Archive for the 'Laws' Category

Immigration Ban 101: Understanding Trump’s Executive Order

Trump’s executive order on immigration has created mass confusion, waves of legal battles, and incited outrage across the nation.  In the chaos that ensued after the executive order dropped, legal professionals began filing lawsuits that eventually led to a temporary suspension of the ban. Although the initial decision by the Ninth Circuit Court of Appeals is foretelling the executive order would ultimately be held unconstitutional, let’s take a closer look at the immigration policies Trump wants to implement.

Immigration Ban

Who’s Covered?

  • The order suspended new refugee admissions for 120 days, which suggests new vetting procedures were on the way. Although Trump says he wants a heavier regulated process, the U.S. refugee admissions system is already strict.  Refugees typically apply through the Office of the United Nations High Commissioner for Refugees (UNHCR), which then goes through several databases, including the State Department, the National Counterterrorism Center/FBI’s Terrorist Screening Center, the Federal Bureau of Investigation, Interpol, Drug Enforcement Administration, and the Department of Defense.  Currently, it can take anywhere from 18 to 24 months for the vetting process.
  • The order suspended the Syrian refugee system Last year, Trump’s Vice President, Mike Pence, tried to stop resettlement of Syrian refuges into the State of Indiana, but was blocked by an appeals court who ruled his attempt as “nightmare speculation”.  The order also requests review of a state’s right to accept or deny refugees for resettlement in their state, which is no doubt a nod to Pence.
  • The order bans entry into the U.S. from seven majority-Muslim countries for 90 days. Those countries include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, but more countries could be added at any point under the discretion of the Department of Homeland Security.  The ban was unclear as to whether the restriction included legal U.S. residents, which created chaos for individuals that were traveling when the order hit.  The Department of Homeland Security later clarified that some legal residents that didn’t pose a legal threat would be allowed in.  I’m not sure you can call that much of a clarification, though, as it’s still vague.
  • The ban included denial of entry of dual-nationals. This means even if you hold a passport from another country, but also one from one of the 7 above-listed countries, you could be banned from entering the U.S.
  • Prioritize refugees based on religion. While Trump claims it isn’t a ban on Muslims, there is a small provision within the executive order that says priority should be given to those of a minority religion, implying those religions other than Muslim will be given preference.
  • Lower the total number of refugees to be accepted from any country in 2017. This isn’t a new concept, as each year the president determines how many refugees will be admitted into the U.S., but the number is down from the previous 110,000.  While the U.S. has traditionally been one of the largest refugee resettlement countries in the world, this could easily change as Trump lowered the number to 50,000.

What Can We Expect to See Next?

While the current executive order was blocked by a federal court, this could all be a moot point as Trump has already announced his plans to rescind the current order and issue a new one that’s tailored around the Ninth Circuit Court of Appeal’s decision.  Sounds like a façade, only to appease the constitutional issues raised by ban, as Trump has made his intentions clear about who he wants to allow in the country.

One of the main arguments against the ban is that it’s unconstitutionally discriminatory based on religion.  Even if a new executive order is issued, it doesn’t seem likely Trump can avoid another lawsuit for discrimination because who he wants to prohibit from entering the country is entirely grounded on a person’s religion and nationality.  At this rate, we’re likely to see a constant stream of legal battles over the next 4 years.

Retirement May Have to Wait After Trump’s Latest Executive Order

The presidential orders continue to come thick and fast from the Trump administration.  One of President Trump’s most recent orders, titled Presidential Memorandum on Fiduciary Duty Rule, takes aim at deregulating those who invest your retirement funds.  It does this by undercutting something we have discussed on this blog before–the Obama Administration’s changes to the duty somebody investing your retirement funds has to you.

Planning for retirement is always challenging.  With that in mind, you always want the best possible advice.  However, the standards the people giving you that advice are held to might surprise you–and not in a good way.  The fiduciary duty rule was designed to make sure your always got the best advice possible.  So let’s take a look at exactly what the rules being targeted do and how Trump’s new memorandum will affect them.

What Are the Changes Being Targeted?

RetirementEarly last year, the Obama administration announced through the Department of Labor that they were changing the rules when it came to the duties a retirement investor owes their clients.  As it was, retirement advisors generally owed their clients “suitable advice.”  The new rule applied a higher level of obligation, known as a fiduciary duty, between client and retirement investor.

fiduciary duty is a legal duty to put the interests of a person or party above all else; violating this duty leads to legal repercussions. Somebody who has a fiduciary duty is called a fiduciary. In 1974, the Employee Retirement Income Security Act (ERISA) was passed to help create standards and practices for retirement and health plans. The original act applied a broad rule, assigning fiduciary duty to those rendering investment advice regarding a retirement plan for compensation. However, one year after ERISA was passed, the act was amended so that the application of fiduciary duty to retirement advisors was substantially limited.  Thus, the usual standard applied to retirement investors has been, as mentioned above, “suitable advice.”  Suitable advice requires an advisor to provide investing suggestions which the adviser believes are, as the name of the advice suggests, suitable to the client’s interest.  This is as opposed to providing advice that puts the interests of their client above all else–as per a fiduciary duty.

So just how much damage can entrusting your retirement to an advisor who is held to less than a fiduciary standard do? While there are certainly advisors who will provide non-conflicting advice regardless of the standard they are held to, the damage caused by conflicted advisors is substantial.  Leading up to the rule change, the Obama administration issued a study estimating that conflicts of interest cost retirement plans about $17 billion a year. The Department of Labor estimated that conflicted investment advice “could cost IRA investors between $95 billion and $189 billion over the next 10 years and between $202 billion and $404 billion over the next 20 years.”

The way the lack of fiduciary duty might be costing you money is where an retirement advisor suggests investment opportunities that provide them better commissions instead of providing you better returns. It is very common for companies to offer percentage commissions or rewards to advisors on certain investments or types of investments.  For example, the company Table Bay offered “a Maserati to advisers who sell at least $7.5 million in annuities in 2014 and a BMW, Range Rover, or Porsche to those with at least $6 million in sales.” These sort of deals can lead a retirement advisor to recommend investments with the best commissions as opposed to investments that are best for your retirement portfolio—leading to the costs described above.

Looking at these facts, this rule change certainly seems like it’s pretty beneficial to the public.  However, it has had its critics since it was first announced.  Those opposed to the rule have said that the changes may push some advisors out of the market by decreasing their profits.  They have also argued that it will lead retirement investors to offer services to lower income individuals.  While there hasn’t much evidence to indicate investors would abandon such a substantial market, it seems President Trump has been listening intently to the fiduciary duty rule’s detractors as he took the time to focus an entire memorandum on gutting the rule.

What Exactly Does the Presidential Memorandum Do?

A Presidential Memorandum has less formalities than an executive order, but carries similar force.  This means that, because the fiduciary duty rule was an agency policy change by the Obama administration as opposed to a Congressional Act, the rule is the sort of thing Trump can target directly through executive orders.

As it is, his memorandum is slightly more measured in its approach.  The memorandum states that the fiduciary duty rule is not consistent with the policies of Trump’s administration.  With this in mind, the memorandum requires the Secretary of Labor to review the rule in order to ensure that three tenants apparently crucial to any regulation under Trump’s watch.  First, the Secretary needs to determine is the rule, or any element of it, is likely to harm investors due to a reduction of access to advice–essentially ask advisors whether they will offer less services if they have to provide advice exclusively in the best interests of their client.  Second, whether the rule, or any of its parts, has caused disruption in the retirement investment industry sufficiently to have a negative effect on investors or retirees.  Third, the Secretary must determine whether the rule will cause an increase in litigation–an almost certain byproduct of holding investors to a higher standard of duty–as well as an accompanying increase in price for those seeking retirement services.  If, after a review of the legal and economic impact of the rule, it is determined that any of the three points in the memorandum are at issue then the Secretary of Labor must get rid of–or at least revise–the fiduciary duty rule.

Is This the End of the Fiduciary Duty Rule?

Given how broad the three elements in the memorandum are, it’s a pretty good bet that the fiduciary duty rule will be done for in the next few months.  At a minimum, we can expect a substantial delay before the rule takes effect.  Unfortunately, this change is part of a trend of demanding deregulation even where it doesn’t necessarily make sense.  What could have been a substantial step in consumer protection seems like it will, unfortunately, never materialize.

Abortion: Arkansas Law Hopes to Protect Father’s Rights

A new Arkansas law that will go into effect later this year will allow a husband to sue a doctor in order to stop his wife from getting an abortion. Known as the Arkansas Unborn Child Protection from Dismemberment Abortion Act, or “Act 45”, it prohibits a particular type of abortion known as “dismemberment abortion.” The law provides no exemption for spousal rape.

Historically, Father’s Rights were to Prevent Abortions

abortionFathers historically have no legal rights with regard to their wife or the mother of their child choosing to have an abortion. If a man’s pregnant partner chooses to have an abortion, the father’s consent is not a legal requirement. A woman can choose to abort the pregnancy despite the father’s objections. In fact, the Supreme Court in Planned Parenthood v. Danforth ruled that laws requiring a spouse’s consent to be unconstitutional. The court reasoned that only one partner’s decision on abortion can prevail, and that the balance weighed in the woman’s favor.

Moreover, the Supreme Court concluded in Planned Parenthood v. Casey that the father does not have a legal right to be notified of an abortion. Most women discuss an abortion with their significant other, but those who do not may be in an abusive relationship. Therefore, requiring spousal notification places an undue burden on women who may fear for their safety.

What Kind of Abortion Does the Arkansas Law Stop?

Arkansas Act 45 prohibits a practice known as dilation and evacuation, also known as dismemberment abortion, in which fetal materials are removed from the womb through surgical instruments. It is the safest and most common method of abortion in the second trimester and is used in 95 percent of second-trimester abortions. It occurs after 12 to 14 weeks of pregnancy.

How Will the Arkansas Law Work?

Under the new Arkansas law, a father can sue a doctor to stop an abortion if the wife is in her second trimester and having a dilation and evacuation procedure. This means that the wife is over 12 weeks pregnant. What is controversial about the law is that it allows the father to stop an abortion even if he raped his wife.

Is the Arkansas Law Constitutional?

The American Civil Liberties Union (“ACLU”) of Arkansas argues that it is not. They intend to challenge the new state law as soon as practically possible.

The ACLU argues that the law not only bans what’s considered the safest and most common method of second trimester abortions, but it also does not make any exception for victims of spousal rape. This means that a wife’s rapist husband could sue to prevent an abortion.

Under Roe v. Wade, the Supreme Court established that it is a woman’s right to have an abortion until approximately 22 weeks of pregnancy or when the fetus is considered viable outside the womb. The new law puts a limitation on the woman’s ability to abort before viability, even though it is a guaranteed right. For this reason, it should not be considered constitutional.

Additional Concerns about the Law

While the Arkansas law affords the father more rights, it also strips away rights that have historically been given to the woman. The ACLU is concerned that with the limitation on dilation and extraction abortions, women may opt to use a procedure that is less safe. Such a procedure can put both the unborn fetus and the woman’s life at risk.

Impeach Trump: Is It Inevitable?

To go from President Obama, who had so few scandals, to President Trump, who has so many, seems almost like we’re living in the Twilight Zone. Every day President Trump seems to be in the news for one reason or another: his National Security Adviser Michael Flynn resigning due to undisclosed ties with Russia, for his senior advisor Kellyanne Conway’s endorsement of Ivanka Trump’s clothing line, or for what can only be described as an unprecedented and bizarre hour long press conference where he berated various news outlets. And let’s not forget his insistence that he would’ve won the popular vote for his election had there not been millions of people committing voter fraud, despite no evidence to support his declaration.

While many are upset about President Trump’s presidency, the only way to remove him from office is through a process known as impeachment. Legal experts suspect that Trump’s recent dealings with China may be an impeachable offense.

What is Impeachment?

In laymen terms, impeachment is an accusation of wrongdoing committed by the sitting President. The House of Representatives can vote to impeach, or kick a President out of office, and the Senate tries the case. The text of the Constitution states:

“The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

Impeach TrumpHistory of Impeachment

Two U.S. Presidents have been impeached by the House of Representatives – Andrew Johnson in 1868 and Bill Clinton in 1998. President Johnson was accused of violating the Tenure of Office Act. President Clinton was impeached for perjury and obstruction of justice. Both were acquitted at trials held by the Senate.

President Nixon Scandal

It may be shocking to learn that President Nixon was never impeached. He resigned before the impeachment process began but likely would have been removed from office for Obstruction of Justice and Abuse of Power.

A President can be found to obstruct justice if he makes misleading statements or withholds relevant evidence to investigative officials and makes false or misleading public statements in order to mislead the people to believe the President was not involved in any wrongdoing.

Abuse of Power can be found if a President uses his office and title to obtain something. The President has a duty to act faithfully to execute the office of the President and, to the best of his ability, preserve, protect, and defend the Constitution.

What about China?

Trump has been given a 10-year trademark on his name for construction from China, a trademark he had been trying to obtain as a private citizen for a decade prior to becoming the President. The timing is particularly suspect having only obtained the trademark one month after taking the oath of office and one week after a conversation with Chinese President Xi Jinping where Trump endorsed the One China policy. Did Trump receive a favor from China, and will Beijing use its influence over Trump’s business to control the President?

This business deal with China may violate the Emolument Clause of the Constitution which prohibits the President from accepting a gift or anything of value from a foreign government or entity. In this way, the trademark could be considered unconstitutional and an impeachable offense, specifically an abuse of power. An investigation by the Senate could reveal any number of things. President Trump may have accepted the trademark from China in exchange for endorsing the One China policy after previously placing it in doubt. In the alternative, perhaps he endorsed the One China policy in order to obtain the trademark for his business.

Without a more formal investigation, it is impossible to determine whether Trump will be impeached for violating the Emolument Clause. However, if he withholds evidence or lies about any secret dealings with China and is found to violate the Emolument Clause, he can also be impeached for Obstruction of Justice.

At least at first blush, it certainly seems that Trump received a gift from China. We will have to wait and see whether Congress is willing to investigate, or if they continue to play partisan politics.

End of Obamacare: What Happens When Trump Repeals the ACA?

The GOP has hated what they’ve coined “Obamacare” from the start. Obamacare, also known as the “Affordable Care Act,” certainly has its kinks. For instance, high deductibles for its Bronze plan users make up about 20 percent of its customers. Nevertheless, the fact of the matter is that it has helped millions of people, most of whom are low-income or working class, who otherwise would not have health insurance. It has done this without raising taxes.

President Trump promised to repeal Obamacare as soon as he was elected. When he finally took office, he again promised to repeal Obamacare. Initially, indications from the GOP were that a repeal would occur within the first 100 days of Trump’s presidency. The repeal seems to have lost its initial steam.Obamacare

Possible Timeline

The Senate and House of Representatives started the repeal process in earnest. In January, both the House and the Senate passed a budget resolution that set the stage for introducing a bill that would strip major provisions from Obamacare.

In order to repeal Obamacare, the next step is for President Trump to the sign the budget resolution bill while simultaneously introducing a bill to replace key provisions of the Affordable Care Act, but the GOP seems to have faltered at this step. What they initially wanted to happen swiftly is now being pushed back to the end of 2017, primarily because the party is still trying to figure out what to replace Obamacare with.

Even when a replacement for Obamacare is presented and signed by President Trump, there will be delays built into the repeal bill in order to ease the transition. No one knows how long the delay will take, but it’s presumed a delay of two to four years is likely. For this reason, major changes are unlikely to affect Affordable Care Act consumers right away.

Why Delay Repeal?

For one, there are many parts of Obamacare that are popular. Under Obamacare, insurance companies cannot deny coverage based on a preexisting condition, and children stay on their parents’ plan until they turn 26. These provisions are popular among the majority of Americans.

Moreover, the Affordable Care Act has insured over 20 million people who otherwise wouldn’t have health insurance. Republicans have been bombarded with constituent concerns about the potential loss of coverage. There are stories of everyday Americans who say they would’ve died had it not been for the Affordable Care Act.

How Will Repealing Obamacare Affect Americans?

Under Obamacare, millions of Americans are insured and can’t be turned away despite pre-existing conditions. Senior citizens pay less for Medicare coverage and for their prescription drugs. Many Americans receive free contraceptives, mammograms, colonoscopies and cholesterol tests, Repealing Obamacare could threaten all these advantages.

For instance, “repairing” Obamacare could mean higher premiums and deductibles for those enrolled on Medicare, most of whom are on fixed incomes. Companies with at least 50 employees may no longer be required to provide affordable insurance to their employees who work more than 30 hours a week. This could affect millions of employees who work at least 30 hours per week but less than 40 hours. In addition, companies will no longer have to keep children on their parents’ health insurance plans until they turn 26.

Finally and perhaps most devastating, a repeal on Obamacare would no longer require nearly all Americans to obtain insurance or pay a penalty. Millions of Americans covered by the Affordable Care Act may be dropped by their insurance carrier with no way of obtaining alternative insurance.



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