishments owned by Trump;
  • payments from foreign-government-owned broadcasters related to foreign versions of the television program “The Apprentice” and its spinoffs; and
  • property interests or other business dealings tied to foreign governments in numerous other countries, including current projects in China, India, United Arab Emirates, Indonesia, Turkey, Scotland, Philippines, Russia, Saudi Arabia, and Taiwan.

What’s the short version?  Basically, any payments (not just profits) received that come from a foreign state (or its agent) violate the Emoluments Clause because it creates too great of a conflict of interest, not allowing Trump to be impartial in the decisions he inevitably has to make as president.  Trump’s plan to have his sons take over the leadership and management, without relinquishing ownership or establishing a blind trust, without receiving consent from Congress, is, according to the organization, inadequate.

As far as the Domestic Emoluments Clause goes, CREW argues payments and/or benefits received from domestic governments through Trump’s numerous properties and businesses are a violation as well.

Will CREW Win Their Case?

The Emoluments Clause isn’t an area that’s been widely litigated.  Traditionally, past presidents have chosen to divest themselves from interests that create conflicts.  Earning profits from an established business that happens to be a hotel with foreign diplomats as guests doesn’t equate to profiting from a government-held position.  These profits were all there before Trump was even elected.  Does it create a conflict of interest, though?  Absolutely, yes.  Does it risk a greater chance of corruption by foreign influence?  It certainly could.

The purpose behind including the Emoluments Clause in the Constitution was to prevent corruption.  Just as CREW points out in their lawsuit, Trump’s business interests create unprecedented conflicts of interests and unprecedented risks of influence by foreign governments.  So while the profits may not have originated from Trump’s political influence as president, Trump’s business portfolio certainly has the capacity to create future conflicts.

Imagine, for example, hotel stays by foreign government officials skyrocket in the hopes of getting a more favored political outcome from the owner of said hotel.  Even the most honest-intended person would have trouble making decisions that affect their personal financial interests.  Even so, while Trump’s vast business portfolio definitely creates numerous conflict of interest issues, I imagine, even if found unconstitutional, it wouldn’t be too hard for him to get Congressional approval since the GOP controls by majority.

Can a Miscarriage Be a Wrongful Death Claim?

A recent decision from the Alabama Supreme Court allows a woman to proceed forward with a wrongful death suit against her obstetrician after suffering a miscarriage.  While the decision has rocked a few boats, the Court only affirmed existing laws that allow a person to sue for the wrongful death of an unborn child.

Miscarriage Wrongful DeathLet’s Check the Facts

Two days after finding out she was pregnant, Kimberly Stinnett experienced abdominal cramping and fever.  After an evaluation that included ultrasound, an obstetrician determined that Stinnett, based on the findings from the evaluation and Stinnett’s prior medical history, was experiencing an ectopic pregnancy.  An ectopic pregnancy occurs when a fertilized egg attaches itself in a place other than inside the uterus, which makes it impossible for a fetus to develop.

The obstetrician performed a dilation and curettage, commonly referred to as a “D&C”, which is a surgical procedure used to determine whether a pregnancy is intrauterine (within the uterus) or ectopic. Stinnett testified that the obstetrician told her, as a result of that surgical procedure, the pregnancy wasn’t ectopic, but that she believed a miscarriage had taken place.  The obstetrician, however, testified that she still had a strong suspicion that the pregnancy was ectopic and therefore ordered a drug commonly used to treat ectopic pregnancy.  The drug is intended to cause the end of pregnancy and was administered to Stinnett.

Stinnett attended a follow up appointment, in which she saw her original doctor.  A follow-up ultrasound showed that Stinnett was having a failing intrauterine pregnancy, possibly as a result of the drug the previous obstetrician had given her.  Several weeks later, Stinnett suffered a miscarriage.

Stinnett brought suit against the obstetrician and claimed:

  • Medical negligence for performing the D&C and administering the drug,
  • That because her pregnancy was not ectopic, the D&C should not have been performed nor should the drug should have been administered, and
  • That the obstetrician’s actions violated the applicable standards of care and proximately caused the loss of her baby.

In addition to her medical malpractice claims, Stinnett claimed wrongful death of her unborn fetus under Alabama’s wrongful death of a minor statute.  The personal injury claims stemming from the medical malpractice suit were allowed to go forward, but the lower court dismissed the wrongful death portion of the suit.  Stinnett appealed.

Why Did the Alabama Supreme Court Allow the Wrongful Death Claim to Move Forward?

Among other arguments, the obstetrician’s main argument rested on the idea that the wrongful death of a minor statute didn’t apply to her due to an exemption within another Alabama statute limiting criminal liability for licensed physicians who, through mistake or unintentional error, caused the death of a previable fetus.  The argument rested on the idea that if criminal liability was exempted, so too should civil liability.

The lower court agreed, but the Alabama Supreme Court ruled otherwise, stating, “[I]t simply does not follow that a person not subject to criminal punishment under the Homicide Act should not face tort liability under the Wrongful Death Act”.  The high court found doing so would, essentially, defeat the purpose (to prevent homicides) of allowing wrongful-death claims based on negligence in the first place.

The court remanded the wrongful death claim back down to the lower court, which means Stinnett has a chance to argue it in front of a jury.

Will She Win?

This case can appear a bit convoluted because it involves both wrongful death, as well as medical malpractice, but they essentially coincide with each other.  Wrongful death suits are brought when a person dies due to the negligence or misconduct of another.  In order to bring a successful wrongful death cause of action, Stinnett will need to prove:

  • The death of a human being,
  • Was caused by the obstetrician’s negligence (or intent to cause harm), and
  • That Stinnett is suffering monetary injury as a result of the death of her fetus (think losing future income from a spouse).

Alabama law allows wrongful death suits on behalf of previable fetuses, so Stinnett will have no problem proving the first element; it’s the other two elements that will be harder to prove.

Medical malpractice is one circumstance a plaintiff can use to prove a wrongful death claim.  If Stinnett can prove that the obstetrician acted negligently in a way that another competent obstetrician in similar circumstances would not have acted, then she’d have a good argument for medical malpractice.

Remember when I said Stinnett filed suit for medical negligence and wrongful death?  Even though the wrongful death suit was originally dismissed, the personal injury claims proceeded forward and a jury found in favor of the obstetrician.  What does that mean?  That the doctor wasn’t liable, which implies she followed the appropriate standard of care.  If that’s the case, then Stinnett won’t have much luck proving a wrongful death claim.

The Alabama Supreme Court noted in their decision that it wasn’t clear whether the jury’s decision rested on the obstetrician’s standard of care or whether it rested on the theory that Stinnett didn’t suffer any damages.  For those reasons, Stinnett has the option to proceed forward and, if she chooses to, she’ll need to prove both negligence with respect to the standard of care and that she suffered monetary injury.

Can the Police Shoot Your Dog For Barking?

A federal court recently issued a ruling that has got the media in a frenzy.  Can police officers now shoot an animal for moving or barking when entering a home?  While the court ruling did order a police shooting of 2 in-home pets as justified, it doesn’t give the police a sweeping authority to shoot your dog.

Let’s Break It Down

The facts of this case are important to the ruling because the decision is based on the totality of the circumstances.  A warrant was issued out of a Michigan court that gave the Battle Creek Police Department (BCPD) permission to search a local residence, the owner a known gang affiliate, for drugs.

According to court documents, as officers began to execute the search warrant, officers noticed dogs “…barking aggressively, ‘digging and pawing,’ and ‘jumping’ at the window.”  An officer testified that upon entering the home, a 97-pound pit bull lunged at him and it was then that the officer fired his gun at the dog, only injuring it.   The dog retreated to the basement.

Police Shoots Barking DogThe officer further testified that he could not safely clear the resident’s basement because the already injured pit bull was standing at the bottom of the steps.  It was then the officer fired two fatal shots into the already injured dog.

The same officer additionally testified that the second pit bull was standing across the room and barking at the officers, so he fired shots at the second dog.  The dog ran to the corner of the room and caught the eye of a second officer, who then fired shots at the second dog.  An officer then testified that because the dog had several wounds, he “…‘didn’t want to see it suffer’ so he put her out of her misery and fired the last shot”.

Killing a Pet Constitutes a Seizure under 4th Amendment

Many courts have widely agreed that deadly force against a household pet constitutes a seizure.  We know that seizures are unconstitutional under the 4th Amendment if they’re unreasonable.  It’s also been established that killing a pet is reasonable only if the pet poses an imminent danger and force is unavoidable.

Hindsight is 20/20

Ever heard the expression “hindsight is 20/20”?  It’s easy for a person to see things that seem obvious after-the-fact, but it’s the circumstances before-the-fact that matter most when answering these kinds of questions.  Courts focus on the perspective of the officer on the scene and not the perspective of the perfect vision that hindsight offers.  It all comes down to whether or not the pet poses an imminent threat from the perspective of the officer.

This is important because anyone reading those facts above after-the-fact could easily argue the officers acted unreasonably against the two dogs.  Shooting the first dog when the dog lunged at the officer is one thing, but shooting an injured animal that’s simply barking is another story.  But, again, the courts don’t get the pleasure of making those judgments based on hindsight and they must consider the perspective of the officers in the moment of the situation.

Court Says Fear of Imminent Threat from Dogs Was Reasonable

There’s no argument that executing a search warrant lends to stressed circumstances for police officers and those officers are often forced to make split-second judgements based on unknowns.  The court found that due to the already high nature of the threat against the officers executing the warrant in a home of known gang affiliates, the officers were understandably on high alert.

The shooting of the first dog, according to the court, was warranted because 1) it was aggressively barking, 2) it lunged at the officer, 3) even after the dog had already been shot by the officer, the dog continued to aggressively block the officers entrance into the basement, and 4) the officers could not safely clear the basement while the dog was preventing the officer to do so.  The court found the shooting of the second dog reasonable because both officers testified they could not safely clear the basement with the presence of the barking dog.

Conceptually, I agree with the standard used by the court—if an animal poses an imminent threat, then force is reasonable.  However, I’m not convinced, at least that the second dog, posed an imminent threat to the officers in this situation.  Although the court didn’t actually create a bright line rule giving police the power to shoot any moving or barking animal inside a house, actual application of this ruling could have potential repercussions for abuse.

Can Too Much Caffeine Lead to a DUI?

Has it come to this?  At least 68 million Americans drink coffee every single day.  If those staggering numbers are any indication of the number of people that are consuming caffeine on a daily basis, consider the fact that that number is for coffee consumption and doesn’t even include soda.  Does that mean all of us consuming caffeine need to worry about getting a DUI?

A California man, Joseph Schwab, was pulled over on suspicion of driving under the influence back in 2015.  Schwab was given a breathalyzer test, which he passed with flying colors.  Although the breathalyzer showed 0.00% blood alcohol level, Schwab had his blood taken for a toxicology test after being taken to county jail.  Results, again, came back 100% in favor of Schwab.

Charges weren’t initially filed against Schwab, but ten months later misdemeanor driving under the influence of a drug charges were filed.  A second set of test results sent from an outside testing facility showed caffeine was the sole substance in Schwab’s blood.

Chief Deputy District Attorney, Sharon Henry, for Solano County stated, “the charge of driving under the influence is not based upon the presence of caffeine in his system.”  Schwab’s attorney, Stacey Barrett, however, stated she was not provided with any evidence supporting a theory of any other substance within Schwab’s system.  Barrett subsequently filed a motion to dismiss the charges against Schwabb.

Can Caffeine Consumption Really Get You a DUI?

Maybe, but it’s probably not really very likely.  Under California law, a drug is any substance, illegal or legal, that isn’t alcohol that might “impair, to an appreciable degree” a driver’s capabilities behind the wheel to drive like a sober person.  Were you able to drive with caution?  Was your driving that of a sober person of ordinary prudence under similar circumstances?

Caffeine works by stimulating the central nervous system, the heart, muscles, and the centers that control blood pressure.  Theoretically, if enough caffeine is consumed, then it’s possible it could have effects that could impair a driver’s capabilities to drive safely.  Typically, though, side effects of consuming caffeine have much smaller effects such as stomach aches and insomnia.

How, Then, Can Schwab Be Charged?

According to the District Attorney’s office, the State decided to go ahead & charge Schwab because drug tests don’t catch every drug.  The State was convinced that because Schwab was driving so erratically, he must have been on something.  Remember, though, that since this was a criminal charge brought against Schwab, the State has to prove beyond a reasonable doubt that he was driving under the influence of drugs.

Even though caffeine is a substance that can affect the nervous system, brain, or muscles, all things that define a drug under the applicable law, a prosecutor would be hard-pressed to prove to a jury beyond a reasonable doubt that the consumption of caffeine, alone, inhibited Schwab’s abilities to drive enough to pose any danger.  Observations of an arresting officer can be relied upon heavily, but it’s not necessarily enough.

Under California law, driving erratically isn’t necessarily conclusive enough to prove driving under the influence—it’s only a factor a jury can take into consideration.  An arresting officer can testify to 1) the unsafe manner in which you drove, 2) your physical appearance, and 3) your performance on a field sobriety test.  According to the officer, Schwab cut her off and was driving erratically.  In Schwab’s case, this would have been the only evidence, at least that’s been made public, that the State had to go on since blood tests came back negative.

These are the likely reasons the District Attorney’s office conceded and just filed their own motion to dismiss the charges against Schwab, despite the fact they claimed forensic lab experts stated it was “highly likely the defendant was under the influence of a drug.”